Welcome to Labor of Law. We’ll highlight the latest after McDonald’s Corporation faced a setback in a long-running labor case that tests the joint employer relationship and Uber Technologies faces a new gender bias lawsuit. Scroll down for new moves at labor firms and to see who got the work in major discrimination lawsuits and settlements.
➤➤ I’m Erin Mulvaney in Washington, D.C., 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 email@example.com and on Twitter @erinmulvaney. Thanks for reading.
McDonald’s Loses as Judge Nixes Settlement
➤➤ McDonald’s is mired in a dispute with workers that’s seen as a test case over how to define the employment relationship, and that could upend the franchise model. The company faced a setback this week at the National Labor Relations Board, which has been viewed as more employer friendly.
NLRB Administrative Law Judge Lauren Esposito rejected a settlement agreement between NLRB general counsel Peter Robb and the company, arguing “a reasonable resolution based on the nature and scope of the violations alleged and the settlements’ limited remedial impact.” Robb, a Trump appointee, attempted to settle the long-running dispute, but Esposito said there were not enough concessions offered for the employees.
➤➤Some background: The dispute was sparked by hundreds of claims that McDonald’s franchises disciplined workers for attempting to unionize and ask for higher wages. At the core of the case is whether McDonald’s should be on the hook for labor-law violations committed by franchisees.
In 2015, the Obama NLRB issued a contentious decision that expanded the scope of the employment relationship, which put corporations on the hook for their franchisees. The agency charged McDonald’s with hundreds of labor violations at its franchises following that decision.
The Republican majority attempted to overturn that precedent late last year, but an ethical flap led to a reversal, putting the case back to the 2015 decision. Robb’s settlement proposal, according to Esposito, included backpay for the workers, but generally avoided any obligation on McDonald’s.
➤➤National Employment Law Project staff attorney Ceilidh Gao said the judge’s decision, “emphasizes that this proposed settlement was a completely inadequate get-out-of-jail free card. This ruling is important to give fast food workers some real relief—working people making extremely low wages, who have been unlawfully harassed or fired. The facts as collected in the hearings show that McDonald’s directed and encouraged its franchises to take action against the protesting workers. This behavior should be easy for McDonald’s to remedy, and then not repeat in the future. And yet it persists in attempts to stymie the claims process. Some of McDonald’s obstructionist tactics are shocking—or as the decision states, simply extraordinary.”
Democratic senators previously told Robb he should allow the trial to move forward, particularly given the decision was overturned, and requested that “you swiftly resume and finish the trial and allow the (administrative law judge) to issue a decision in this critically important case.”
➤➤Jennifer Abruzzo, who was deputy general counsel at the National Labor Relations Board during the Obama administration, told The New York Times the judge, in the order detailing the company’s delay tactics, implied that McDonald’s had tried to hold out for the possibility that a Republican would win the presidency in 2016 and appoint a new general counsel.
“Without saying it, she was like, McDonald’s just delayed this long enough to have a change, so that they could push through this settlement agreement with a general counsel who was willing, able and wanted it,” Abruzzo told the Times.
Who Got The Work
➤➤A team from Kirkland & Ellis—including partners Paul Clement and Erin Murphy—are representing the U.S. Chamber of Commerce and other business advocates on a new amicus brief in the U.S. Court of Appeals for the Fifth Circuit in a dispute over the Obama-era Labor Department’s overtime rule. The case concerns a contempt order slapped on three plaintiffs firms that filed a suit seeking to enforce the new overtime regulations, which a Texas judge had enjoined.
The firms—including Cohen Milstein Sellers & Toll and Outten & Golden—are fighting the contempt order. Represented by Jenner & Block, they argue the injunction did not prohibit them from suing a private employer, and called the contempt order “profoundly troubling.”
The Chamber’s brief doesn’t take a side on the contempt issue. Rather, the business advocates contend the appeals court should not spend any time addressing the merits of the nationwide injunction that blocked the overtime rule from taking effect. The business groups said they “have a strong interest in ensuring that the parties are not permitted to attack the validity of the injunction or otherwise seek a merits ruling on the Overtime Rule in the course of these collateral proceedings.”
➤➤Estee Lauder Cos. reached a $1.1 million settlement with 200 new fathers who claimed the company’s parental leave policy treats new mothers differently by giving more paid time than men in the same positions. The settlement still needs to be approved by a judge in the U.S. District Court for the Eastern District of Pennsylvania. Jackson Lewis attorneys John Nolan, Philip Rosen and Francis Alvarezrepresented the company. The EEOC attorneys were Debra Lawrence, Maria Luisa Morocco and Thomas Retlage.
Notable Moves & Promotions
➤➤Lori Adamcheski joined Ogletree Deakins’ Detroit office as senior counsel. Adamcheski joins the firm from Blue Cross Blue Shield of Michigan, where she served for seven years as assistant general counsel in the Employee Relations Law group, as well as diversity inclusion and community service coordinator of the legal department.
➤➤Jackson Lewis hired David S. Mohl in the firm’s Atlanta office as a principal. He joins the firm from The Hershey Company, where he was associate general counsel and was responsible for the company’s global labor and employment, litigation and privacy functions.
➤➤Morgan Lewis & Bockius announced that Kenneth Polite, a former U.S. attorney in New Orleans, will join its global disputes and investigations team as a partner in its Philadelphia and New York offices. The Philadelphia Business Journal has the inside loop at how the firm scooped Polite. Read more here.
Around The Water Cooler
➤➤Uber faces a federal investigation over complaints of gender discrimination. The U.S. Equal Employment Opportunity Commission is one of several probes into the company, and follows an external investigation by former Attorney General Eric Holder, now with Covington & Burling, that looked into the company’s practices. [WSJ]
➤➤New Census research found that wives and their husbands don’t admit if the woman makes a higher salary, revealing workplace progress lags because of social attitudes. In opposite sex marriages in which women earned more, the women reported to surveyors they made 1.5 percent less, and their husbands earned 2.9 percent more than they actually did. [NYT]
➤➤The NFL’s new anthem policy raises questions about free speech in the workplace. Talking heads have claimed that, as “employees” of their teams, professional athletes have a right to free speech in the workplace and can’t be disciplined. But this argument exhibits a fundamental misunderstanding of the law, according to Alston & Bird partner Grant Alexander and associate Sean Crain. [Law.com]
➤➤Third-party workplace investigations are becoming more common in the #MeToo era as companies try to prevent or reckon with sexual harassment. “Everyone I know in this field is busy,” said Keith Rohman, president of the Association of Workplace Investigators. [Bloomberg Law]
That’s all for this week. Shoot me a note with story ideas, feedback or tips: firstname.lastname@example.org. Thanks for reading!