Welcome to Labor of Law—I'm Mike Scarcella in Washington, and you can reach me at [email protected] and on Twitter @MikeScarcella. Thanks for reading!

Winston & Strawn's Battling a Former Partner

Winston & Strawn this week got some help from friends in the firm's U.S. Supreme Court quest to reverse a California employment ruling that said a former partner wasn't required to arbitrate her gender discrimination claims. The firm, represented by Orrick, Herrington & Sutcliffe partner E. Joshua Rosenkranz, contends California courts are thumbing their nose at the Federal Arbitration Act.

The opposition brief from the former partner, Constance Ramos, is due next month.

In the meantime, the justices are hearing from a bevy of pro-arbitration voices—including one big law firm itself, Ropes & Gray, which submitted an amicus briefsupporting Winston & Strawn earlier this week. The brief was filed by Douglas Hallward-Driemeier, head of Ropes & Gray's appellate and Supreme Court practice. A few snippets follow:

• “Confidential arbitration offers a means of shielding client and firm confidential information, and avoiding the immeasurable harm that may flow from public disputes—particularly disputes that center on specific client relationships, like the complaint that respondent filed here.”

• “Confidential client information is often central to a departing partner's claims against his or her law firm. Disputes over compensation may implicate how much work was performed on certain client matters by different lawyers, as well as the nature of the services performed. Resolving these disputes generally requires reviewing detailed records describing the work and advice provided to clients.”

• “Arbitration facilitates a much more timely and efficient resolution of these matters, which is particularly critical in a client services industry where protracted, time-consuming litigation of internal disputes can create either a real or perceived impediment to firms' ability to meet their clients' business needs.”

Rae Vann of NT Lakis LLP, counsel of record for the Center for Workplace Compliance, said in an amicus brief: “This court should review the decision below to resolve an issue of significant importance to the employer community: whether California's arbitration-specific rules in Armendariz v. Foundation Health Psychcare Services are preempted by the Federal Arbitration Act. Despite this court's pronouncement in Concepcion that states cannot enforce rules that apply only to arbitration agreements, California courts, relying on Armendariz, continue to do so.”

>> Meanwhile… Wendy Moore, the former Jones Day partner who sued the firm last year claiming that its black box pay system led to gender disparities, has dismissed all claims according to the firm. A spokesman for Jones Day said Moore “has now dismissed all of her claims against Jones Day in exchange for return of the capital that she previously contributed to the firm.” Even with the resolution of Moore's lawsuit, Jones Day still faces a separate gender discrimination lawsuit filed in federal court in Washington earlier this year.

EEOC Pay-Data Collection Update

Lawyers for the EEOC recently told a Washington federal judge that the agency “is currently on track to open the Component 2 data collections for calendar years 2017 and 2018 from July 15, 2019 through September 30, 2019.” The agency has set up a new website—https://eeoccomp2.norc.org—to be a portal for employers who are required to file the data sets.

“At this point (and at least until employers begin submitting Component 2 data), EEOC cannot begin to project what percentage of employers will submit Component 2 data by September 30, 2019,” the EEOC said in a new report.

U.S. District Judge Tanya Chutkan (above) reinstated the Obama-era rule in March after concluding the Trump administration didn't follow procedures in stopping enforcement. The Justice Department's appealed the ruling to the D.C. Circuit. The rule requires many mid-sized and large companies to provide compensation data to the EEOC based on race, ethnicity and sex.

David Schwartz, a partner at Skadden, Arps, Slate, Meagher & Flom, and Risa Salins, a counsel at the firm, said in a recent post that the ruling “seems to have blindsided the EEOC.” Indeed, the EEOC has advised the revived data-collection poses “significant practical challenges” for the agency. But so far at least, the government hasn't asked the D.C. Circuit to freeze Chutkan's decision.

“The impact of the new reporting requirements on employers to collect expanded Wage Data for 2017 and 2018 is significant, as most employers have not kept pay data in a form transmissible to the EEOC,” the Skadden lawyers said in their post. “Business groups, including the U.S. Chamber of Commerce, have asserted that employers need at least 18 months to complete the expanded EEO-1 Report.”

They added: “However, until further clarity is provided, employers are advised to be prepared to submit wage data for 2017 and 2018 by Sept. 30, 2019.” Schwartz, based in New York, is global head of Skadden's labor and employment group.

Who Got the Work

>> The U.S. Court of Appeals for the Fourth Circuit has found a former Northrop Grumman Systems Corporation employee is not entitled to whistleblower protections under the Sarbanes-Oxley Act. David Ogden (above) of Wilmer Cutler Pickering Hale and Dorr argued for Northrop Grumman, and Sarah Kay Marcusrepresented the U.S. Department of Labor.

>> “Two challenges by Southwest Airlines Co. and United Airlines Inc. employees to the use of their fingerprints to clock in shouldn't be heard in federal court, the Seventh Circuit said June 13,” according to a Bloomberg Law report. John Marrese of Chicago's Hart McLaughlin & Eldridge argued for the appellants, and Melissa Siebert of Shook Hardy & Bacon argued for Southwest Airlines. Read the decision here.

