Lawffice Space - Employment Law Blog

Are Payroll Cards Illegal in Pennsylvania?

noreply@blogger.com (Philip Miles) — Wed, 19 Jun 2013 12:44:00 +0000

Are payroll cards illegal in Pennsylvania? Beats me. But we might find out soon.

A former McDonald's employee is suing the franchisee for paying her through a debit card.

Natalie Gunshannon, a single mother, 27, said she and other workers were paid through a JPMorgan Chase Payroll Card, which has a $1.50 fee for ATM withdrawals, a $10 inactivity fee after 90 days, and a 75 cent online payment fee per transaction and other fees.

According to the linked article, she is bringing the claim under the Pennsylvania Wage Payment and Collection Law (WPCL).

The WPCL does provide that "wages shall be paid in lawful money of the United States or check . . . ." 43 P.S. § 260.3. In the nearly 30 seconds I spent researching the issue for this blog post, I didn't see any further explanation.

If you pay Pennsylvania employees with these payroll cards, you should probably follow this case pretty closely.

EEOC Targets Criminal Background Checks

noreply@blogger.com (Philip Miles) — Tue, 18 Jun 2013 12:22:00 +0000

Last week, the EEOC issued a press release announcing lawsuits against two employers for using criminal background checks. The first lawsuit:

In the suit against BMW, the EEOC alleges that BMW disproportionately screened out African Americans from jobs, and that the policy is not job related and consistent with business necessity . . . . The policy is a blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the claimants' respective positions.

And, the second lawsuit:

In Illinois, the Chicago office of the EEOC filed a nationwide lawsuit based on discrimination charges filed by two rejected black applicants. That lawsuit charges that Dollar General conditions all of its job offers on criminal background checks, which results in a disparate impact against blacks.

Both lawsuits are disparate impact lawsuits, meaning that the criminal background check policies are not necessarily intended to discriminate based on race. But the policies disproportionately harm employees/applicants based on race. Employers can defend against such claims by establishing that the policy is job-related and consistent with a "business necessity."

If you'd like some guidance about how to avoid the EEOC's wrath, check out last year's enforcement guidance: Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

HT: Friend and employee benefits attorney, Mike Chittenden via email.

Image: EEOC seal. Not official use.

Employment Law SCOTUS Watch

noreply@blogger.com (Philip Miles) — Mon, 17 Jun 2013 12:45:00 +0000

We only have about two weeks left in the current Supreme Court season (or "term" as they call them). Some important employment law cases are still out there, and we should get some news as early as today:

Vance v. Ball State (SCOTUSblog page): This one was argued last November and it's not clear what is taking the Court so long. The issue is generally who is a "supervisor" for purposes of employer harassment liability.
Fisher v. University of Texas at Austin (SCOTUSblog page): The only other case argued in 2012 that has yet to be decided. This is the huge affirmative action case that's getting a ton of media attention. Technically, it's not an employment case but I take note of any decisions in which the Supreme Court addresses race discrimination.
UTSMC v. Nassar (SCOTUSblog page): Recently argued, but we're down to the end of the season so we should get a decision soon. This case will address whether Title VII retaliation claims can be "mixed motive" or instead require "but for" causation.
NLRB v. Noel Canning (SCOTUSblog page): This case hasn't even been accepted by the Supreme Court yet, but they have a conference scheduled for June 20th to discuss it. The smart money is on SCOTUS granting certiorari to decide whether President Obama's NLRB "recess appointments" were constitutional.

That's a lot of employment law goodness that should all come out within the next week or two. We could see developments as early as 10 AM this morning. Check out the newly redesigned SCOTUSblog for liveblogging at 10 AM for opinions (9:30 for orders).

UPDATE: The Supreme Court didn't address any of this today (Monday, 6/17/2013) and the next scheduled opinion release date is Thursday. In other words, from this Thursday through next Thursday we should get all of the above (that's a lot to cram into one week!).

Another Day, Another Setback for the NLRB Poster Requirement

noreply@blogger.com (Philip Miles) — Mon, 17 Jun 2013 12:28:00 +0000

Last Friday, the Fourth Circuit Court of Appeals struck down the NLRB's poster requirement in Chamber of Commerce v. NLRB (opinion here). From the Court's introduction:

We agree with the district court that the rulemaking function provided for in the NLRA, by its express terms, only empowers the Board to carry out its statutorily defined reactive roles in addressing unfair labor practice charges and conducting representation elections upon request. Indeed, there is no function or responsibility of the Board not predicated upon the filing of an unfair labor practice charge or a representation petition. We further note that Congress, despite having enacted and amended the NLRA at the same time it was enabling sister agencies to promulgate notice requirements, never granted the Board the statutory authority to do so. We therefore hold that the Board exceeded its authority in promulgating the challenged rule, and affirm.

