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Lawyer Fired Amid Oracle Pay Case Reinstated by Biden DOL (1)

Feb. 9, 2021, 9:26 PM; Updated: Feb. 9, 2021, 11:20 PM

The U.S. Labor Department has reinstated Janet Herold as its Western region’s chief legal officer, following her termination in the final weeks of the Trump administration, according to an internal email obtained by Bloomberg Law.

Herold’s return as regional solicitor comes after she filed a whistleblower complaint against Trump Labor Secretary Eugene Scalia, claiming he had reassigned her to a non-legal post in retaliation for her opposing his alleged involvement in a high-profile pay discrimination lawsuit against Oracle Corp.

When she refused the involuntary transfer to a Midwest occupational safety office, Scalia fired her effective Jan. 11.

Herold, a career civil servant, developed a reputation across her eight-state region as an aggressive fighter for workers’ rights, including in wage-and-hour and pay discrimination cases, often to the displeasure of management attorneys.

Her return to a position with immense litigation authority is the latest signal that the new administration intends to return to the Obama-era enforcement regime on matters such as misclassification of employees as independent contractors and federal contractor equal pay and hiring practices.

Herold’s prosecution of Oracle, accusing the tech giant of owing female and minority employees some $400 million, placed her at the center of a prolonged and politically fraught court battle. The Trump administration opted not to appeal an administrative law judge’s finding that DOL failed to prove Oracle systematically discriminated against workers at its California headquarters.

The department’s top congressional liaison under Trump in a December letter to a Democratic lawmaker called Herold’s whistleblower claims “meritless.”

“Ms. Herold’s retaliation allegations rest on erroneous speculation regarding matters she is not in a position to know,” the Trump DOL official, Joe Wheeler, wrote.

But Herold defenders criticized Scalia, a former corporate attorney, for playing a role in litigation against a company whose leaders are closely aligned with former President Donald Trump. Herold alleged Scalia had intervened to facilitate a lenient settlement offer to Oracle.

“The Department has full confidence in Janet, and SOL will continue to benefit from her talent, leadership, energy and litigation skills,” wrote deputy Solicitor of Labor Elena Goldstein in a message to employees Tuesday.

“This immediate reinstatement is a clear vindication of both Ms. Herold’s outstanding work for the Department and the validity of the concerns that spurred her to raise her voice and blow the whistle,” said Alexis Ronickher, a partner with Katz, Marshall and Banks, who represented Herold in her complaint.

OSC Investigation

Following Herold’s August complaint, the U.S. Office of Special Counsel had been investigating whether the move to reassign her violated federal service law.

The independent OSC previously requested that Scalia allow for more time for their investigation. OSC asked DOL to delay until shortly after Inauguration Day the deadline by which Herold had to choose between accepting the reassignment or face termination.

The agency instead gave Herold a 10-day extension until Dec. 7 to decide.

But Tuesday, under a new administration, a DOL spokesman said in a statement: “The Department has rescinded the directed reassignment and removal and reinstated Ms. Janet Herold as the Regional Solicitor for Region IX. It is our policy not to comment further on personnel matters.”

“I am pleased to be reinstated and am eager to continue my work at the Department of Labor fighting and standing up for workers,” Herold said Tuesday in a statement of her own.

Attempts to reach Scalia and other former DOL leaders involved in Herold’s removal weren’t immediately successful.

(Updated with additional reporting throughout.)

To contact the reporter on this story: Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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