>> Charter Communications has hired Proskauer Rose to rebut claims brought by five NY1 anchorwomen alleging gender discrimination, The New York Times reports. “We take these allegations very seriously and as we complete our thorough review, we have not found any merit to them,” a Charter spokesperson said. The plaintiffs are represented by a team from Wigdor LLP—Douglas Wigdor, David Gottlieb and Julia Elmaleh-Sachs. The complaint was filed this week in Manhattan federal district court.

>> Mark Tabakman of Fox Rothschild in Princeton represented Cream-O-Land Dairy in a wage-and-hour dispute in New Jersey state court. My colleague Charles Toutant reports a state appeals court has overturned the dismissal of claims brought by a class of truckers. Ravi Sattiraju of the Sattiraju Law Firm represents the plaintiffs.

Around the Water Cooler

>> Most Gig Workers Won't Be Seen as Employees, Trump Lawyers Say. “Although it is very much a fact-specific inquiry, the relationship between virtual marketplace companies and service providers does not always fit neatly into the employer-employee relationship,” Labor Solicitor Kate O'Scannlain (above) said. [Bloomberg Law]

>> How the Supreme Court Made Sexual Harassment Cases More Difficult to Win. “It's been 33 years since the Supreme Court recognized a civil rights action for making the workplace a living hell. Imagine what might have happened in those decades, if employers had been strictly liable for the acts of the people they hire.” [The Washington Post]

>> Federal Employee Appeals Agency Could Restart Issuing Decisions Soon. “A federal appeals-deciding agency that has been unable to decide appeals for more than two years because of a lack of leadership is one step away from restarting that work, after a Senate committee action Wednesday. Nominees are ready for confirmation by the full Senate to fill all three seats on the Merit Systems Protection Board, which has lacked a quorum since January 2017 and which has had no members for four months.” [The Washington Post]

>> Wall Street Dads Find Parental Leave Easier to Get Than to Take. “Even though big banks and other Wall Street firms have boosted paid time off for new parents to some of the highest levels offered in the U.S., men still worry about staying at home for months, according to interviews with a dozen current and former employees. They fear what happens when they detach from a culture that lionizes face time and relationship upkeep. The signals are subtle and the pull of tradition is strong.” [Bloomberg]

>> A Black Boeing Employee Found a Noose Over His Desk. Now He's Suing the Company. “Curtis Anthony alleges in the lawsuit that his colleagues at the North Charleston, South Carolina, Boeing plant also used the n-word and urinated on his desk. He is suing over discrimination on the basis of race, retaliation, intentional infliction of emotional distress, violations of the Family Medical Leave Act and breach of contract.” A Boeing spokeswoman said Anthony “is a valued Boeing South Carolina teammate,” but “there is no validity to his allegations.” Read the complaint here. [CNN] The Washington Post has more.

>> Number of Workplace Safety Inspectors Fall Under Trump. “The number of compliance safety and health officers tasked with conducting workplace inspections at the agency had fallen in April to 870. That's down from the 875 safety inspectors that OSHA reported in January.” [Politico]

>> Employee Nonsolicitation Clauses Are Not Enforceable in California. “Recognizing that noncompete provisions are invalid under California law, employers in California have long used employee nonsolicitation provisions in their employment agreements as an alternative strategy to limit competition for employees. Now, courts are making clear that this work-around is unacceptable, and that employee nonsolicitation clauses are impermissible in California.” [The Recorder]

Notable Moves & Announcements

• Barnes & Thornburg added former Seyfarth Shaw lawyers Peter Wozniak as partner and Mark Wallin as of counsel in the firm's labor and employment department in Chicago. “Employers are facing increasingly complex class and collective actions on a number of legal fronts, from federal claims under the FLSA and Title VII to plaintiff-friendly state statutes,” Kenneth Yerkes, chair of Barnes & Thornburg's labor and employment team, said in a statement.

• Jackson Lewis has hired litigator Greg Coulter in Phoenix as a principal. Coulter joins the firm from Littler, where he spent the last 15 years representing employers. • Franczek P.C., the Chicago labor and employment boutique, has hired Tracey Truesdale as partner Truesdale, who has more than 28 years of experience in private practice, joined the firm from Ogletree, Deakins, Nash, Smoak & Stewart.

• Perkins Coie named labor and employment specialist Danielle Ryman as managing partner of the firm's Anchorage office. Danielle succeeds Eric Fjelstad, who served in the role since 2007.

• Littler Mendelson has added Andrea Lovell as a shareholder in its Phoenix office. Lovell joins from Ryley Carlock & Applewhite, where she led the labor and employment group.

• Jackson Lewis said Kelly Kichline has rejoined the firm's Las Vegas office as a principal. Kichline arrives from Caesars Entertainment Corporation, where she was vice president and chief counsel for employment law.