The D.C. Circuit similarly struck down the rule last month. An interesting aspect of the Fourth Circuit decision is that two of President Obama's own appointees were on the unanimous panel.

While there is a chance the Supreme Court will take the case and side with the NLRB, I wouldn't bet on it. The NLRB poster requirement looks like it's done for awhile.

Image: Fourth Circuit seal is public domain as work of federal government. Not official use.

Black Swan Unpaid Interns Win FLSA Claim - COTW #147

noreply@blogger.com (Philip Miles) — Fri, 14 Jun 2013 01:53:00 +0000

Some unpaid interns from Black Swan sued the production company for actual wages, and guess what? They won. A couple days ago the Southern District of New York issued its opinion in Glatt v. Fox Searchlight Pictures (opinion here).

The Court broke it down into two issues:

1. Were the interns employees under the FLSA?
2. If so, did they fall under the narrow "trainee" exception?

On the first issue, the Court applied Second Circuit utilizing the "formal control" and "functional control" tests. This determination will vary from jurisdiction to jurisdiction. But, as the Court noted, "in the end, it is all about control." And that's pretty consistent no matter what court you're in.

The second issue is the particularly interesting part of this case. In determining whether the interns fell under the trainee exception the Court relied heavily on the six factors identified in a DOL fact sheet from 2010 (I blogged about this back in 2010):

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

The Court ruled that the unpaid interns were employees who did not fall under the trainee exception. Now, a Time magazine article is declaring this decision The Beginning of the End of Unpaid Internships. I don't know about that . . . but I do know that this case is generating a ton of buzz, and it's difficult for unpaid internships to be FLSA-compliant.

Lawffice Links - Snowden: Whistleblower or Criminal

noreply@blogger.com (Philip Miles) — Thu, 13 Jun 2013 11:35:00 +0000

Employment law doesn't usually entail top secret national surveillance programs, accusations of treason, and international media firestorms . . . so the least I can do is bake some Lawffice Links when it does:

THE ORDER: The top secret order that kicked off the media coverage (fun fact: the judge who signed the order, Roger Vinson, is the same Florida judge who ruled that Obamacare was unconstitutional and struck down the entire law).
TREASON: Senator Nelson accuses Edward Snowden of treason.
DEBATE: New York Times Room for Debate:Leak Case, a Whistle-Blower or a Criminal.
LEGAL RISKS: CNN Video: Legal Risks for NSA Leaker.
WHISTLEBLOWER PROTECTION: Loopholes Exclude Intelligence Contractors Like Snowden from Whistleblower Protections.

BREAKING: SCOTUS Defers to Arbitrator on Class Arbitration

noreply@blogger.com (Philip Miles) — Mon, 10 Jun 2013 14:24:00 +0000

A few minutes ago, the Supreme Court released its opinion in Oxford Health Plans, LLC v. Sutter (opinion here). I think there was some hope/fear/expectation that SCOTUS would issue a groundbreaking opinion about when contracts provide for class arbitration.

Instead, the Court essentially just said (paraphrasing): "meh, whatever the arbitrator says is fine." Or, in the actual words of Justice Kagan for a unanimous court:

In sum, Oxford chose arbitration, and it must now live with that choice. Oxford agreed with Sutter that an arbitrator should determine what their contract meant, including whether its terms approved class arbitration. The arbitrator did what the parties requested: He provided an interpretation of the contract resolving that disputed issue. His interpretation went against Oxford, maybe mistakenly so. But still, Oxford does not get to rerun the matter in a court. Under §10(a)(4), the question for a judge is not whether the arbitrator construed the parties’contract correctly, but whether he construed it at all. Because he did, and therefore did not “exceed his powers,” we cannot give Oxford the relief it wants.

Affirming the Third Circuit. Justice Alito (joined by Justice Thomas) filed a concurring opinion.

Lactation Discrimination - COTW #146

noreply@blogger.com (Philip Miles) — Fri, 07 Jun 2013 12:39:00 +0000

In EEOC v. Houston Funding II, Ltd., the Fifth Circuit held that "lactation is a related medical condition of pregnancy for purposes of the PDA (Pregnancy Discrimination Act)." In other words, lactation discrimination is illegal. The Court reversed the district court's decision (which was Case of the Week #79).

