Welcome to Labor of Law. In-house and management lawyers open up about some of the nuances in play for discussions about the gender pay gap. An age discrimination battle is unfolding in the Ninth Circuit. Ethics accusations are flying in the McDonald’s joint-employer case at the NLRB. Scroll down for who got the work and notable moves, including a Big Law coup of a high-ranking Labor Department attorney.
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.
Nuance in Confronting the Gender Wage Gap
In-house and management-side lawyers recently opened up about some of the nuances that are evolving in the discussion over pay equity and gender disparities. I caught a panel at the Women Influence Power in Lawconference (ALM’s Corporate Counsel sponsored the event) and have some of the big takeaways and comments below. Pay equity, bottom line, is a compliance balancing act.
➤➤ The big picture: “The legal landscape has rapidly changed. It’s continued to evolve,” said Tammy Daub, of counsel at Paul Hastings and former senior Labor Department attorney, who moderated one of the conference panels. Recent data show that women on average make 80 cents on the dollar compared to men in comparable positions.
Daub, a former U.S. Labor Department attorney, pointed to a fast-moving regulatory environment where states and cities are creating a patchwork of laws aimed at equal pay. Meanwhile, companies face audits from the Office of Federal Contractor Compliance Programs, or OFCCP. And companies are considering what type of internal analyses they should conduct.
Pay analyses can show companies where gaps might exist, and shareholders ever more have pushed for such audits. Some companies voluntarily released their numbers. Read more here at Corporate Counsel for my take on how companies decide when to release and when to keep that info internal.
Here’s what some of the conference speakers said about pay analysis:
Panelists noted that pay analyses do not always show why certain employees are paid more or less than their counterparts.
Kirsten Hotchkiss, vice president for global employee relations at American Express Global Business Travel, said pay analyses should strive to consider certain factors that might reveal why one employee is earning more than another: education, experience and productivity. “Are there legitimate factors other than gender? We shouldn’t discount flexible work, ability to work from home. Those might impact total compensation a person receives.”
➤➤ One unresolved area in discussions about the pay gap: whether an employer can use prior salary history to justify paying male and female employees differently. Some cities and states have banned the practice, and the courts are divided.
A California school district, represented by the law firm Jones Day, wants the U.S. Supreme Court this term to take a case that confronts the issue head-on. The U.S. Court of Appeals for the Ninth Circuit ruled in favor of the employee, Aileen Rizo, who sued after she discovered men were paid as much as $10,000 more than she was in comparable positions.
The EEOC backed Rizo in the Ninth Circuit, saying the use of prior compensation institutionalized lower pay for women. Business groups recently filed friend-of-the-court briefs urging the justices to take up the case and not to ban the common hiring practice.
The in-house attorneys at the Women, Influence & Power in Law conference this month say there are better strategies to set compensation than focusing on prior pay.
Hotchkiss said, “That is not something that we should be inquiring about anymore. There are several places around the country where you cannot ask a candidate about what they are earning at the time. I know that’s only a few states, but, if you have employees in every state, you pick the most difficult state and comply.”
She added, “I don’t have a problem asking candidates for their salary expectations. It’s useful information in determining what to pay somebody.”
Kendall Mills, senior counsel at the real estate services company Jones Lang LaSalle, said it was a myth that men negotiate more often than women to get higher pay. She also said that it’s a better practice not to ask about or base compensation on previous salaries.
“Even asking what’s your expectation is dicey. It’s better to say, ‘This is what the pay is. Does that work?’ If they are looking to make more they will tell you. You don’t have to ask. There are nuanced ways to get where they are trying to go.”
Docket Watch: Alleged Age Bias In Hollywood
A federal appeals court should overturn a trial judge’s ruling that said a California law allowing actors to shield their ages on the popular film website IMBD.com is unconstitutional, the AARP says in an amicus brief. The California law, meant to target alleged age discrimination in Hollywood, would prohibit the website from displaying ages in the biographies of actors, producers and writers.
“Age bias against older writers has been going on for decades,” Barbara Jones and William Alvarado Rivera, attorneys for the AARP Foundation, wrote in the amicus brief. They continued, “Age discrimination is not limited to a single profession in the entertainment industry, but occurs throughout a variety of entertainment-related professions.”
