Welcome to Labor of Law. What will the Democratic takeover of the U.S. House mean on the labor and employment front? We reached out to take the pulse. Divided Congress could mean gridlock, but then there are hearings and more hearings. And that means work for lawyers. Get ready for messaging, oversight and more focus on the states. Scroll down for Who Got the Work and for On the Docket, where we’ve got the latest updates on some big-ticket cases at the Supreme Court.
Midterm Elections: What Employment Lawyers Are Thinking About
Tuesday’s election creates a divided Congress, and diminished chances for any big-ticket legislation getting approved. Still, the new power dynamic does present some practical implications for labor and employment attorneys and for congressional investigations lawyers who are gearing up for greater oversight. My colleague Ryan Lovelace spotlighted how lawyers and lobbyists are looking for opportunities in the divide on Capitol Hill, and check out my run-down on some of what L&E lawyers are saying about the new reality in Washington.
We can expect lots of hearings and press releases on progressive issues that would not have gained traction in the Republican-led House. Anti-arbitration. Pro-union. Boosting the minimum wage. House Democrats will want to hear more from regulators at the NLRB, EEOC and Labor Department about what they are up to—business-friendly initiatives will come under greater scrutiny.
All of this might end up being messaging for 2020. While few policy changes on the federal level will move forward, states such as New York and California are likely to ramp up with more measures addressing the workplace.
“A lot of times politicians like to have an issue rather than solve a problem. The House Democrats will have the benefit of the spotlight,” Scott Witlin, partner at Barnes & Thornburg in Los Angeles, told me this week. “They will have to decide if they want to get things accomplished or use their newly gained power for publicity.” Still, there might be some areas where middleground is reached. Think: Overtime and minimum wage issues, said King & Spalding partner Cheryl Sabnis.
“Those issues can come down to dollars and cents. General parameters and agreements can be reached,” she said. “What’s difficult is when you get into areas of broad disagreement for people based on party lines, such as LGBTQ rights, protections for women in the workplace and progressive employment laws such as paid family leave and child care.”
Rich Meneghello and Ben Ebbink of Fisher Phillips said in a recent blog post that the House may target measures that limit arbitration, especially after a Supreme Court ruling last year that said employers can restrict class actions through the use of mandatory arbitration agreements in employment contracts. Good luck getting anything like that through the Senate.
“[M]ost of these actions would be largely symbolic and would amount to nothing in the end. The Republican party continues to control the Senate, and in fact expanded their slim margin of power in yesterday’s election,” the Fisher Phillips wrote. “There is almost no scenario imaginable where any of these measures would clear the Senate hurdle, although a more moderate increase to the federal minimum wage might not be out of the question.”
>> All of these political issues and more may be the subject of water cooler chatter at the office… and employers should be aware of the increased potential for harassment and hostile workplace claims.
Employers have broad power over what’s acceptable speech, but there are limits. David Barron, a Cozen O’Connor member in Houston, told me this election season is particularly ripe for overlap between political issues and discrimination. “From the #MeToo movement and the [Brett] Kavanaugh confirmation hearings to immigration topics and racial issues, there is a fear that someone could easily be offended during these workplace discussions,” Barron said in an interview. “A lot of lawyers try to manage that in the workplace.”
Tips? Feedback? I’m Erin Mulvaney in Washington, D.C., covering labor and employment from the Swamp to Silicon Valley. Contact me at firstname.lastname@example.org and on Twitter @erinmulvaney. Thanks for reading Labor of Law.
On the Docket
>> LGBT cases at the Supreme Court are now set for conference. The Supreme Court has set three cases for the Nov. 30 conference that confront the scope of civil rights workplace protections for gay, lesbian and transgender workers. Altitude Express v. Zarda, Harris Funeral Homes v. EEOC, and Bostock v. Clayton County will each be considered at the conference. The Justice Department and EEOC have taken opposing sides on the scope of Title VII’s protections. Read my background story here.
>> Salary history dispute unfolds at SCOTUS. Attorneys for Aileen Rizo submitted a brief in opposition that urges the justices to leave untouched a Ninth Circuit decision that says employers can’t use prior salary history to justify paying men and women differently in comparable positions. A team from Jones Day earlier filed a cert petition, on behalf of a California school district, challenging the appellate ruling. Rizo’s attorney, Daniel Siegel of Siegel, Yee & Brunner, argues: “Contrary to petitioner’s argument, there is not a single circuit in the Nation that would accept this bare-bones justification as an affirmative defense to an Equal Pay Act claim.” More background here.
>> Texas pushes back against EEOC’s guidance on hiring of workers with criminal records. Texas is fighting the U.S. Equal Employment Opportunity Commission’s guidance that recommends employers adopt policies that do not exclude those with criminal background in the hiring process. In a recent filing, assistant Solicitor General Jason LaFond argued: “This case is the latest round of an ongoing cat-and-mouse game—with regulated parties and courts on one side and agencies on the other—in which agencies seek to avoid wherever they can the obligations imposed on them by Congress.” The Justice Department recently filed a brief in this case, arguing the state did not have a right to sue. Still, DOJ abandoned the EEOC’s position. Read more here.
>> Age-discrimination protections are upheld. In an 8-0 ruling penned by Justice Ruth Bader Ginsburg, the Supreme Court held that states and political subdivisions are “employers” covered by the federal Age Discrimination in Employment Act regardless of the number of employees. The case Mount Lemmon Fire District v. Guido will expand the reach of protections for older workers. A slew of lower courts have ruled otherwise. It’s rare to see a unanimous court on employment rulings, particularly with a circuit split. My colleague Marcia Coyle reported more here.
Who Got the Work
>> Blank Rome is facing a gender and age discrimination lawsuit filed by Marion Letterie, the company’s former director of telecommunications in the U.S. District Court for the Eastern District of Pennsylvania. Julie Uebler of Greenblatt, Pierce, Funt & Flores represents Letterie. The Legal Intelligencer has the full story.
>> MPW Industrial Services Inc. agreed to pay $170,000 to settle an EEOC claim that workers were subjected to racial jokes and comments, including claims that a noose was put over an African American worker’s neck. The agency in the lawsuit in the U.S. District for the Southern District of Ohio said the company did nothing to stop the harassment of the workers. The company agreed to train its supervisors in addition to the settlement. Kristine Missall Woliver and Meghan Hill of Squire Patton Boggs represented the company. Read the complaint and the consent decree.
Around the Water Cooler
>> We may see fewer corporate holiday parties with employers citing fears of the potential for sexual harassment and inappropriate behavior liabilities, according to a new survey. [Bloomberg]
>> Class actions pending against Lyft and other ride-hailing companies could upend the business models of gig companies. These lawsuits follow a California Supreme court decision that creates a new and more rigorous test for classifying workers as independent contractors. [Daily Dot]
>> The New York state court system is not free from stories of sexually inappropriate behavior involving judges, clerks and court officers. [New York Law Journal]
>> How do in-house counsel for gig economy companies grapple with legal issues? The growing sector leads to headaches. “Since the recession in the United States in 2008, uncertainty drove employers to be more cautious about recalling or hiring full-time employees. The contingent worker model has exploded from that,” says Suellen Oswald, a principal in the Cleveland office of employment law firm Jackson Lewis. [Corporate Counsel]
>> The Google walkout may provide insight for companies grappling with sexual harassment allegations. The workers walkout was prompted by reports that high level executives accused of misconduct were given large payouts. [The New York Times]