The holding is not all that shocking, but the factual background is a little unusual:

Venters told Fleming that she was breastfeeding her child and asked him to ask Cagle whether it might be possible for her to use a breast pump at work. Fleming stated that when he posed this question to Cagle, Cagle “responded with a strong ‘NO. Maybe she needs to stay home longer.’ “ On February 17, 2009, Venters called Cagle and told him her doctor had released her to return to work. Again, she mentioned she was lactating and asked whether she could use a back room to pump milk. After asking this question, Venters testified that there was a long pause, and when Cagle finally responded, he told her that they had filled her spot.

So, this sounds a little bit like an accommodation case. But it's not. The Court made clear that it's decision to allow the woman to proceed with her sex discrimination claim was not an accommodation case:

The issue here is not whether Venters was entitled to special accommodations—at the time, she was not entitled to special accommodations under Title VII—but, rather, whether Houston Funding took an adverse employment action against her, namely, discharging her, because she was lactating and expressing breast milk.

And, in case that wasn't clear enough, Judge Edith Jones issued a concurring opinion:

[T]his court held that the PDA does not mandate special accommodations to women because of pregnancy or related conditions. It follows that if Venters intended to request special facilities or down time during work to pump or “express” breast milk, she would not have a claim under Title VII or the PDA as of the date of her lawsuit. Indeed, if providing a plaintiff with special accommodation to pump breast milk at work were required, one wonders whether a plaintiff could be denied bringing her baby to the office to breastfeed during the workday.

Bottom line: lactation discrimination is unlawful, but failure to accommodate is probably not.

Obligatory reminder: Obamacare amended the FLSA to require reasonable break time (and space) for nursing mothers.

Fired for What!? - Social Media Triple Play

noreply@blogger.com (Philip Miles) — Wed, 05 Jun 2013 12:31:00 +0000

When it rains it pours. Three social media stories for you today (although the last one is not a firing . . . yet).

Unfortunately for Taco Bell (and one of its employees), this photo of an employee licking a stack of taco shells went viral. According to Taco Bell, the kid was just having a little fun with some training tacos that were never served to the public . . . but he was still fired.

This bus driver was fired for helping hungry children (at least that's his story). He posted on Facebook that a student was denied lunch because he didn't have the forty cents to buy the lunch. The bus driver offered to pay for any such child's lunch. The school claims the story never happened and that video shows the student never went through the lunch line at all. The bus driver refused to take back his post and apologize, so he was terminated (assuming he's a public employee, there may be a shot at a First Amendment claim here).
In a not-yet Fired for What!?, a professor is in hot water for tweeting that obese PhD applicants don't have the willpower to complete a dissertation. In a brilliant response, a new blog was formed . . . F*ck Yeah! Fat PhDs, featuring pictures of "fatlicious" academics.

Got a great termination story? Drop a comment or tweet #Fired4What.

In Review: PLI Employment Law Yearbook 2013

noreply@blogger.com (Philip Miles) — Tue, 04 Jun 2013 12:23:00 +0000

The fine, fine folks at the Practising Law Institute sent me a review copy of their Employment Law Yearbook 2013. I have to admit, I was skeptical at first . . . I don't ordinarily research the law by year. So why would I want a "yearbook"?

Well, the book is not just 2013 case law. Which is great news, because it makes the book a handy resource for nailing down the basics (like the prima facie elements of assorted employment law claims, for example). As a desk manual for the basics, the book does a great job.

But, if you're like me, you can recite the Burlington retaliation standard from memory, and mumble the McDonnell Douglas burden-shifting framework in your sleep. I don't say this to brag (you'd be surprised how few people are impressed by this skill), but as a setup to illustrate where this book really shines.

Sure, you're familiar with retaliation claims. But are you familiar with the Supreme Court's decision in 2011 recognizing third-party retaliation? Maybe you are familiar with that case (Thompson v. N. Am. Stainless) . . . but have you seen the analysis of such claims from the District of D.C. and the Northern District of Florida (now you're just lying!).

That's the really great thing about this book. It takes the basics, and then tacks on new developments. It not only touches on new developments, but provides detail with summaries of district and circuit court decisions from the past few years. It's a great way to get caught up in areas that you may have heard of (like third party retaliation) but probably haven't actually litigated or kept up with the subsequent cases applying the new precedent.

Weighing in at 1290 pages of actual content (excluding index, table of cases, etc.), PLI's Employment Law Yearbook covers a broad range of topics from wage and hour to OFCCP to privacy law to guarding trade secrets to the ADA to . . . well, you get the idea. It covers a lot. Overall, the book is a great resource for the basics and cutting edge employment law developments alike.

Disclaimer: I did not receive any compensation aside from a copy of the book with a simple request to review it and provide my thoughts.

