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Covid-19 L&E Litigation Analysis

Ogletree Deakins' in-house tracking of coronavirus-related employment litigation shows 60 percent of cases falls into one of three categories: wrongful discharge, leave and discrimination.

Twenty-five percent are classified as "discharge" claims, including whistleblower and retaliation issues tied to claims of ineffective protection of employees and alleged misuse of CARES Act funds, Olgetree shareholder Amie Willis (at right) in Atlanta writes at the Daily Report.

Willis notes: "Nineteen percent of claims are related to leave violations of the Family and Medical Leave Act (FMLA), Families First Coronavirus Response Act (FFCRA) and the CARES Act. Thirteen percent of COVID-19 claims can be categorized as discrimination, which include accommodations issues and are largely comprised of disability claims under the Americans with Disabilities Act."

>> OSHA has received more than 2,100 whistleblower complaints, "including those for inadequate personal protective equipment, exposure to illness by co-workers and customers, and failure to enforce safety rules," Willis writes.

>> "The EEOC has published guidance making clear that employers should avoid blanket policies requiring 'high risk' employees (as defined by the Center for Disease Control and Prevention guidelines), such as older or pregnant employees, to continue to telework while others return on-site," Willis writes.

>> Among the considerations for management: "Implement and publicize reopening requirements, including masks, social distancing signs and floor markers and cleaning processes," Willis writes. Plus: "Ensure relevant policies are updated, including policies related to social media, non-harassment, anti-discrimination, anti-retaliation, FMLA, emergency leaves under the FFCRA, and any state or local laws." And: "Approach requests for leave and remote considering whether they are requests for accommodations and initiate the ADA interactive process as appropriate, documenting all of your communications and efforts."

What Litigators Need to Know About the ADA

Happy 30th anniversary to the Americans with Disabilities Act! My colleague Ross Todd caught up with Chai Feldbum (at left), a Morgan, Lewis & Bockius partner and Obama-era member of the EEOC.

Feldblum, a director of workplace culture consulting at the firm, was, in Ross's words, "the lead lawyer in the room of strategists, lobbyists, and legislators drafting the ADA 30-plus years ago. A few highlights follow, and read the full interview here at AmLaw Litigation Daily:

>> "My litigation colleagues at Morgan Lewis, most of the time what they're doing is counseling people how not to get into litigation. But obviously sometimes there will be litigation, and I think the most important thing to know is that the ADA was the product of many compromises and it is crafted in a way that is designed to give defenses to employers and businesses when those defenses are appropriate," Feldblum says. "Litigators should be aware of both the requirements and the defenses in the law."

>> "I think that while Congress could never have imagined specifically COVID-19, it's interesting that the law was developed in the context of the AIDS and HIV epidemic," Feldblum says. "That portion of the ADA that is now being used by the EEOC to make it very clear that, yes, you as an employer can require employees to take the COVID-19 test, came about because Congress was thinking about AIDS and HIV. I think this shows that the law has relevance both at a macro level protecting people with all disabilities and at a micro level in terms of particular disabilities that can cause issues and concerns."

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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

Who Got the Work

>> Lawyers from Gibson, Dunn & Crutcher—including Theodore Boutrous (above), Theane Evangelis, Michael Dore, Lauren Blas and Marissa Moshell—advocated for actress Ashley Judd in a sexual harassment case against producer Harvey Weinstein. The Ninth Circuit yesterday revived Judd's claims; Boutrous argued the case. Phyllis Kupferstein of Kupferstein Manuel LLP argued for Weinstein. Read more at the Los Angeles Times.

>> "Former Bridgewater Associates co-Chief Executive Eileen Murray filed suit against her ex-employer on Friday, alleging Bridgewater is withholding $20 million to $100 million in deferred compensation because she has disclosed a gender-discrimination dispute she is involved in with the firm," The Wall Street Journal reports. Read the complaint, filed in U.S. District Court for the District of Connecticut by the law firms O'Rourke & Associates and Cummings & Lockwood.

>> Oracle Corp. has retained Orrick, Herrington & Sutcliffe and Morrison & Foerster to defend the company and its board in a shareholder derivative lawsuit accusing Oracle of not following through with its diversity policies, my colleague Alaina Lancaster reports. Bottini & Bottini in La Jolla and Renne Public Law Group in San Francisco allege the software company's board has deceived investors with false assertions about diversity.

>> Lawyers from Proskauer Rose advocated for Wells Fargo & Co. in an ERISA dispute in the U.S. Court of Appeals for the Eighth Circuit. The panel upheld the dismissal of the complaint. The law firm DiCello Levitt Gutzler was on the briefs for the employees.

>> Faegre Drinker Biddle & Reath represented Target Corp. in an ERISA dispute in the Eighth Circuit. The panel ruled for the company. Stull, Stull & Brody advocated for participants in the Target plan.

>> Barnes & Thornburg of counsel Aaron Lindstrom, a former Michigan solicitor general, advocated for food processing plant AdvancePierre Foods Inc. in an NLRB dispute in the D.C. Circuit. The panel ruled for the agency, upholding an order that the company "read aloud" its violations of unfair labor practices. NLRB attorney Michael Hickson argued for the board.

>> Jackson Lewis principal Joseph Schuler in Washington argued for Parsons Corporation in an employment discrimination dispute in the D.C. Circuit. On remand, the trial court must resolve whether the parties had agreed to arbitrate, the panel concluded. The Employment Law Group advocated for the employee.

