Welcome to Labor of Law, our labor and employment dispatch on the big cases, issues and trends. On the clock: PPP data reveals law firms that sought relief; New suits confront Facebook and Oracle board diversity; SCOTUS broadly widens L&E shield for religious school. Plus: Pinterest hires Wilmer Hale, and a California suit confronts tension over child care and working from home in the virus era.

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Inside the PPP Data: Which Law Firms Obtained Coronavirus Relief

At least nine Am Law 200 firms that received the million-dollar loans cut jobs or salaries before or after they received the loans, according to an analysis of Small Business Administration data and firm announcements on expense cuts, my colleague Dylan Jackson reports at Law.com.

Still, some loan recipients said the SBA loans allowed them to avoid further austerity measures and preserve some jobs and pay.

At least 47 Am Law 200 firms received PPP loans through the SBA as part of a stimulus program to stem the rising tide of unemployment catalyzed by the coronavirus pandemic.

A Kasowitz Benson Torres spokesperson said the PPP loan, in addition to "substantial cost-saving measures and greatly reduced partner distributions," allowed the firm to retain hundreds of employees at full salary and benefits "without interruption."

The majority of law firms that received PPP monies are small and midsize firms.

Wigdor received a loan between $350,000 and $1 million. Whistleblower firms Labaton Sucharow, Phillips & Cohen and Katz, Marshall & Banks received PPP loans. Outten & Golden received a loan between $2 million and $5 million. Sanford Heisler Sharp's loan was between $1 million and $2 million. More reading…

WIPL is known for having some of the most engaging and energizing keynote speakers attend to share their thoughts, experiences, war stories and tips on effective leadership. And this year is no exception. This year, we are grateful to welcome two remarkable women come and inspire us: Tina Tchen, the President and CEO of the "Times Up" Legal Defense Fund and Paula Boggs, Founder of Boggs Media LLC and Former Executive Vice President, General Counsel and Secretary, Law and Corporate Affairs at Starbucks from 2002-2012. READ MORE

 

Oracle, Facebook Sued Over Board Diversity

New suits against Oracle and Facebook claiming a lack of board diversity come as corporate America reckons with calls for greater diversity and support for minority workers in light of escalating racial tensions across the country, my colleague Alaina Lancaster reports.

Oracle remains one of the oldest and most egregious 'Old Boy's Club' in Silicon Valley," plaintiffs lawyers at Bottini & Bottini in La Jolla, California, and Renne Public Law Group in San Francisco said in the complaint. "A sign advising applicants 'Blacks Need Not Apply' might as well hang at the entrance to the Company's headquarters at 500 Oracle Parkway in Redwood Shores, California."

Bottini & Bottini filed a similar lawsuit against Facebook. The shareholder derivative complaint filed in the Northern District of California alleged Facebook CEO Mark Zuckerberg "wants Blacks to be seen but not heard."

"Facebook's approach to diversity has been characterized by tokenism: make a small gesture to satisfy appearances, but don't make any underlying substantial change," the complaint asserts. "The message at Facebook is set at the top—by Zuckerberg and the rest of the Board of Directors."

Representatives from Oracle and Facebook did not immediately comment on the suits.

 

'Wrong on the Facts': Sotomayor Denounces Ruling that Broadens Bias Shield for Religious Schools

The U.S. Supreme Court's Wednesday decision extending an exemption from federal job bias laws for church-run schools will open a door to discrimination against thousands of lay teachers, a dissenting Justice Sonia Sotomayor said.

A 7-2 majority, led by Justice Samuel Alito, ruled that whether religious school teachers fall under the so-called "ministerial exception" depends "at bottom" on the scope of an employee's work.

In the case of two elementary Catholic school teachers who claimed they were fired because of age and disability discrimination, Alito wrote: "As elementary school teachers responsible for providing instruction in all subjects, including religion, they were the members of the school staff who were entrusted most directly with the responsibility of educating their students in the faith. A religious institution's explanation of the role of its employees in the life of the religion in question is important."

But Sotomayor, joined by Justice Ruth Bader Ginsburg, disagreed. The majority reached its result "even though the teachers taught primarily secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic," Sotomayor said.

Sotomayor called the majority decision "profoundly unfair." She continued: "The court is not only wrong on the facts, but its error also risks upending antidiscrimination protections for many employees of religious entities."

>> And the day's other major ruling: The justices said the Trump administration had legal authority to allow private employers with moral or religious objections to opt out of providing birth control health insurance required under the Affordable Care Act. The New York Times has more here.

 

Who Got the Work

>> A Wilmer Cutler Pickering Hale and Dorr team led by partner Danielle Conley (at left), co-chair of the firm's anti-discrimination practice, will conduct a "comprehensive and independent review of Pinterest's workplace culture," the company said this week. The Washington Post reported last month that two Black women in public policy roles at the company had alleged racial discrimination. Pinterest said in its announcement: "We know that building a diverse, equitable and inclusive workplace for every employee is fundamentally important for Pinterest. Our decision to commission an independent review reporting to the Special Committee is a critical step. We look forward to doing an objective assessment to identify opportunities for improving our culture and our company.