"Race Raters" Inadmissible - COTW #145

noreply@blogger.com (Philip Miles) — Fri, 31 May 2013 12:35:00 +0000

This Case of the Week goes back a few months, but it's an interesting issue so I decided to drop it in here.

The EEOC filed a disparate impact lawsuit against Kaplan Higher Learning Education Corp. for its use of credit reports in background checks. To establish a disparate impact based on race, the EEOC proffered statistics - but they didn't have the actual race of each applicant. Instead, the EEOC relied on "race raters" to identify the race of each individual using his or her driver's license photos:

In order to determine the race of a particular applicant, the EEOC subpoenaed records from the Departments of Motor Vehicles (“DMVs”) from 38 states and the District of Columbia. Fourteen states and the District of Columbia provided records that identified an applicant's race. The remaining 24 states provided copies of the driver's license photos pertaining to the applicants. In order to determine the race of applicants from these states, Dr. Murphy assembled a team of five “race raters,” who were asked to review each photograph and determine whether the individual is “African–American,” “Asian,” “Hispanic,” “White,” or “Other.” Individuals considered “multi-racial” were adjudged “Other.” Dr. Murphy required that four of the five “race raters” agree (80%) in order to consider that applicant's race. In all, the “race raters” were shown 891 photographs. In 11.7% of the photographs, the “race raters” were unable to achieve an 80% consensus with regard to the applicant's race.

Equal Opportunity Employment Comm'n v. Kaplan Higher Learning Edu. Corp., 1:10 CV 2882, 2013 WL 322116 (N.D. Ohio Jan. 28, 2013) reconsideration denied, 1:10 CV 2882, 2013 WL 1891365 (N.D. Ohio May 6, 2013).

The Court granted the defendant's motions to exclude the evidence and enter summary judgment.

An interesting sidenote: discovery revealed that the EEOC itself used credit checks for 84 of its 97 positions. Per the EEOC handbook, the EEOC uses credit checks because "overdue just debts increase temptation to commit illegal or unethical acts as a means of gaining funds to meet financial obligations."

HT: My McQuaide Blasko colleague, Janine Gismondi.

Fired for What!? - Butt-Dialing Gone Bad and You Want It, You Got It!

noreply@blogger.com (Philip Miles) — Tue, 28 May 2013 18:19:00 +0000

Welcome to a two-for-one Fired for What!? double feature.

In Act One, we have a case of butt-dialing gone bad. A Papa John's employee accidentally (and unknowingly) called a customer to whom he had just delivered a pizza. The customer's voicemail picked up the employee's racist banter (listen to recording here) and inappropriate "opera" (let's just say Figaro does not start with an N). Papa John's fired the driver and his co-worker.

For Act Two, we have a case of "you want it, you go it!" An employee posted on Facebook (parental advisory - explicit lyrics coming): "I don't bite my [tongue] anymore, FUCK . . . FIRE ME . . . Make my day." You'll never guess what happened . . . he got fired! Oh, that is what you guessed? My bad. The NLRB issued this advice memorandum concluding that the employee's rant was not protected concerted activity.

For more on the NLRB's decision, check out Jon Hyman's Rolling Stones-filled post, “Fire me. … Make my day” does not equal protected concerted activity (thank god); and Eric Meyer's post, Employee posts "FIRE ME...Make my day..." on Facebook. And guess what?

Abraham Lincoln: Employment Lawyer

noreply@blogger.com (Philip Miles) — Tue, 28 May 2013 12:33:00 +0000

No, I'm not trying my hand at writing alternate history, a la Abe Lincoln: Vampire Slayer (a movie I have unsuccessfully attempted to watch twice now). No, Abraham Lincoln did in fact practice a little employment law.

I'm reading Lawyer Lincoln right now, a book about Lincoln's life as a lawyer that was published in the 1930s (and not to be confused with The Lincoln Lawyer about a guy who practices law out of his town car). He practiced a broad range of law from railroad cases to whether "fixing" the neighbor's hog constituted the tort of conversion. The book also includes a brief reference to employment law!

Thus Lincoln helped settle a leading principle of the law of contracts in a case involving only $26.75 claimed as wages by a farmhand. Eldridge v. Rowe (7 Ill. 91). Lincoln for Appellee.