More from the amicus brief: “Even where a role calls for an age range, an older actor may still qualify. Not all actors look their age. Specifying a specific birthdate limits their employment opportunities. In addition to actors, this is an issue of particular concern to a variety of entertainment professionals who work behind the camera and who continue to face age discrimination even though their age may be completely irrelevant to their position.”
Hueston Hennigan LLP represents IMBD.com in the U.S. Court of Appeals for the Ninth Circuit. California Attorney General Xavier Becerra is defending the statute.
Who Got the Work
>> A three-judge panel for the Seventh Circuit revived the retaliation lawsuit filed by a former employee of Stryker Sales Corporation. The medical equipment manufacturer was accused of firing the employee after she reported alleged sexual harassment. Plaintiff Kelley Donley was represented by Chicago-based attorney Kathleen Sedey of Case Law Firm. Seyfarth Shaw attorneys Tracy Billows and Ashley Kircher Laken represented the company. Read the ruling here.
>> Former Fox News host Bill O’Reilly won his bid to push a defamation suit to arbitration, according to The Hollywood Reporter. Fellow Fox anchor Laurie Dhue brought the case against O’Reilly. Dhue said her reputation was hurt after claims of O’Reilly’s sexual misconduct went public. A team from Balestriere Fariello, along with Chicago-based Carmen D. Caruso Law Firm, represent Dhue. Andrew Bourne and Marc Aaron Melzer of Hoguet Newman Regal & Kenney represent O’Reilly.
>> A D.C. Superior Court jury said American University is liable for age discrimination against a professor, Loubna Skalli Hanna, who was denied tenure. The jury awarded Hanna $1.15 million in economic damages and $175,000 in emotional distress damages. Hanna is represented by Lynne Bernabei, Michael Ellement and Devin Wrigley of Bernabei & Kabat PLLC, and Eric Bachman, a principal at Zuckerman Law. William Nussbaumand A.J. Kornblith of Saul Ewing Arnstein & Lehr represented American University.
>> Walmart has agreed to pay $65 million to settle class action claims that the retail company refused to provide seating for cashiers, according to Reuters. Walmart, represented by a team from Katten Muchin Rosenman LLP, denied any wrongdoing. Reno, Nevada-based Jones Law Firm and San Francisco’s Righetti Glugoski were class counsel. Read the motion for preliminary approval here, as filed in the Northern District of California. The proposed deal, according to the court papers, “represents the largest [Private Attorneys General Act] settlement in the history of the state of California, and significantly exceeds the amount of all other suitable seating settlements combined.” Attorney fees were set at up to $21,664,500.
Notable Moves & New Hires
>> Susan Harthill, who had served as the Labor Department’s deputy solicitor for national operations since 2014, joined Morgan, Lewis & Bockius in the Washington office as a partner. Harthill formerly was a law professor at Florida Coastal School of Law before joining the Obama-era Labor Department. Read more at the National Law Journal.
>> Phillips Murrah P.C. hired Janet Hendrick as a partner in Dallas. Hendrick left Fisher Phillips to take the new role. She has also worked for Jones Day in New York.
>> Reed Smith hired Thomas Posey as a labor and employment partner in Chicago. He previously worked at Faegre Baker Daniels. The firm’s employment team recently hired Jill Vorobiev and Courtney Ofosu from Sheppard Mullin Richter & Hampton.
Around the Water Cooler
>> “Technology is racing way ahead of legal developments and the law it [is] trying to keep up,” Charles Fournier, a partner at Curley, Hurtgen & Johnsrud in New York and former senior vice president for employment law at NBCUniversal, says about social media policies.
>> The Washington Post reports on what it called the “Sexual Harassment Defense Industrial Complex”—a “mix of lawyers, public relations professionals, female character witnesses and pundits who play a role in beating back sexual harassment claims when they are leveled against powerful men backed by a powerful institution.”
>> Momentum could soon build to require private employers to conduct sexual harassment training for its workers after bold measures passed by New York and California this year. There are signs such moves may seem like a way to address workplace harassment following the #MeToo movement. [National Law Journal]
>> A National Labor Relations Board dispute between McDonald’s Corporation and its franchisees is getting political. Former ethics officials have called for Trump-appointed members to recuse. [Bloomberg Law]