Labor of Law: #MeToo Investigation Strategies | NLRB Ethics Flap | Plus: Who Got the Work

Welcome to Labor of Law. We look at what’s next for the National Labor Relations Board member accused of an ethics violation and address how to wade through new territory in sexual harassment investigations. Scroll down to see who got the work in Uber, Tesla and Wells Fargo 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 emulvaney@alm.com and on Twitter @erinmulvaney. Thanks always for reading. With that, let's get started.

How to Improve Internal Investigations in #MeToo Era

The #MeToo movement has launched a cottage industry for law firms and third-party groups to conduct internal investigations and improve training and best practices in companies. Notably, there has been a surge in demand for such services. Companies want to minimize liability, and foster positive work environments, and advocates are pushing for foundational change to ensure long-term improvements are put in place. Jade Lambert, a King & Spalding partner in Chicago, says internal investigations need to be re-examined in the new space. “Many organizations (and their lawyers) are just beginning to grapple with the potentially seismic cultural shift accompanying the #MeToo movement,” Lambert says.“No one can predict the full impact of this moment for corporate culture or internal investigations, and even the most conscientious organizations are likely to have missteps along the way. Despite the uncertain environment, we cannot ignore this sea change in favor of business as usual.” Here’s a snapshot of Lambert's advice on how to make a lasting impact and improve investigations at companies: ➤➤ Women should play a significant role in these investigations. ➤➤ Think critically about the impact of skepticism in these investigations. Balance healthy and necessary skepticism with the need to create an environment where women feel comfortable reporting. ➤➤ Examine the relative weight assigned to Courts of Law versus Courts of Public Opinion. While clients might not see the inside of a courtroom, the issues are playing out ever more in the press—and the exposure could be more costly to a company than any settlement. ➤➤ Rethink traditional “tools” used to resolve allegations of assault and harassment. Settlements and nondisclosures can save organizations cost but they may be less effective than they seem on paper. Companies should keep in mind backlash and also not assume issues of misconduct are resolved just because papers have been signed. Meanwhile, The New York Times recently stepped back to look at what has changed in recent months. The U.S. Equal Employment Opportunity Commission has not seen an uptick in complaints of sexual harassment, the agency’s leaders have said. Some low-wage employers told the Times they had not taken new steps to prevent harassment. Others said they already had the right policies in place. The court of public opinion may sway in favor of victims speaking out, but a frustration for advocates is that few would prevail in court based on statutes of limitations and other restrictions, the Times said. “Cases are settling for premium dollars very quickly,” Debra Katz of Washington's Katz Marshall & Banks told the Times. In recent months, Katz said she settled three cases against CEOs. Companies want to "avoid the public black eye, being outed as harassers,” Katz told the NYT.

More About Emanuel’s Alleged Ethics Violation...

➤➤ The next steps for Trump-appointed National Labor Relations Board member William Emanuel are unclear, now that he has been accused by the board’s inspector general of improperly voting in a high-profile labor case connected to his former firm Littler Mendelson. Read the latest IG report here that says Emanuel violated the presidential ethics pledge in casting a vote that overturned the Obama-era joint-employment rule. Emanuel’s attorney, Zuckerman Spaeder chairman Dwight Bostwick in Washington, denied he violated the ethics pledge. ➤➤ After the finding from Inspector General David Berry, Democratic lawmakers and unions called for greater scrutiny and for Emanuel to resign. Meanwhile, we're left with questions. Are there lasting consequences for Emanuel? Or for the board itself? Bostwick sees widespread consequences—in his words: "significant, negative implications." In his letter to Berry, he urged the NLRB to solicit the views of the White House ethics office "in light of their interests in matters impacting presidential nominees." ➤➤ Roger King, a senior lawyer at the HR Policy Association, told Bloomberg Law on March 23 that the calls for Emanuel’s resignation are “based on a factually inaccurate, legally inaccurate IG report that’s without precedent.” “The person that should be considered for resignation, frankly, is IG Berry,” King said. “He’s doing a great disservice to the future of the board by becoming so politicized in his approach.” ➤➤ Emanuel would not have to self-report Berry’s investigation and finding to the California bar, where he is a member, said David Carr, an ethics attorney in San Diego. Emanuel worked for Littler for several decades in Los Angeles. (You can read the full list of mandatory reporting requirements here.) Still, the California bar is “fairly unpredictable,” said Michael Frisch, ethics counsel at Georgetown University Law Center, who formerly was senior assistant and assistant bar counsel to the District of Columbia Court of Appeals. Historically, any bar complaint that has a whiff of political motivation tends to fall flat, he said.

