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Federal Litigator Behind Oracle Lawsuit Being Reassigned by DOL

Aug. 11, 2020, 12:59 AM

U.S. Labor Department leadership is moving to reassign its top West Coast litigator, Janet Herold, who spearheaded a series of employment discrimination lawsuits against Silicon Valley tech giants, including a pending case against Oracle Corp., Bloomberg Law has learned.

Herold, an Obama-era career appointee who serves as the department’s Regional Solicitor for San Francisco and head of branch offices in Los Angeles and Seattle, was told in a meeting late last month that Labor Secretary Eugene Scalia is transferring her from the Office of the Solicitor to DOL’s occupational safety agency where she will head the Chicago office, three sources briefed on the matter said. The sources spoke on condition of anonymity.

DOL’s chief solicitor, Trump appointee Kate O’Scannlain, informed Herold of the involuntary transfer late last month. Earlier this year, Herold wrote a memo to DOL leadership to complain that Scalia, in her view, was intervening in DOL’s high-profile pay-bias lawsuit against Oracle by attempting to reach a low-ball settlement, the sources said. She’s also clashed with political leadership at DOL headquarters over the last three years, current and former administration officials told Bloomberg Law.

The transfer has yet to be finalized. Herold, who has hired civil rights lawyer Debra Katz, plans to file a complaint with the U.S. Office of Special Counsel alleging retaliation against a whistleblower if the department follows its verbal order with a formal notice of involuntary reassignment, the sources said.

Herold has gained a reputation since her appointment in 2012 as an aggressive fighter for worker justice who’s willing to take cases to trial that other DOL litigators would’ve been more likely to settle. Her reassignment would remove one of the department’s most consequential senior litigators from a region that’s ideally placed to pursue employment discrimination claims against major tech companies. But the change also would place her in a leadership role at the Occupational Safety and Health Administration, a federal agency on the front lines of pandemic response.

A DOL spokesman declined to comment on the Oracle case or the ongoing personnel matter, but said that Scalia “has never had any communications with Oracle or its attorneys concerning the Department’s litigation against the company, or any settlement discussions.” Katz and an associate didn’t immediately provide a response when reached for comment.

The department’s case against Oracle, filed in the final days of the Obama administration, alleges the technology giant underpaid female and minority employees and owes them $400 million. Herold’s role in overseeing the long-running litigation, which awaits an initial ruling that could come any day now, put her in the crosshairs of two of President Donald Trump‘s corporate allies—Oracle co-founder Larry Ellison, a billionaire who has raised money for the president, and Oracle CEO Safra Catz, who was on Trump’s transition team.

The DOL spokesman’s statement noted the department “continues to defend” the case it brought against Oracle as well as one the company filed against DOL in response.

Herold’s litigation record, which has included workplace discrimination cases against Alphabet Inc.‘s Google and Palantir, has been praised by worker advocates and civil rights groups but drawn heavy criticism from federal contractors and the business community at large.

Forcing the reassignment of a civil servant in the senior executive service, the highest ranks of the federal government, is an uncommon action, but it’s within an executive-branch agency’s rights to take such a step if the person is given at least 60 days’ notice.

Herold also has objected to being forced to move her family across the country during the coronavirus pandemic, the sources said. She was told the role of OSHA’s Midwest region head couldn’t be handled remotely, two of the sources said.

High-Profile Cases

Herold now leads a team of attorneys that has pursued high-profile, multimillion-dollar pay-bias cases against several heavyweight federal contractors—including Cisco Systems Inc. and Microsoft Corp. as well as Oracle and Google—following investigations by DOL’s Office of Federal Contract Compliance Programs, which polices workplace civil rights laws among federal contractors.

As the Oracle case has dragged on during the Trump administration, Herold’s litigation tactics—relying on statistical audits of company payroll data—spurred a prolonged campaign of right-leaning op-eds, notably from The Wall Street Journal editorial board, calling on Scalia to drop the lawsuit.

To the business community and right-leaning advocates, the Oracle case symbolizes what they view as overzealous Obama-era enforcement.

“In the past several years, the Pacific regional solicitor, led by Janet Herold, has staked out particularly assertive positions that are often more aggressive than I’ve seen from other OFCCP regions and are often at odds with the governing case law,” said Mickey Silberman, an attorney who represents federal contractors in DOL enforcement actions.

But to Herold’s supporters, the Oracle case is an important step in addressing the rampant racial and gender pay inequities that have plagued Silicon Valley.

“She’s a very talented lawyer and very committed to the mission of OFCCP,” said Patricia Shiu, the Obama-era head of the contractor enforcement agency.

Herold arrived at the department after a career fighting for workers’ rights, most recently as an associate general counsel for a decade at the Service Employees International Union. She previously worked as a plaintiff attorney representing workers in class action suits that accused employers of workplace exploitation and wage theft, according to her biography on DOL’s website.

To contact the reporters on this story: Ben Penn in Washington at bpenn@bloomberglaw.com; Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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