Welcome to Labor of Law. Will the Seventh Circuit's big age-bias ruling—limiting claims to employees, not applicants—help companies fighting discrimination allegations? Plus: Linda Dreeben, the NLRB's longtime appellate leader, is stepping down next month, the Texas Supreme Court won't force Glassdoor to reveal the identities of anonymous online users, and Lyft is suing to block New York's new minimum-wage law for drivers. Scroll down for Who Got the Work, notable moves and more.
I’m Erin Mulvaney in Washington, covering labor and employment from the Swamp to Silicon Valley. Follow this weekly newsletter for the latest analysis and happenings. If you have a story idea, feedback or just want to say hi, I’m at firstname.lastname@example.org on Twitter @erinmulvaney.
Older Job Applicants Face New Court Setback
A central question in the fight against age discrimination is whether job seekers, not just employees, should be protected under federal law. The Age Discrimination in Employment Act protects workers over 40 years old from bias, but unlike Title VII of the Civil Rights Act, there is no explicit language giving the right to sue an employer for both employees and applicants. Advocates in recent years have pushed for broader protections in the courts. Hiring and firing were both in focus.
The U.S. Court of Appeals for the Seventh Circuit's ruling in Kleber v. Carefusion was a setback for older job seekers, and now we're watching whether the AARP team takes the case to the U.S. Supreme Court. The high court's looked at disparate impact liability under the ADEA for employees, but the justices turned down an applicant-focused case in 2017. "It remains to be seen whether and how other federal courts and the U.S. Supreme Court will address this issue going forward," a team from Skadden, Arps, Slate, Meagher & Flom said in an advisory this week. Stay tuned.
>> Meanwhile, management-side lawyers who are defending companies in other age-bias cases are expected to showcase the ruling as potentially beneficial to their clients. Lawyers from Gibson, Dunn & Crutcher; Winston & Strawn; and Davis Wright Tremaine—representing Amazon Inc., Cox Media Group; and T-Mobile USA, respectively—notified a San Francisco court about the Seventh Circuit ruling.
The companies are fighting age bias claims that are anchored in how the businesses use Facebook’s ad platform to target younger users for job opportunities. The complaint was filed by Outten & Golden and the Communication Workers of America. Facebook is not a defendant.
>> Laura Friedel, a partner at Levenfeld Pearlstein, told me the Seventh Circuit’s ruling gives employers more “peace of mind” about the lawfulness of experience caps and college hiring. “Employers have an aging workforce and there is a natural inclination to want younger workers,” Friedel said. “But clients are working on this. We need to look at skills and recruiting a wider array of applicants.”
We won't know for a while whether any circuit split emerges. There are applicant-focused age bias case pending in the courts, but we're not close to any appellate action on that front. Outten & Golden is involved in a case against PwC in San Francisco that alleges bias against older job seekers. The presiding U.S. district judge has ruled that applicants—not just employees—can pursue disparate impact claims under the Age Discrimination in Employment Act.
“The Seventh Circuit decision uses tortured reasoning and semantic somersaults to try to reach a result that is contrary to Congress’s intent and common sense,” Outten & Golden partner Jahan Sagafi told me.
Who Got the Work
➤➤ "Lyft and Juno have filed suit to block regulations set to begin Friday that would make New York the first U.S. city with a minimum wage for ride-hail drivers," according to Crain's New York Business. A team from Arnold & Porter, including partner Sara Shudofsky in New York, represent Lyft. Lawyers from Kaplan Rice LLPand Skadden, Arps, Slate, Meagher & Flom, including partner George Zimmermanin New York, represent Juno. Read the Lyft complaint here, and Juno's complaint here. The Wall Street Journal has more on the cases.
➤➤ "Wynn Resorts Ltd. executives turned a blind eye as Steve Wynn over more than a decade was accused of sexually assaulting or harassing cocktail servers, salon workers and flight attendants employed by his casino empire, according to allegations contained in a regulator’s report that the company agreed largely matches its own findings," according to a report in The Wall Street Journal. Orrick, Herrington & Sutcliffe white-collar partner James Kramer in San Francisco represented former Wynn Resorts general counsel Kim Sinatra. Kramer told the Journal: “Ms. Sinatra denies the allegations against her in the complaint. She maintains she conducted herself appropriately at all times."
