Welcome to Labor of Law. New gender-bias claims springing from the Walmart v. Dukes ruling are unfolding in Florida federal district court. Plus: Chai Feldblum, the former Obama-era EEOC member, is joining Morgan Lewis. Scroll down for Who Got the Work and notable moves and headlines that caught my eye. Thanks for reading!
I’m Erin Mulvaney in Washington, covering labor and employment from the Swamp to Silicon Valley. Follow this weekly newsletter. If you have a story idea, feedback or just want to say hi, reach me at email@example.com and @erinmulvaney.
Walmart Hit With New Gender Bias Claims
The U.S. Supreme Court decision Walmart Stores v Dukes was a blow to workers' advocates, restricting the formation of certain class actions. But complaints against the company persist, and there's a new crop of cases in Florida federal court that spring from Dukes and allege gender discrimination.
One small labor and employment plaintiffs firm in Florida—Scott Wagner & Associates—is leading the charge. “We are the women behind the women of Walmart,” said Cathleen Scott, managing partner of the firm, which employs a team of (mostly) female lawyers. The firm has teamed with the national plaintiffs firm Cohen Milstein Sellers & Toll in the action.
“We are attacking the culture,” Scott said in an interview. “The culture is to pay women less. Certain policies compound the problem. These women’s stories are so strikingly similar you would think they would know each other.”
In a statement, Walmart said: “The allegations from these plaintiffs are not representative of the positive experiences that millions of women have had working at Walmart. We’ve said all along that if someone believes they have been treated unfairly, they deserve to have their timely, individual claims heard in court. We plan to defend the company against these claims.”
Many of the plaintiffs in the newly filed cases were members of the class in the Dukes case. The complaints allege Walmart has discriminated against female employees, paying them less, withholding pay increases and bypassing them for managerial promotions.
Scott recently told my colleague Zach Schlein that she and her co-counsel are ”prepared to do what it takes” to secure a legal victory for their clients. “My firm’s a civil rights firm, so we have a lot of energy and passion for these types of cases,” Scott said. “Our clients have waited almost a decade to have their cases heard. They’re looking forward to the opportunity to finally get some justice.”
The Supreme Court decision in Dukes reverberated widely, setting a new standard for determining when and how class actions can form. The justices in their 5-4 ruling didn't reach the merits of the Walmart employees' claims. Still, Justice Ruth Bader Ginsburg wrote: "The plaintiffs’ evidence, including class members’ tales of their own experiences, suggests that gender bias suffused Wal-Mart’s company culture."
We'll keep an eye on the cases and report back.
Who Got the Work
>>"A Wisconsin town did not violate a labor union’s free speech rights by forcing it to take down a giant inflatable rat it put up on a public right-of-way to protest a construction contractor’s wages, a federal appeals court has ruled," Reuters reports. Read the ruling from the U.S. Court of Appeals for the Seventh Circuit here. Nathan Eisenberg of the Previant Law Firm in Milwaukee argued for Construction and General Laborers' Union No. 330 and David Hanus of Milwaukee's Hinshaw & Culbertson represented the Town of Grand Chute, Wisconsin.
>> Littler Mendelson represents Attending Homecare Services LLC in a dispute in the U.S. Court of Appeals for the Second Circuit that involves forced arbitration. "A court decision that could have big implications for how unionized businesses and their workers resolve legal disputes is likely going to come down to competing definitions of the word 'may,' according to a Bloomberg Law report. The challenger is represented by a team from the Law Offices of Steven Wittlels and Daniel Hymowitz of Hymowitz Law Group.
>> The national restaurant chain IHOP has reached a $700,000 settlement with the U.S. Equal Employment Opportunity Commission in a sexual harassment and retaliation dispute in Las Vegas. A consent decree filed on Feb. 19 requires the company to eliminate a 72-hour policy for reporting harassment, hire an outside monitor and create review standards. The company was represented by James Tucker and Richard Dreitzer of Wilson Elser Moskowitz Edelman & Dicker. EEOC lawyer Anna Park signed the agreement for the agency.
Notable Moves & Announcements
>> Chai Feldblum, a former Obama-era EEOC commissioner and civil rights advocate, will join the management-side law firm Morgan, Lewis & Bockius. Feldblum and her former chief of staff Sharon Masling will focus on the firm’s efforts to conduct cultural assessments of workplaces to prevent sexual harassment.
Philadelphia-based Morgan Lewis, one of the country’s largest management-side law firms, has played a leading role in conducting internal probes at companies, and Feldblum and Masling will contribute to that work. Feldblum said a plaintiffs firm wasn’t a great fit for the type of preventive assessments and counseling she wants to focus on.
“For companies and organizations that want to seize this moment to have the best workplaces possible, we will be there to help,” Feldblum said. She and Masling, both joining as Morgan Lewis partners, start Feb. 25 Law.com
In other notable moves...
Proskauer Rose has hired Kate Gold as a partner in the labor and employment department in Los Angeles. Gold previously was partner at Drinker, Biddle & Reath. The firm also hired Alexandra Stocki, a labor and employment partner in Paris, France. She previously was a partner at Bird & Bird.
Jackson Lewis hired Peter Wendzel in the Orlando office as a principal. He joins the firm from Wyndham Destinations, where he served as in-house counsel for 15 years.
Around the Water Cooler
• Fitness devices raise privacy concerns:"Devices worn on employees’ bodies are an increasingly valuable source of workforce health intelligence for employers and insurance companies. … But the volume of highly sensitive health data scooped up from individual employees is exploding, too, raising privacy concerns and adding a new dimension to the relationship of workers and their employers."
The Washington Post
• Trump nondisclosures challenged: "A former campaign worker for President Donald Trump filed a lawsuit on Wednesday seeking to invalidate all of the non-disclosure and non-disparagement agreements that campaign workers were required to sign before joining the president’s 2016 election campaign." Reuters
• Corporate executives are installing gunfire-detection systemsin U.S. offices and factories to protect against workplace shootings. The uptick in gunshot sensors follows a wave of workplace shootings in the past year. WSJ
• A Boston Symphony Orchestra flutist settled her equal pay lawsuit that claimed she was paid less than her male counterparts. The case was closely watched as one of the first lawsuits under a new Massachusetts pay law. Fisher Phillips
• A California state appeals court ruling has ushered in sweeping changes for scheduling policies. "No policy is a sure thing, and even minor changes could affect the way a court may view it—meaning that some employers may wish to abandon such practices altogether," a Fisher Phillips team writes. The Recorder
• Federal lawmakers are floating measures that would override the 2009 U.S. Supreme Court decision that made it harder for workers to prove bias under the Age Discrimination in Employment Act. Law360