>> Gruenberg Law senior trial attorney Daphne Delvaux in San Diego is representing a California woman who said she was fired "because her young children were making noise during business calls while she was working from home because of the coronavirus pandemic," The New York Times reports. Delvaux said in a statement: "Working mothers often have to downplay their children's demands on them in an effort to appear committed and loyal to their employer. But this became impossible during the pandemic when our childcare options evaporated overnight." A spokesperson for the defendant, insurance brokerage Hub International, told the Times: "While we can't comment on pending litigation, Hub is proud to have successfully transitioned 90 percent of its 12,000-plus employees to working remotely from home throughout the Covid-19 pandemic." Read the complaint here.

>> A team from Mayer Brown—including Nicole Saharsky and Brian Netter—have made appearances on behalf of U.S. women's soccer in a discrimination case in federal trial court in California. Saharsky, who joined Mayer Brown from Gibson, Dunn & Crutcher in 2018, is co-leader of the firm's Supreme Court and appellate practice, and Netter is a litigation partner and co-chair of the ERISA litigation team. The players are also represented by a team from Winston & Strawn, which filed the closely watched case. The U.S. Soccer Federation is represented by lawyers from Latham & Watkins.

 

Around the Water Cooler

Courts and cases

JPMorgan Pay Bias Case Tackles Scope of DOL Enforcement. "JPMorgan Chase & Co. lost its most recent bid to nix Labor Department claims that the financial giant discriminates against women in pay, in a case that some attorneys say exemplifies hardships that federal contractors face in defending lengthy agency enforcement actions." [Bloomberg Law] Read the decision. Lawyers at Polsinelli said in a blog post about the case: "This decision continues an ongoing trend of ALJ rulings permitting OFCCP to seek and rely upon alleged evidence of discrimination outside of the review period. Because OFCCP can take years to complete complex audits, a contractor's potential post-review period liability can extend longer than its liability for the actual review period."

GM's Legal Battle With Fiat Chrysler Quashed by Federal Judge. "A federal judge dismissed a General Motors Co. lawsuit accusing Fiat Chrysler Automobiles NV of bribing union officials to gain an advantage on its labor costs, in an unusual legal standoff between rival automotive giants. [WSJ] Read the court's ruling here. Earlier this week, the Sixth Circuit refused to allow the trial judge, Paul Borman, to compel a settlement meeting between the CEOs of GM and Fiat Chrysler.

Workplace culture

In-House Counsel Need to Ensure Diversity & Inclusion Program Opens Up Applicant Pool. "GCs are also often caught between legal views of 'affirmative action law and compliance,' that are much different than the business, operational or human resource approach for fostering a diverse and inclusive workplace," Kimya Johnson, senior counsel at Ogletree, Deakins, Nash, Smoak & Stewart in Philadelphia, said. [Corporate Counsel]

Complaint Alleges Facebook Is Biased Against Black Workers. "An African American manager and two job applicants who were rejected by Facebook filed a complaint against the company Thursday, alleging that the social media giant is biased against black employees in evaluations, promotions, pay and hiring practices. The complaint, filed with the Equal Employment Opportunity Commission (EEOC), the federal agency that administers civil rights laws in employment, is the latest salvo in mounting tensions over how Facebook handles issues of race." [The Washington Post]

Covid-19

The COVID-Era Office Will Be More Collaborative, Not Less. "The big change is that, of an office of about 85 desks and about 75 employees in our New York office, there's only going to be 28 to 30 people in at any one time. Typically what we're suggesting is that you go to the office for a few purposes. One is team collaboration, socialization. The second would be to do things in the office that you couldn't do at home, such as use our resource library, et cetera." [Slate]

Workplace Contact Tracing Apps—Legal Implications and Considerations "Employers looking to implement contact tracing policies must be mindful of the practical challenges and multiple regulatory schemes. Seyfarth attorneys examine several of these issues implicated by the use of contact tracing apps in the workplace." [Bloomberg Law]

Companies Choose Furloughs Over Layoffs to Manage Coronavirus Slowdown. "Even though a furlough is a continuing expense, the costs of one-time layoffs can add up quickly, outweighing the intended benefit, said Richard Cardillo, principal for the Hackett Group, a consulting firm. A layoff takes time to execute and typically involves some lump-sum severance payment to terminated workers. And if the company has to rehire staff a few months later as demand ramps up, those recruiting and training expenses add to the cost of the layoff." [WSJ] Littler and ComplianceHR Launch Employee Screening Solution as Workplaces Reopen. "Keeping track of the recommendations and requirements for employee screening, which often vary by state, county and city, has been a complicated and time-consuming process for employers," Devjani Mishra, shareholder at Littler and a leader of the firm's COVID-19 Task Force, said in a statement. "ComplianceHR SmartScreen takes this burden off the employer by providing location-specific screening questionnaires in a scalable and consistent manner that maintains employee privacy." [Littler Mendelson]

Gig economy

Gig Workers Are Here to Stay. It's Time to Give Them Benefits. "This crisis is a chance to update our benefit and safety net systems for how people actually work (and sometimes don't work) right now—we shouldn't let it pass us by." [Harvard Business Review]

Gig Economy Companies May Soon Get Benefit Of Federal Misclassification Rule. "The formal regulatory notice released yesterday is so short and sterile that the average gig economy business could be forgiven for ignoring it: "The Department of Labor is proposing a regulation for determining independent contractor status under the Fair Labor Standards Act." But the implications are immense." [Fisher Phillips]

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