I found the Court's opinion. The employee walked off of the job about four months in to an eight month contract. The employee then sought compensation for the four months on a theory of quantum meruit. The Illinois Supreme Court held:

[T]he plaintiff below had no legal right to recover for the four months' labor he had performed. He had agreed to labor on the farm of Eldridge, for the term of eight months for the sum of ninety dollars, and he has not performed his agreement; and it is no objection to say that Eldridge has received the benefit of his labor, this being a case, where, from its nature, Eldridge could not separate the products of his labor from the general concerns of his farm, and ought not, therefore, to be responsible to any extent whatever, for not doing that which was impossible.

The employee could not recover for his partial performance of the contract. Lincoln represented the employee, so I guess he lost. He did draw an opinionless dissent though.

Image: Cover of Lawyer Lincoln used in commentary on the book.

PA Judge Orders Expert Review of Facebook Page - COTW #144

noreply@blogger.com (Philip Miles) — Fri, 24 May 2013 12:35:00 +0000

Pennsylvania has had a number of Facebook discovery cases in the past couple of years. However, a recent decision out of Lancaster County took a slightly different approach.

The discovery dispute arose over Facebook photos (and video) allegedly showing a personal injury plaintiff frolicking in the snow. Per the order:

1. Within seven (7) days of the date of this order, the parties are to agree upon a neutral forensic computer expert to conduct an examination of the relevant material on Plaintiffs' computer.

2. The expert is to be given Plaintiffs' user name and password information in order to access the private portion of Plaintiffs' Facebook social networking account and to download the contents of the Facebook account to the hard drive. The expert is to copy the hard drive and isolate the data for the period January 27, 2010, through February 13, 2010.

3. For the period January 27, 2010, through February 13, 2010, the expert is to identify all photographs of snow and references to snow in any emails and any photographs of Plaintiff, Grace Perrone, engaged in any physical activity.

4. Copies of the files identified in item 3 are to be provided to counsel.

5. This discovery is to be completed within sixty (60) days of the date of this order.

6. The cost of this process including the expert's fees, is to be borne by Defendants.

In short, the Pennsylvania judge ordered third-party expert review of the contents of the Facebook page. I like the balance of allowing the opposing party to probe for relevant information, while not giving them unfettered access to the Facebook profile.

I'm a little concerned, however, about the cost. Although I guess it serves as a deterrent to avoid Facebook fishing expeditions as the discovery-seeking party (at least in this case) bears that expense.

HT to fellow Pennsylvania attorney, Dan Cummins of Tort Talk fame - Novel Facebook Discovery Order Out of Lancaster County.

Lawffice Links - New EEOC Publications Galore!

noreply@blogger.com (Philip Miles) — Thu, 23 May 2013 12:34:00 +0000

Wow, I can hardly keep up with all of these new EEOC publications. Here are the links:

Cancer: Q&A on Cancer in the Workplace and the ADA
Diabetes: Q&A on Diabetes in the Workplace and the ADA
Epilepsy: Q&A on Epilepsy in the Workplace and the ADA
Inetellectual Disabilities: Q&A on Intellectual Disabilities in the Workplace and the ADA
GINA: What You Should Know: Q&A About Genetic Information Nondiscrimination Act (GINA) and Employment
The Mental Health Provider's Role in a Client's Request for a Reasonable Accommodation at Work

In case you didn't have any plans for the three-day Memorial Day weekend . . . .

SCOTUS Grants Cert. in Sarbanes-Oxley Retaliation Case

noreply@blogger.com (Philip Miles) — Tue, 21 May 2013 20:06:00 +0000

On Monday, the Supreme Court granted certiorari (order here) in Lawson v. FMR, LLC (SCOTUSblog case page here). Per the Petition for Certiorari, the Question Presented is:

Section 806 of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A, forbids a publicly traded company, a mutual fund, or “any ... contractor [or] subcontractor ... of such company [to] ... discriminate against an employee in the terms and conditions of employment because of ” certain protected activity. (Emphasis added). The First Circuit held that under section 1514A such contractors and subcontractors, if privately-held, may retaliate against their own employees, and are prohibited only from retaliating against employees of the public companies with which they work.

The question presented is:

Is an employee of a privately-held contractor or subcontractor of a public company protected from retaliation by section 1514A?

The Sarbanes-Oxley Act generally protects "whistleblowers who disclose fraud or certain other unlawful activity to company management, to federal agencies, or to Congress." (from the Petition, citing 18 U.S.C. § 1514A).

Miles on Sexual Orientation Discrimination

noreply@blogger.com (Philip Miles) — Tue, 21 May 2013 09:20:00 +0000

My latest article is available for your consumption in the Reading Eagle Business Weekly. Check out: For employers, discrimination based on sexual orientation is a legal minefield. The takeaway: Federal and Pennsylvania employment discrimination laws don't expressly prohibit sexual orientation discrimination - but there are still plenty of legal risks in that area.

