On March 22, 2021, the SEC launched a new page on its website to collect agency actions and resources about climate and environmental, social, and governance (ESG) issues in investing. This is the latest in a series of initiatives by the Commission signaling that climate and ESG disclosures—that is, the information asset managers and public companies provide to investors about their ESG-related risks and opportunities—will take center stage as the Commission adapts to the priorities of the Biden administration. Investors increasingly look to a company’s ESG impact or whether a fund follows ESG criteria to inform their investing decisions. Similarly, many younger consumers rely upon ESG factors to guide their purchasing choices. The lack of a standardized ESG framework makes it difficult for investors and other stakeholders to make “apples to apples” evaluations of a company’s or fund’s ESG practices.

• Climate Change
• Environmental, Social, and Governance (ESG)

Discrimination doesn’t just include refusing to hire someone based on a protected characteristic, such as race or gender. Harassment based on a protected characteristic can also give rise to a discrimination claim, if the harassment is “severe or pervasive enough” to create a hostile work environment. 

Even before the COVID-19 pandemic, the number of employees working from home was skyrocketing. But now, that trend has accelerated even faster. This raises the question: can an employee suffer from a hostile work environment—while working from home?

• Harassment
• Discrimination

The coronavirus pandemic has already had a massive impact on businesses. Many companies have announced layoffs, furloughs, or unpaid leaves of absence. 

Employers aren’t prohibited from firing employees. Employment relationships are usually at-will, meaning that employees can be fired for any reason or no reason at all. Of course, there are still boundaries that apply, such as laws prohibiting discrimination and retaliation.

• COVID-19

The recent coronavirus outbreak raises a host of employment-law issues. For example, the Occupational Safety and Health Act requires employers to take measures to eliminate or reduce dangerous hazards to their employees. The Family and Medical Leave Act mandates leave for “serious health conditions,” raising questions as to whether an infected employee is legally entitled to leave. And Title VII of the Civil Rights Act prohibits discrimination based on national origin, so an employer can’t tell someone not to come to work just because he or she is from China or Italy.

• Workplace Conditions (Occupational Safety and Health)
• COVID-19

Many employers strongly prefer arbitration to litigating with their employees in court. Employers often believe—and the Supreme Court has agreed—that arbitration of employment disputes has many benefits, including potential cost savings, more limited discovery, a greater ability to keep the dispute confidential, and speedier resolutions.

• Arbitration

Can a news organization avoid a discrimination claim by arguing that it was exercising its First Amendment right to choose who writes the news?

That’s the question that the California courts have been grappling with in Stanley Wilson’s case against CNN. And that question has now been answered in Wilson’s favor. 

• Civil Litigation
• First Amendment

Under the National Labor Relations Act (NLRA), employees have a right of collective action, and employers are prohibited from interfering with that right. But these provisions can conflict with an employer’s desire and ability to regulate conduct in the workplace. 

One such conflict arises when employers conduct internal investigations. Employers may want to keep those investigations confidential, so that employees do not spread information about them through the workplace or coordinate their responses.

• Whistleblowers

As readers of this blog know, corporate executives (and regular employees) are often subject to non-competes in their employment agreements, as well as other provisions designed to ensure that if they leave their job, they will not be able to work for a competitor for some period of time.  By contrast, law firms are ethically prohibited from imposing such restrictive covenants on their attorneys.  The justification for this exceptionalism is the premise that clients have the right to choose their counsel and any restrictions on a lawyer’s right to practice could impede that choice.  (Of course, why client choice is more imperative in an attorney/client relationship than other professional relationships of trust has always been a bit vague.)

• Noncompete Agreements ‎

In our last post, we analyzed the complaint that Jones Day ex-associates Julia Sheketoff and Marc Savignac filed against the firm. Sheketoff and Savignac, a married couple, allege that the firm discriminated against them and retaliated against Mark when he complained. They focus on the firm’s parental leave policy, under which new birth mothers receive 18 weeks of paid leave but new fathers receive 10 weeks. 

Battle has now been joined in the lawsuit. Jones Day moved to dismiss, and the motion is now fully briefed with an opposition, reply, and even a proposed surreply.

• Discrimination
• Civil Litigation
• Wrongful Termination

On Tuesday, married couple Julia Sheketoff and Mark Savignac filed an attention-grabbing lawsuit against their former law firm, Jones Day, for gender discrimination and retaliation. Jones Day is one of the largest law firms in the United States, and was the subject of a lawsuit filed earlier this year by female lawyers alleging a “fraternity culture.” 
 
According to their complaint, Sheketoff and Savignac each clerked for Justice Stephen Breyer, and then joined Jones Day’s prestigious Issues & Appeals practice as associates. They eventually each received half-million-dollar salaries. But all was not well.

• Discrimination
• Civil Litigation
• Wrongful Termination