Updated on Aug. 10; Correction appended

Welcome to Labor of Law. The EEOC's getting closer to having just two members—what are the implications? Plus: how are general counsel responding to the #MeToo movement and public hits to company reputations? Scroll down for who got the work in some of the newest cases.

➤➤ 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 protected] and on Twitter @erinmulvaney. Thanks for reading.

EEOC's Chai Feldblum Responds to Critics

“If one believes there is only a 'win-lose' battle, then everyone must be painted as a radical advocate of one side or another. But that is not a constructive way forward. What we need instead is to acknowledge the full and complex reality of those who are different from us and then find the generosity of spirit to reach across divides and come together in thoughtful and respectful dialogue. That is what our country needs and deserves.”

That's EEOC Commissioner Chai Feldblum, writing in a post at Medium that caught our eye. Her piece was titled “What I Really Believe About Religious Liberty and LGBT Rights.” Feldblum was first nominated and confirmed to the commission in 2009.

“Beginning in 2009, various groups have mischaracterized my views in an effort to paint me as a radical opponent of religious liberty. Indeed, some have quoted me as saying 'Gays win; Christians lose.' I have never said such a thing, nor would I,” Feldblum wrote in her post.

Feldblum's blog isn't out of the blue—her re-nomination by President Trump in December drew criticism from religious groups and conservatives. And now there's a stalemate.

The U.S. Senate has not confirmed the nominations of Feldblum and Republican picks Janet Dhillon and Daniel Gade to the board. Dhillon, former general counsel to New Jersey-based Burlington Stores Inc., is the Trump administration's pick for EEOC chair. The commission's other members are Chairwoman Victoria Lipnic and Charlotte Burrows.

Feldblum's term formally expired on July 1. But because she's a sitting commissioner, and she's been renominated, she can serve until the Senate goes out of session. That usually happens in December—but in recent years, the Senate's been using pro forma sessions regularly, a check on a president making a recess appointment. That means Feldblum would vacate her seat in January if she is not confirmed. (An earlier version of this post said Feldblum would leave the agency at the end of August.)

Feldblum declined an interview request.

If the agency shrinks to two commissioners, the day-to-day work will not come to a halt. And the reality is, the commission's current makeup has prevented much comprehensive policy from moving forward, anyway. Lipnic, as the sole Republican and chair, has the power to bring issues to a vote. With two sitting Democrats—Feldblum and Burrows—she would face potential opposition to any sweeping policy changes.

In the case of a two-member commission, there's a “delegation of authority”—essentially allowing the two remaining members to take certain action that's normally reserved for the full five-member commission. This delegation occurred most recently in 2009.

Religious liberty and the scope of LGBT protections go to the heart of several big disputes in federal appeals court and the U.S. Supreme Court now. The Obama-era EEOC advanced broad LGBT rights in court, arguing that Title VII of the Civil Rights Act includes protections for LGBT workers.

The agency successfully argued in the U.S. Court of Appeals for the Sixth Circuit for a transgender funeral home worker, and now the company, represented by Alliance Defending Freedom, is asking the Supreme Court to take up the question.

The Justice Department's solicitor general would represent the agency in the high court, but the Jeff Session-led DOJ has taken positions against the EEOC in other cases—and also rescinded guidance that offered broad protections for LGBT rights.

➤➤ Meanwhile, the NLRB could soon also face a vacancy fight in the U.S. Senate. Democratic appointee Mark Pearce's term expires on Aug. 27. Management groups told Bloomberg Law they will fight against any re-nomination of Pearce. The former Obama-era chairman spearheaded many progressive initiatives when the board had a Democratic majority. “The management community is uniform that Mr. Pearce should not be renominated,” Littler Mendelson shareholder Michael Lotito told Bloomberg.

Unlike the EEOC, the NLRB would have four members if Pearce's spot were left vacant. That would allow the Republican 3-1 majority to vote and make decisions. Yet, there is a tradition to hold off on any major precedent-setting votes until there's a five-member board.

 

How GCs Are Responding to Reputation Hits 

Companies have taken hits to their reputations in recent months. Social media has amplified the latest corporate scandal du jour, putting ever more pressure on general counsel and employment lawyers. My colleague MP McQueen has a new piece up at Corporate Counsel that's worth a read: Worried About a Harvey, Travis, or Roseanne at Your Company? Here's What GCs Can Do. McQueen writes: “Papa John's Pizza founder John Schnatter, comic Roseanne Barr, movie mogul Harvey Weinstein, chef Mario Batali, and before that, Uber's Travis Kalanick: the 'hits' (to reputations) just keep on coming.”