Caperton v. Massey . . . Still Going

noreply@blogger.com (Philip Miles) — Mon, 20 May 2013 12:10:00 +0000

Last week, I mentioned that I was reading The Price of Justice - the true story of Caperton v. Massey. I finished it this weekend, and was shocked by the ending.

The setup is that Hugh Caperton and his smaller coal company sued coal giant Don Blankenship and Massey Energy for allegedly driving the former out of business (by tortiously interfering with contracts and committing misrepresentation). Caperton won a $50 million jury verdict, but the West Virginia Supreme court threw it out.

However, Blankenship spent millions of dollars on campaign ads, while the case was pending before the WV Supreme Court, to get a Massey-friendly judge elected. From the later U.S. Supreme Court opinion:

Blankenship’s $3 million in contributions were more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin’s own committee. Caperton contends that Blankenship spent $1 million more than the total amount spent by the campaign committees of both candidates combined.

Amazingly, the judge (Benjamin) refused to recuse himself and was the deciding vote in the case. So, Caperton appealed to the U.S. Supreme Court arguing that his due process rights had been violated.

The Supreme Court held that due process required recusal. Happy ending for Caperton, right? Actually, the case went back to the West Virginia Supreme Court, which once again threw Caperton's case out (holding that the action had to be filed in Virginia, effectively killing it forever in West Virginia). So, Caperton filed suit in Virginia.

Now, for the truly shocking part. Caperton got his jury verdict in 2002. The Virginia Supreme Court held that Caperton could proceed with his lawsuit in Virginia . . . last month! I couldn't believe it when I reached the end of the book and the case still hadn't been resolved!

Sidenote: The book covers several other lawsuits vs. Massey, from contaminating drinking water to questionable safety practices killing miners.

Image: Book cover used in commentary on book.

Third Circuit Holds Obama Recess Appointment Unconstitutional - COTW #143

noreply@blogger.com (Philip Miles) — Fri, 17 May 2013 12:17:00 +0000

In Noel Canning v. NLRB the D.C. Circuit held that President Obama's "recess" appointments to the NLRB were unconstitutional. For a rundown of the implications of this holding, see here. I warned you that the Third Circuit was also looking at this issue also. Well guess what?

Yesterday, the Third Circuit dropped the hammer. In New Vista Nursing v. NLRB, the Third Circuit became the second federal appellate court to hold that the Constitution's recess appointments clause allows only intersession (not intrasession) recess appointments. Therefore, President Obama's NLRB "recess" appointments were unconstitutional - and the NLRB doesn't have enough members to officially operate (see New Process Steel).

If you want to read the 102-page opinion (and 55-page dissent), knock yourself out. Volokh Conspiracy's John Elwood has a nice post on the decision, including:

The majority thought context was more helpful, particularly “the Recess Appointment Clause’s specification that recess-appointed officers’ terms ‘shall expire at the End of [the Senate’s] next session.’” It reasoned, “[t]he expiration of these officers’ terms at the end of the next session implies that their appointments were made during a period between sessions,” id. at 75, and “if recess includes intrasession breaks, then we would expect the recess-appointment term to last only until the end of that session.” The majority then addressed historical practice, Id. at 87-95, reaching essentially the same conclusion as the D.C. Circuit: the absence of Founding-era intrasession recess appointments suggests the power does not extend that far.

Employers and employees could already choose to appeal NLRB decisions to the D.C. Circuit (or their "home circuit"). For parties in the Third Circuit, both routes now lead to the same place: the NLRB is powerless.

This decision also places even more pressure on the Supreme Court to take Noel Canning and decide the scope of the president's recess appointments power. I suspect a major SCOTUS ruling next year . . . .

Angelina Jolie and Employment Law

noreply@blogger.com (Philip Miles) — Wed, 15 May 2013 12:42:00 +0000

By now, you've probably already heard about the biggest news in the world for the past day or so . . . Angelina Jolie's double masectomy. Why an apparently uneventful preventive surgery on an actress is the number one story in the world is a riddle I have yet to solve. I have, however, nailed down an employment law tie-in!

You can't spell Angelina without GINA (if you rearrange some letters)! The key here is the reason Ms. Jolie had the operation:

[T]he truth is I carry a "faulty" gene, BRCA1, which sharply increases my risk of developing breast cancer and ovarian cancer. My doctors estimated that I had an 87 percent risk of breast cancer and a 50 percent risk of ovarian cancer, although the risk is different in the case of each woman. Only a fraction of breast cancers result from an inherited gene mutation. Those with a defect in BRCA1 have a 65 percent risk of getting it, on average.