Around the Water Cooler…

Meet the lawyers

She Defends Companies Accused of Discrimination. She's Also Helping Them Diversify. A corporate attorney for more than 35 years at the Morgan Lewis firm, [Grace] Speights has made a career of defending companies accused of treating employees unfairly based on their race, gender or age. The 63-year-old litigator is also a trailblazer in her own profession, the first African American woman to be named partner at the firm. Companies are now looking to her for guidance at a time when scrutiny of workplace culture in corporate America is as intense as it has ever been. [The Washington Post] In 2018, The American Lawyer named Speights (above) attorney of the year.

Uber's 'Elite' Legal Team Plays Long Game in California Courts. "When he's not taking on President Donald Trump for former national security adviser John Bolton and the president's disaffected niece Mary Trump, First Amendment lawyer Ted Boutrous leads the go-to team for the gig economy's biggest names in their existential battle over workers' rights." [Bloomberg Law]

Workplace culture

'A Disgrace': Former Employee Blasts Fed's Workplace Culture. "A former Federal Reserve employee laid out a scathing critique of the lack of diversity and inclusion at the central bank and the economics profession more broadly—and drew a sympathetic reaction from Fed Chair Jerome Powell." [Politico]

Courts and cases

Uber Employees May Receive Unemployment Benefits, Pa. Supreme Court Rules. Out-of-work persons who began driving for the ride share giant Uber may receive unemployment benefits, Pennsylvania's high court has ruled in a decision that some attorneys say could have a ripple effect for the broader gig economy, my colleague Max Mitchell reports. On July 24, the Pennsylvania Supreme Court ruled 5-2 in Lowman v. Unemployment Compensation Review Board. [Law.com]

Uber and Lyft Drivers Win Ruling on Unemployment Benefits. "Drivers for Uber and Lyft won a key victory in their yearslong campaign to secure traditional unemployment insurance on Tuesday, when a federal judge in New York ruled that the state must promptly begin paying them benefits." [NYT]

Arnold & Porter to Pay Civil Penalty for Discrimination in Doc Review Project. Arnold & Porter Kaye Scholer and Washington, D.C., legal staffing company Law Resources will pay a $56,500 civil penalty to resolve claims that they engaged in hiring discrimination based on citizenship status, the U.S. Department of Justice said. [Law.com] Read the DOJ announcement.

Covid-19 Headline Roundup

How The Pandemic Could Force A Generation Of Mothers Out Of The Workforce. "What comes next could have disproportionate—and long-lasting—effects on the careers of countless women across the country. Studies have shown that women already shoulder much of the burden of caring for and educating their children at home; now, they're also more likely than men to have lost their jobs thanks to the pandemic. And the collapse of the child care and public education infrastructure that so many parents rely on will only magnify these problems, even pushing some women out of the labor force entirely." [FiveThirtyEight]

How Remote Work Will Create Economic Winners and Losers. "Many workers could see an increase in disposable income and flexibility, but others could be pushed into contracting arrangements that lower their wages and make their livelihoods more precarious. Even highly skilled workers may find it harder to band together to improve their pay and working conditions." [NYT]

Companies Start to Think Remote Work Isn't So Great After All. "Now, as the work-from-home experiment stretches on, some cracks are starting to emerge. Projects take longer. Training is tougher. Hiring and integrating new employees, more complicated. Some employers say their workers appear less connected and bosses fear that younger professionals aren't developing at the same rate as they would in offices, sitting next to colleagues and absorbing how they do their jobs." [WSJ]

COVID-19 Litigation: Identifying Types and Mitigation Strategies for Employers. Ogletree Deakins' in-house tracking of coronavirus-related employment litigation shows 60 percent of cases falls into one of three categories: wrongful discharge, leave and discrimination. Twenty-five percent can be classified as discharge claims, which include whistleblower and retaliation issues stemming from employers' failures to protect employees, follow guidance, and misuse of Coronavirus Aid, Relief, and Economic Security (CARES) Act funds; and employees' refusals to return to work," Olgetree shareholder Amie Willis (at right) in Atlanta writes. [Daily Report]

They Warned OSHA They Were in 'Imminent Danger' at the Meat Plant. Now They're Suing the Agency. "The lawsuit, filed in a Pennsylvania federal court, accuses the government of failing to protect essential workers from dangerous conditions that could expose them to the coronavirus. It relies on a rarely used provision of the Occupational Safety and Health Act that allows workers to sue the secretary of labor for 'arbitrarily or capriciously' failing to counteract imminent dangers." [ProPublica]

CEO-to-Worker Pay Gap to Surge with Coronavirus, AFL-CIO Says. "Top executives at U.S. public companies made an average of $14.8 million last year, 264 times their employees' earnings, a gap that will widen dramatically this year because of the pandemic, the AFL-CIO said Wednesday." [Politico]

California Workplace Safety Rules Are Likely to Change Due to Coronavirus Fears. "With many of California's workplaces facing significant changes fueled by the COVID-19 pandemic, state lawmakers are considering whether labor laws need to evolve too. Legislators have proposed expanding workers' compensation eligibility so that more employees will be covered if they are diagnosed with COVID-19, increasing the number of sick days for food service workers and requiring employers to pay a portion of utility and internet bills for teleworkers." [Los Angeles Times]

Why the U.S. Chamber of Commerce Is Suing the Trump Administration. "Over the past few weeks, the Trump administration has decided to close the door to engineers, executives, information technology experts, doctors, nurses and others who come to the United States on work visas," Thomas Donohue, chief executive officer of the U.S. Chamber of Commerce, writes. [NYT]

The Moves Files

Norton Rose Fulbright said Ryan McCoy has rejoined the firm's Los Angeles office as an employment and labor partner. McCoy earlier was a part of the firm's dispute resolution and litigation practice from 2005 to 2013. For the last seven years, McCoy worked at Alston & Bird and Baute Crochetiere Hartley & Velkei.

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