Welcome to Labor of Law, and we hope you, family, friends and colleagues are safe in the virus era. On tap this week: As businesses open, lawsuits loom over covid-19 exposure | In legal recruitment case, stop playing 'games,' Texas judge warns | L&E headlines: Workplace surveillance in focus amid pandemic | Who Got the Work. And scroll down for moves and more: Holland & Knight expands ERISA team.

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

 

 

As Businesses Reopen, Lawsuits Loom Over COVID-19 Exposure

As businesses reopen during the COVID-19 pandemic, tort reformers are mobilizing to enact federal and state protections against an anticipated plethora of personal injury lawsuits, but plaintiffs attorneys vow on suing companies that negligently expose customers and employees, my colleague Amanda Bronstad writes at Law.com.

"The level of concern is widespread across the business community in terms of the emerging liability issues," Harold Kim, president of the U.S. Chamber's Institute for Legal Reform, said.

More than 100 plaintiffs organizations, including the American Association for Justice, said in an April 29 letter to Congress that they "strongly oppose" legislation that would give "nationwide immunity for businesses that operate in an unreasonably unsafe manner, causing returning workers and consumers to risk COVID-19 infection."

Only a handful of U.S. lawsuits are pending over COVID-19 deaths and illnesses, despite the number of coronavirus cases exceeding 1 million. But the cases all make similar allegations: the companies knew about the coronavirus but did not do enough to prevent its spread.

More reading: Coronavirus could unleash an 'avalanche' of lawsuits over family leave, discrimination. "I'm one of these that believe that when the courts open back up, there's going to be an explosion of coronavirus-related litigation, and this is just one piece of it," Cynthia Blevins Doll of Fisher Phillips said. [The Washington Post]

 

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Exasperated Texas Judge Warns Lawyers in Recruiter Case Against 'Game Playing'

A U.S. magistrate in Texas is urging the lawyers in a legal recruitment lawsuit to start focusing more on the facts of the dispute than dwelling on matters of process, as he suggested that a recent dustup over subpoenas issued to law firms was wasting "a lot of time and money."

The judge, Andrew Austin, expressed frustration about what he called "game playing" in the case, which involves a Texas recruiter's trade secret claims against a former employee named Evan Jowers. Austin, of the U.S. District Court for the Western District of Texas, last week denied Jowers' move to stop his former employer, MWK Recruiting Inc., from sending additional third-party subpoenas to other law firms. Jowers is represented by DLA Piper.

Austin said that sides in the case "are spending more time fighting about process, as opposed to what the actual facts of the dispute are about—wasting a lot of time and money. And if you want to waste your client's time and money, that's fine. But I'm not going to let you waste the court's time on this case."

Austin's remarks about process came just days after he criticized how the law firm Kirkland & Ellis had responded to a subpoena from MWK. Read our full report at Law.com and earlier coverage here.

 

 

Who Got the Work

>> U.S. health official Rick Bright has turned to Christine Blasey Ford's lead attorney in the Brett Kavanaugh confirmation fight, Debra Katz, in a whistleblower complaint alleging Bright was removed from his position for resisting the use of unproven malaria drugs to combat the spread of COVID-19. Katz is a name partner at Katz Marshall & Banks.

>> The law firm Guerrieri, Bartos & Roma sued United Airlines on Tuesday in New York Eastern District Court in connection with a mass reduction of full-time employees to part-time status. The case was filed on behalf of the International Association of Machinists and Aerospace Workers.

>> Monsanto, represented by Thompson Coburn, recently sued its former chief science officer Samuel Eathington in Missouri Eastern District Court over alleged theft of trade secrets. The defendant recently moved to a competing biotechnology company called Corteva.

 

 

Around the Water Cooler

Covid-19

Managers Turn to Surveillance Software, Always-on Webcams to Ensure Employees Are (Really) Working From Home. "In the weeks since social distancing lockdowns abruptly scattered the American workforce, businesses across the country have scrambled to find ways to keep their employees in line, packing their social calendars and tracking their productivity to ensure they're telling the truth about working from home." [The Washington Post] More here at Slate: Your Boss Wants to Know Whether You Washed Your Hands

How My Boss Monitors Me While I Work From Home. A first-person account from a New York Times reporter about being watched (by his editor). [NYT]

Amazon VP Resigns Over Whistleblower Firings. "A senior Amazon software engineer has resigned in protest over the company's dismissal of whistleblowers who brought attention to safety concerns among its warehouse workers. Tim Bray, a vice-president at Amazon Web Services, the retailer's cloud computing division, said on Monday that he had stepped down from his role as vice-president." [Financial Times] Read Bray's blog post here.

Salesforce Unveils Tools to Help Companies Safely Reopen Offices. "Salesforce.com Inc. has unveiled software aimed at helping companies and government offices safely reopen amid the coronavirus pandemic. The applications, collectively called Work.com, will help organizations orchestrate shifts for when groups of employees can work in the office, as well as manage emergency response procedures and conduct manual contact tracing, the company said Monday in a statement. There's also a tool to let workers self-report their wellness." [Bloomberg]

White House and Congress Clash Over Liability Protections for Businesses as Firms Cautiously Weigh Virus Reopening Plans. "Congressional leaders are girding for a huge fight over the reentry of millions of Americans to the workplace, with Senate Majority Leader Mitch McConnell (R-Ky.) insisting that employers be shielded from liability if their workers contract the coronavirus. He appears to have the backing of top White House officials. Democratic leaders have declared they will oppose such blanket protections, putting Washington's power brokers on opposite sides of a major issue that could have sweeping implications for health care and the economy in the coming months. The battle has unleashed a frenzy of lobbying, with major industry groups, technology firms, insurers, manufacturers, labor unions, and plaintiffs lawyers all squaring off." [The Washington Post]