Ms. Jolie may not realize it yet, but she just became the poster-child for GINA, the Genetic Information Nondiscrimination Act!

This is a great example of the reason Congress passed GINA. Genetic testing has gotten to a point where we can predict, with farely high probability, the chances of contracting certain major diseases. That is why GINA generally prohibits employers from conducting genetic testing, requesting genetic information, and discriminating on the basis of genetic information.

An unscrupulous employer may misuse such information to only hire people who are "low risk" in terms of insurance costs and availability for work. GINA outlaws that.

In a related story, the EEOC just settled its first GINA lawsuit.

Image: Public domain clip art from wpclipart.com.

What am I Reading? - Shelfari

noreply@blogger.com (Philip Miles) — Tue, 14 May 2013 12:29:00 +0000

Once upon a time, I had my Amazon Reading List on my LinkedIn Account. Sadly, LinkedIn "upgraded" and completely killed off the Reading List. And yes, I was VERY bitter . . . especially because my Reading List completely vanished (after I spent years tracking all of my reading).

Great news! Amazon acquired Shelfari, and included an option to import old LinkedIn Reading Lists. So, the answer to the title of this post is that you can check my Shelfari "shelf" at any time to see what I've read, and what I'm reading.

I'm currently reading The Price of Justice. A book that tracks Caperton v. Massey Coal from trial through SCOTUS (opinion here). Some marketing company sent it to me out of the blue. I had absolutely no interest . . . but I took it home and left it on my dining room table, assuming it would just be clutter. One evening I picked it up, and I was immediately hooked. I absolutely love it (aside from the free copy, I received no compensation . . . I just genuinely enjoyed it).

Feel free to browse my shelf. I try to mix ideological perspectives. I read Justice Scalia's book on Constitutional interpretation, and then Justice Breyer's opposing/alternate take. I also read a lot of economics ranging from Hayek (Austrian school) to Friedman (Chicago) to Marx (communist) to Thaler and Sunstein (the latter, a former Obama advisor). I find that competing perspectives provide a fuller picture.

Record-Breaking EEOC Verdict - COTW #142

noreply@blogger.com (Philip Miles) — Fri, 10 May 2013 12:21:00 +0000

Last week, the EEOC issued a press release: Jury Awards $240 Million for Long-Term Abuse of Workers with Intellectual Disabilities. Apparently, that's the biggest verdict in the agency's history.

I wish I could tell you there were some great "lessons learned" from this case, but let's look at what led to that huge dollar figure:

Specifically, the EEOC presented evidence that for years and years the owners and staffers of Henry's Turkey subjected the workers to abusive verbal and physical harassment; restricted their freedom of movement; and imposed other harsh terms and conditions of employment such as requiring them to live in deplorable and sub-standard living conditions, and failing to provide adequate medical care when needed.

Verbal abuses included frequently referring to the workers as "retarded," "dumb ass" and "stupid." Class members reported acts of physical abuse including hitting, kicking, at least one case of handcuffing, and forcing the disabled workers to carry heavy weights as punishment. The Henry's Turkey supervisors, also the workers' purported caretakers, were often dismissive of complaints of injuries or pain.

I mean, seriously, what's the lesson here? Do you really need to be told not to kick employees with intellectual disabilities and call them "retarded"?

I guess the lesson is that if you're the deplorable type of person who engages in such behavior (or their employer), know that there are repercussions for your actions.

DC Circuit Strikes Down NLRB Poster Requirement

noreply@blogger.com (Philip Miles) — Wed, 08 May 2013 12:30:00 +0000

The D.C. Circuit Court of Appeals took another shot at President Obama's NLRB yesterday in Nat'l Ass'n of Mfrs. v. NLRB (opinion here). The Court vacated the NLRB's poster requirement, primarily under s 8(c) of the NLRA.

Section 8(c) did most of the heavy lifting. It provides:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.

29 U.S.C. s 158(c). The Court essentially applied a First Amendment free speech style of analysis to the issue.

Ultimately, the Court concludes that the 8(c) right to express views without incurring an unfair labor practice charge includes a right to keep silent (framed another way, a right against compelled speech). As the NLRB's poster requirement treated failure to post as an unfair labor practice, or evidence of union animus in an unfair labor practice charge, the rule violated s 8(c).

The NLRB did have another method of enforcing the rule, which was to toll the statute of limitations. The Court held that the NLRB lacked authority to modify the statute of limitations, so that portion of the rule was vacated as well.