Who Got the Work

→ Uber has agreed to pay $10 million to settle a discrimination class action in California federal district court. Outten & Golden represented the plaintiffs, about 420 women and minority software engineers. A team from Paul Hastings represented Uber, which has agreed to reform certain compensation and promotion practices for the class. [The Recorder] → Tesla faces a whistleblower suit over the sale of repaired cars as new. Toni Telles of the Law Offices of Eric A. Shore filed the suit. Alexa Nelson of Littler Mendelson in Philadelphia represents Tesla. My colleague Charles Toutant in New Jersey has more here. → Wells Fargo settled a whistleblower case in Oregon federal court. Michael Fuller of Olsen Daines represented whistleblower Duke Tran. Leah Lively, a Davis Wright Tremaine employment partner in Portland, Oregon, was counsel for Wells Fargo. The settlement amount was reportedly seven figures, according to The New York Times. → A New York federal judge has certified a class against MetLife over alleged unpaid overtime. New Jersey’s Krakower DiChiara and New York’s Sanford Heisler Sharp represent the plaintiffs. MetLife is represented by Christopher Parloand Melissa Rodriguez of Morgan, Lewis & Bockius. → Sara Blackwell, an employment lawyer in Sarasota, Florida, is representing a New Orleans Saints football team cheerleader in a discrimination complaint filed to the U.S. Equal Employment Opportunity Commission, according to The New York Times. Leslie Lanusse, a labor and employment partner at the firm Adams and Reese, represents the Saints. → A Massachusetts federal judge dismissed the Title VII claims of a former Harvard university professor who said she was denied tenure due to her advocacy for those who endured sexual assault. Jennifer Ann Kirby of Foley Hoag and Robert Fisher of Seyfath Shaw represented Harvard. Elizabeth Rodgers ofGordon Law Group and Lauren Khouri of Correia & Puth, along with teams from their respective firms, represented the professor.

New & Notable Labor Moves

➤➤ Barnes & Thornburg, Dechert, DLA Piper and Quinn Emanuel Urquhart & Sullivan have all recently picked up partners to bolster their presence in the local legal market. Indianapolis-based Barnes & Thornburg brought on Ogletree, Deakins, Nash, Smoak & Stewart labor and employment partners Dawn Collins and Tae Kim, while a pair of Venable partners decamped for DLA Piper and Quinn Emanuel. Dechert, meanwhile, hired Hughes Hubbard & Reed class action co-chair partner David Stern for its litigation department in Los Angeles. ➤➤ Natalie Brouwer Potts joined Dykema as part of its labor and employment practice group as a senior counsel in the firm’s Chicago office. Potts joins Dykema after serving as Title IX Officer at San Jose State University. ➤➤ Michael D. Hornback joined Littler Mendelson as special counsel in the firm’s Lexington, Kentucky, office. He was previously an attorney with Wyatt, Tarrant & Combs LLP. ➤➤ Squire Patton Boggs hired Katharine Liao as partner in the Labor & Employment Practice, resident in New York. Liao previously worked at DLA Piper.

Around the Water Cooler

The #MeToo wave has employers—and their insurers—running for cover. Brian Kabateck, founder and managing partner at Kabateck Brown Kellner, and associate Nicholas Moreno assess the landscape. [The Recorder] Fisher & Phillips launches a lobbying subsidiary amid the "Weinstein effect." FP Advocacy will focus on federal regulation and California, where almost two-dozen antisexual harassment bills are before the state legislature. [The Recorder] Why management lawyers are tracking the U.S. Justice Department's lawsuit against California's immigration laws. An uptick in ICE enforcement paired with a DOJ lawsuit against a state law that checks federal officers has attorneys offering advice to their clients on how best to comply. [National Law Journal] Here are some thoughts on the tax code’s new "Harvey Weinstein rule." John McCreary Jr., a shareholder at Babst Calland, writes that the tax reform law passed last year denies deductions for payments made in settlements of sexual harassment or sexual abuse cases, and related attorney fees. [Legal Intelligencer] It's a transformative time for employment law. HireRight's Alonzo Martinez talks background checks, background screenings and drug testing for companies around the world, helping many a legal and HR department decide who to hire and retain, while also remaining compliant with employment and privacy laws. [Corporate Counsel] Chadbourne lauds efforts by its own accuser in settled sex bias case. The firm, now part of Norton Rose Fulbright, said ex-partner Kerrie Campbell "contributed to important ongoing dialogue within the profession about gender issues" by suing the firm for $100 million. [The New York Law Journal]

That's all for this week. Shoot me a note with thoughts and suggestions: emulvaney@alm.com. Thanks for reading!