➤➤ Three female lawyers who worked at Morrison & Foerster are joining a lawsuit accusing the firm of gender discrimination.The three new plaintiffs—proceeding anonymously as Jane Doe 4, Jane Doe 5 and Jane Doe 6 in an amended complaint filed Jan. 25 by lawyers at Sanford Heisler Sharp. “Everything about what’s in this complaint goes against the facts of who we are, our values and what we do,” said Morrison & Foerster chair Larren Nashelsky, saying the firm plans to fight the lawsuit. Attorneys from Gibson, Dunn & Crutcher have appeared on the docket for the firm in the case.
➤➤ The Texas Supreme Court refused to force Glassdoor to reveal the identities of certain users who criticized their company. Peter Kennedy, a shareholder in Austin, Texas, at Graves Dougherty Hearon & Moody, represented Glassdoor. W. Alan Wright, a Dallas-based partner at Kilpatrick Townsend & Stockton, represented the Dallas clothing retailer Andra Group. The Austin-American Statesman reports here on the decision.
➤➤ The firing of three black administrators at the Georgia Vocational Rehabilitation Agency ended in a $1.5 million race discrimination settlement. Edward Buckley of Atlanta’s Buckley Beal represented the former employees. Buckley said an email showing their boss relied on a script provided by his wife, the associate general counsel at a large beverage wholesaler, played a role in securing the settlement. My colleague R. Robin McDonald has more on the case.
Notable Moves & Announcements
>> Silicon Valley employment lawyer Fred Alvarez is leaving Jones Day for Coblentz Patch Duffy & Bass.
>> Daniel Johns, a longtime partner in Ballard Spahr's labor and employment group, has left for Cozen O’Connor in Philadelphia.
>> Holland & Knight has added another Big Law partner to its Philadelphia office, bringing on labor and employment and ERISA attorney William Delany from Morgan, Lewis & Bockius.
>> Littler Mendelson hired David Radelet, Christopher Johlie, Jeff Nowak and Staci Ketay Rotman as shareholders in the firm’s Chicago office. The lawyers previously were partners at Franczek Radelet P.C., where Radelet was a founding partner. In New York, Littler hired Margaret Watson, who joined from McElroy, Deutsch, Mulvaney & Carpenter.
>> Immigration lawyer Michael Durham joined Barnes & Thornburg’s South Bend, Indiana, office as a partner in the firm’s labor and employment department. He previously worked at Bose McKinney & Evans.
Around the Water Cooler
• "The federal labor board, whose push to put the Trump stamp on workplace policy has been slowed by conflict-of-interest questions, won’t wait to finish updating its ethics rules before two members decide whether to participate in a controversial case involving McDonald’s." National Labor Relations Board Chairman John Ring (above) said: “I think we all generally have a sense of what our rules are." Bloomberg Law
• "When the conservatives saw Oliveira, they got greedy: Here was another opportunity to expand the FAA and further squeeze workers out of the courtroom. But when push came to shove, no plausible reading of the law could support it," Sen. Sheldon Whitehouse, D-Rhode Island, writes. Slate
• Linda Dreeben, the NLRB’s top appellate lawyer, will step down from the agency after a 40 plus year career. National Law Journal
• "Millions of American workers sign away legal rights without knowing what they’re in for: Arbitration Hell." Bloomberg
• Federal contractors are fighting for back pay after the shutdown. Reuters
• New Jersey lawsuits are challenging workplace confidentiality provisions. WSJ
• Lawyers for Google want the National Labor Relations Board to limit the ability of workers to organize using electronic communication. Bloomberg
• "Workplace enforcement actions ballooned in 2018, and employers across the United States experienced a significant increase in worksite audits from the Departments of Labor and Homeland Security," writes Samuel Newbold, chair of the immigration law group at Chiesa Shahinian & Giantomasi.
• The Justice Department doesn't want the U.S. Supreme Court to expand last term's "Janus" union-fee ruling to other workplace disputes. NLJ