Do You Have to Go Back to Work If It Reopens But You Still Don't Feel Safe? "Employers need to be aware of the evolving guidance from the various government and public health authorities, and implement or adapt policies as warranted," Ron Chapman, an attorney at Ogletree Deakins, said. [Fast Company]

The Office You Left Is Not Going to Be the Office You Return To. "The pre-Covid workplace, with its shared desks and common areas designed for 'creative collisions,' is getting a makeover for the social distancing era. So far, what employers have come up with is a mash-up of airport security style entrance protocols and surveillance combined with precautions already seen at grocery stores, like sneeze guards and partitions. Like much of the response to the pandemic, it's an evolving work in progress. But one thing is clear: It will look and feel very different than the offices many abandoned in March." [Bloomberg] NYT has more here: The Pandemic May Mean the End of the Open-Floor Office

Long-Sought U.S. Labor Rule Change Raises Worker Safety Questions in Coronavirus Crisis. "Some contract workers in America's fast food restaurants, hospitals and warehouses could find it harder to demand equipment and other measures to protect them from the coronavirus under a new labor agency rule, according to workers' advocates and unions." [Reuters]

U.S. Workplace Safety Rules Missing In The Pandemic. "As more businesses start to reopen and people go back to work, some companies are looking for advice on how to keep employees safe from the coronavirus. So far, the federal government hasn't been much help." [NPR]

Courts and cases

The Gig Is Up? California AG, City Attorneys in LA, SF and San Diego Hit Uber and Lyft With Worker Misclassification Lawsuit. California's attorney general and the city attorneys of Los Angeles, San Diego and San Francisco have alleged that Uber Technologies Inc. and Lyft Inc. have violated California law by classifying drivers as independent contractors, my colleagues Ross Todd and Alaina Lancaster in San Francisco report. In a lawsuit filed Tuesday in San Francisco Superior Court, the state and city lawyers assert that the ride-hailing companies have exploited hundreds of thousands of California workers. [The Recorder] The New York Times has more here.

U.S. Judge Dismisses Lawsuit Over Worker Safety at Smithfield Pork Plant. "A U.S. federal judge has dismissed a worker advocacy group's lawsuit accusing Smithfield Foods Inc, the world's largest pork processor, of failing to adequately protect employees from the novel coronavirus at a plant in Missouri." [Reuters]

U.S. Soccer Scores Victory in Equal Pay Suit With Women's Team Players. "Judge R. Gary Klausner of the United States District Court for the Central District of California ruled in favor of U.S. Soccer, dismissing players' claims that they were under paid in comparison with the men's national team." [Reuters] The Washington Post has more here. The New York Times has this report: Can U.S. Soccer and Its Women's Team Make Peace on Equal Pay?

Oracle Women Score Major Win in Court Battle Over Equal Pay. "Three female employees at Oracle Corp. scored a major victory in court, gaining the right to represent thousands of others in a gender-discrimination lawsuit over pay, a legal milestone that has eluded women at other tech titans. A California state judge certified the class action Thursday, allowing the lawsuit to advance on behalf of more than 4,000 women who claim the database giant pays men more for doing the same job." [Bloomberg]

Another Judge Turns Back Lyft Driver Worker Reclassification Attempt Amid Pandemic. A California state court judge has refused to grant an emergency motion in a case against Lyft Inc. that would reclassify drivers as employees, so that they can take advantage of state-mandated paid sick leave during the coronavirus pandemic, my colleague Alaina Lancaster reports. [Law.com]

EEOC to Issue First Opinion Letter in Thirty Years. "The Equal Employment Opportunity Commission will issue its first opinion letter in over three decades, clarifying that opting in to a tax credit for hiring individuals with disabilities, veterans, and other underrepresented workers doesn't violate anti-discrimination laws." [Bloomberg Law]

 

 

Notable Moves & More

>> Holland & Knight has recruited three partners, Todd Wozniak, Lindsey Camp and Peter Hall, to start a national ERISA litigation team handling disputes over corporate retirement and health plans, my colleague Meredith Hobbs reports. Wozniak, who joined from Greenberg Traurig, is chairing the new team at Holland. Camp also joined from Greenberg, where she'd been a senior attorney, while Hall had been a partner at Chamberlain, Hrdlicka, White, Williams & Aughtry.

>> Paul Hastings has brought on Jeffrey Webb, the national leader of Ropes & Gray's labor and employment practice, as a new partner in Los Angeles, my colleague Patrick Smith reports. "The current global pandemic has reinforced the importance of employment law advice for our clients around the world," Seth Zachary, chairman of Paul Hastings, said. "Now more than ever, our clients are coming to us for advice on navigating workforce challenges posed by the COVID-19 pandemic, and we expect that to continue even as the crisis abates."

>> Loeb & Loeb said Marina Casani has joined the firm's New York office as a partner in the capital markets and corporate department. Casani focuses on executive compensation and employee benefits.

>> How Littler Mendelson's Michelle Lynn DiCuollo made partner: "Be bold. Don't undersell yourself, don't shy away from opportunities, and don't forget to take care of yourself," DiCuollo says, as advice for associates. Read more here at Law.com.