Our Civil Rights & Employment team is pleased to highlight news and expert analysis from the past few months.
On April 1, 2022, President Joe Biden announced his nomination of Cohen Milstein’s Kalpana Kotagal as a commissioner on the Equal Employment Opportunity Commission.
- Kalpana Kotagal is a partner in the firm’s Civil Rights & Employment practice, and co-chair of the firm’s Hiring and Diversity Committee. She co-authored the seminal legal template the “Inclusion Rider.” Kotagal is a diversity, equity, and inclusion expert, and represents disenfranchised people in employment and civil rights litigation involving issues related to Title VII, the Equal Pay Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and the Fair Labor Standards Act. The daughter of immigrants from India, Kotagal is one of two Indian Americans to be nominated to a key position in the Biden Administration. Her nomination is contingent on confirmation by the Senate.
Joseph M. Sellers, co-chair of our Civil Rights & Employment practice talked extensively to the press about Kotagal as a lawyer, a colleague, and the significance of her appointment to the EEOC, if confirmed. Read Law360’s “3 Highlights from EEOC Pick Kalpana Kotagal's Track Record.”
Expert Analysis & Commentary
On April 21, 2022, Law360 Employment Authority published, “To Close Pay Gaps, Laws Must Shift Burden to Employers,” authored by Christine E. Webber, co-chair of our Civil Rights & Employment practice, and Rebecca A. Ojserkis, who recently joined the firm as an associate.
- This article examines how state laws around the country are helping to shift the burden of closing gender-based and other pay gaps to employers by providing employees with more information, while protecting employee salary history from discovery by the employer.
On April 28, 2022, Law360 Employment Authority published “How Remote Work May Change W&H Group Actions.” Christine E. Webber was interviewed about the novel, pandemic-inspired dynamic where many employees now work remotely, colliding with a new line of authority following Bristol Myers Squibb, which permits employers to make more jurisdictional challenges to who may be included within the scope of a single class or collective action. While employers will be quick to cite Bristol Myers to challenge a court’s jurisdiction over individuals working remotely in a different state, we have tackled similar challenges.
- “People working remotely who still have a connection to a particular office have a pretty good argument that there's still jurisdiction over their [Fair Labor Standards Act] violations," Webber said. Webber also noted that whatever arguments employers may have under the FLSA collective action opt-in mechanism, workers had options, and even stronger arguments when cases are brought as Rule 23 class actions. Nor is having employees divided among many separate (home) workplaces a bar to class or collective certification, an issue Webber has faced in the past, representing homecare nurses. “You can still show they're subject to the same terms and conditions, same work rules, same policies and practices and same job duties, etc., such that a class action is appropriate," she said.
Also in appreciation of April being Pay Equity Month, on April 28, 2022, Christine E. Webber and Anita F. Hill, formerly an of counsel at the firm, spoke at AnitaB.org’s Elevating Conversations: A Series for Women & Non-Binary Technologists.
- The program, “Advancing Women’s Economic Security Through Pay Equity,” focused on legal resources and actions for women in the tech sector to take in order to address pay discrimination. It also addressed how some states are enacting pay transparency protections for workers, the impact of pay transparency protocols on the retention of female talent, transformative approaches to organizational change, and much more. Materials distributed at AnitaB.org’s Elevating Conversations:
- The Cohen Milstein Pay Equity Tip Sheet
- Opinion - Anita Hill - Class Actions Could Fight Discrimination in Tech - The New York Times
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Click through the link to access a PDF of Civil Rights & Employment News & Expert Analysis - May 3, 2022.