One avenue more companies are taking more than ever: a morality clause. This can be useful particularly for brands built around a prominent figurehead. Although morals clauses in employment agreements with Hollywood entertainers have existed since at least the 1920s, they have renewed importance in the #MeToo era. The clauses spell out what kinds of events or behavior would trigger the termination of the contract with the talent, executive or endorsement personality.

Greenberg Glusker's Schuyler Moore, a partner in Los Angeles who practices entertainment and corporate law, told Corporate Counsel: “Particularly when you are building a brand around a personality, you have got to build a morality clause into each contract. This gets into the issue of public opprobrium and perception in the public eye.”

Morality clauses should also be considered in agreements with start-up founders, said Michael Marra, co-regional managing partner at management-side labor and employment firm Fisher Phillips in New York.

Marra, a former associate general counsel at a public advertising company, noted, “If someone is about to invest $100 million dollars to help a company to grow, that is really the place to think about morals clauses, especially since the reputation of a key person is so closely associated with brand identity and success.”

➤➤ Wall Street recently adopted so-called “Weinstein clauses.” These clauses relate to merger agreements requiring companies to vouch for their executives' prior behavior and requirement to pay a break-up fee if the deals have to be scuttled. The Washington Post points out a challenge to the idea.

Debra Katz, a Washington-based lawyer who represents plaintiffs, told the Post the clauses “are a good idea because it puts a sharp focus on the issue, but I'm not sure it's going to change behavior.” Katz also told the Post: “A cultural shift takes a while—it takes strong direction from management, a clear and urgent directive and really holding people accountable and putting that type of requirement at every level. That's not a short-term proposition.”

Who Got the Work

>> Linda Correia of Washington's Correia & Puth represents a Walmart employee who's suing the company for alleged sexual harassment. Walmart's lawyers at Littler Mendelson this week moved the suit from D.C. Superior Court to Washington's federal district court. Litter shareholder Kevin Kraham and associate Eunju Park,both in the firm's Washington office, represent Walmart. Read the complaint here.

>> Stanley Graham of Nashville's Waller Lansden Dortch & Davis represented Dollar General in an EEOC case at the U.S. Court of Appeals for the Sixth Circuit. The court this week upheld a ruling that said Dollar General discriminated against a diabetic employee by refusing to allow her to keep orange juice at her cash register. Barbara Sloan advocated for the EEOC, and Maha Ayesh of Jennifer Morton Law PLLC represented the employee.

>> A California appeals court panel said an abitrator and retired appellate judge who dismissed a former JPMorgan Chase Bank teller's race bias claims failed to disclose that she was presiding over other cases involving companies represented by the bank's law firm Seyfarth Shaw. Twila White and Imran Rahman of the Law Office of Twila S. White represented the plaintiff. Seyfarth's Jeffrey Wortman, Candace Bertoldi and Timothy Fisher represented the company. Reuters has more and read the opinion here.

>> A Missouri judge ruled that a former Armstrong Teasdale equity partner couldn't claim to be an employee under federal anti-discrimination law in the attorneys age bias claim challenging the firm's mandatory retirement age. Gregory Rich of Dobson, Goldberg, Berns & Rich represented Joseph Von Kaenel in the age bias litigation. Von Kaenel is now of counsel at Evans & Dixon in St. Louis. Neal Perryman of Lewis Rice represented the firm.

 

 

Around the Water Cooler

A media company is suing a former reporter who's allegedly refused to relinquish his Twitter handle. The complaint in West Virginia federal district court—filed by the firm Williams Mullen for client BH Media Group Inc.—accuses the reporter of violating an employee handbook by not returning access to the Twitter account on leaving the company. [Washington Post]

Some other stories that caught my eye:

>> New York City is capping Uber and Lyft vehicles and imposing a minimum wage for drivers. [CNBC]

>> The NLRB is moving to reconsider a ruling that said employees can use work email to discuss union-related activity. [The National Law Journal]

>> Gig companies' lobbying machine in California is at work trying to blunt the effects of a state Supreme Court ruling that could upend the business model of the on-demand companies. [The Recorder]

>> A Massachusetts bill would require employers to pay up when enforcing non competes. Lawyers tracking the issue, however, say there is a loophole. [The Washington Post]

>> Nearly 60 percent of companies with more than $1 billion in revenue have at least one pilot program underway using robotics. [The New York Times]

>>Public sector unions are taking a hit after the Supreme Court ruling that gutted their right to collect certain fees from non-members. [Wall Street Journal]

Correction: An earlier version of this post misstated when EEOC commissioner Chai Feldblum, whose term expired July 1, would be expected to vacate her seat. That would occur, absent confirmation, in January at the start of the new Congress, not the end of August.