Could it get any worse for the NLRB's poster requirement? Well, yeah, actually it can. Although the Court's controlling (and unanimous) opinion did not reach the issue, a majority of the judges issued a concurring opinion. In it, the judges found that the NLRB would have lacked the authority to promulgate the poster requirement rule even if it had not violated s 8(c).

This may be the end of the NLRB's poster rule. They can press it in other circuits, but employers have the option to appeal NLRB rulings to their home circuit OR the D.C. Circuit. Guess where they'll be heading? The NLRB could appeal to SCOTUS . . . but this doesn't strike me as a SCOTUS-worthy case (maybe if there's a split on the issue with another circuit).

BONUS QUESTION: Since two judges, a majority of the D.C. Circuit panel, held that the NLRB lacked the authority to promulgate the rule . . . is that binding precedent in the D.C. Circuit?

Image: NLRB logo used in commentary on the NLRB. Not Official Use.

PA Supreme Court Upholds Employee Third-Party Injury Waiver

noreply@blogger.com (Philip Miles) — Tue, 07 May 2013 12:05:00 +0000

The Supreme Court of Pennsylvania (SCOPA?) recently issued its opinion in Bowman v. Sunoco, Inc. (copy here). As a condition of employment, the plaintiff-security guard signed a worker's compensation disclaimer that included a waiver of claims for injuries against the security company's customers.

Well, wouldn't you just know it . . . she slipped and fell on snow and ice while guarding a customer's refinery. She filed a worker's comp claim and received benefits. Then, she sued the customer. In discovery, the customer found the waiver and filed for judgment on the pleadings, which was granted.

On appeal, the Supreme Court affirmed. The employee had bargained away her right to bring a claim against the third-party, her employer's customer, for injuries covered by worker's compensation. Finally, if you're like me, you'll want to see the actual disclaimer:

I understand that state Workers’ Compensation statutes cover workrelated injuries that may be sustained by me. If I am injured on the job, I understand that I am required to notify my manager immediately. The manager will inform me of my state’s Workers’ Compensation law as it pertains to seeking medical treatment. This is to assure that reasonable medical treatment for an injury will be paid for by Allied Workers’ Compensation insurance.

As a result, and in consideration of Allied Security offering me employment, I hereby waive and forever release any and all rights I may have to:

-make a claim, or

-commence a lawsuit, or

-recover damages or losses

from or against any customer (and the employees of any customer) of Allied Security to which I may be assigned, arising from or related to injuries which are covered under the Workers’ Compensation statutes.

Image: Pennsylvania State Capitol Building, taken by me.

3d. Circuit: Shareholder Not "Employee" Under Title VII - COTW #141

noreply@blogger.com (Philip Miles) — Fri, 03 May 2013 12:32:00 +0000

Earlier this week, the Third Circuit issued its opinion in Mariotti v. Mariotti Building Products, Inc., holding that a shareholder was not an "employee" under Title VII.

The plaintiff was a shareholder-director in the family business. One day, he had a "spiritual awakening" that was not well received by his family members and fellow shareholders. They began to harass him about his newfound spiritualism (the opinion doesn't really go into what religious beliefs he discovered). The breaking point was Plaintiff's eulogy at Babe Mariotti's funeral that included references to the new religion (Babe was the founder of the business).

So, the shareholders fired their own family member and he filed a discrimination lawsuit. Can a shareholder file a Title VII claim?

In Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003), the Supreme Court adopted the EEOC's six-part test for determining who is an "employee":

1. Whether the organization can hire or fire the individual or set the rules and regulations of the individual‟s work

2.Whether and, if so, to what extent the organization supervises the individual‟s work

3. Whether the individual reports to someone higher in the organization

4. Whether and, if so, to what extent the individual is able to influence the organization

5. Whether the parties intended that the individual be an employee, as expressed in written agreements or contracts

6. Whether the individual shares in the profits, losses, and liabilities of the organization.

The Third Circuit applied that test here, with a focus on the element of control to conclude that Plaintiff was not an "employee" and the District Court properly dismissed his case.

This case was not just a repeat of the Supreme Court case, and the Third Circuit addressed some of the differences. For example, this was a Title VII case and Clackamas was an ADA case, and this case dealt with a non-professional corporation. Also, this case dealt with whether Plaintiff was an employee for purposes of filing a lawsuit and not whether an individual was an employee for purposes of meeting the employee-threshold to determine whether the employer was covered. Ultimately, none of these differences changed the outcome.

This opinion is likely no surprise to those of you who remember Kirleis v. Dickie, McCamey, and Chilcote (Third Circuit holding that a law firm shareholder was not an employee). However, Mariotti is a precedential opinion and Kirleis was not.