Lawffice Space

Cambria County Courthouse Added to Pennsylvania Courthouses Photo Album

noreply@blogger.com (Philip Miles) — Fri, 30 Jul 2010 22:03:00 +0000

I argued an objection in Cambria County Court of Common Pleas in Ebensburg, Pennsylvania on Monday, so I grabbed some pictures for the Pennsylvania Courthouses Photo Album!

It's yet another beautiful PA Courthouse. The inside is just as stunning with stained glass ceilings and "domes" in the courtrooms. It actually has this really cool amplification effect, where your voice sounds louder when you stand at the podium. It also features "stadium seating" (kind of) so the back seats are higher than the front seats, and the lawyers are sort of in a pit (I'm probably overstating the height differential here).

Click here to view the photo album on Picasa.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

The Right to Photograph Public Places

noreply@blogger.com (Philip Miles) — Wed, 28 Jul 2010 21:46:00 +0000

OK, technically this is not an employment law post. But given my Pennsylvania Courthouses Photo Album, it's obviously an issue of some interest to me and possibly my readers.

The Washington Post ran a story this week titled Freedom of photography: Police, security often clamp down despite public right. The article explains that:

Courts have long ruled that the First Amendment protects the right of citizens to take photographs in public places. Even after the terrorist attacks of Sept. 11, 2001, law enforcement agencies have reiterated that right in official policies.

Apparently, some people have had unpleasant experiences involving security and photographing government buildings.

As I explained in a previous post, I had my own "run in" with security while photographing the federal court in Williamsport, PA. As I stated at the time, they were courteous and professional at all times (as was I, I might add). A door guard (I don't know which agency employs them) came outside and asked me why I was taking photos of the courthouse. I explained that I was an attorney and that I take pictures of the courthouses I go to for a photo album (and that I actually had a hearing at the state court down the street that day). He asked for ID which I gave him and then he asked if I would speak with an FBI agent. I said that would be no problem and we went inside and waited for the FBI guy.

The FBI agent came down and was likewise polite and friendly. I again explained why I was taking photographs and he said that was fine. He explained that he liked to follow up with people who appeared to take an "unusual interest" in the building. Despite taking some offense to his labelling of my hobby as an "unusual interest" (just kidding), I explained that I post the pictures on my blog. He said that was fine and told me to have a nice day.

At no point did anyone ask to see the photos or make any attempt to delete them. As I said before, a cordial interaction at all times. My First Amendment rights remained intact and they vigilantly performed their security duties.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

DOL Issues Fact Sheet on Break Time for Nursing Mothers

noreply@blogger.com (Philip Miles) — Tue, 27 Jul 2010 17:37:00 +0000

Lawffice Space readers may recall a March 2010 post in which I detailed numerous Health Care Bill Easter Eggs. One provision tucked away in the new health care law provides for "reasonable break time for nursing mothers." Now, the Department of Labor (DOL) has issued guidance in the form of Fact Sheet #73: Break Time for Nursing Mothers under the FLSA.

The bottom line is that employers need to provide break time for nursing mothers to express milk as frequently as needed. Employers must also provide space (bathrooms do not count) that is available to the mother when needed and "shielded from view, and free from any intrusion from co-workers and the public."

It is also important to note what the new law does not do and who is not covered. The new law does not apply to employees who are exempt from the overtime pay requirements of the Fair Labor Standards Act (FLSA). It does not apply to employers with more than 50 employees but only "if compliance with the provision would impose an undue hardship." And, employers are not obligated to compensate nursing mothers for this break time (unless the employer ordinarily compensates employees for break time).

For additional coverage on this topic see:
- Ohio Employer's Law Blog
- Connecticut Employment Law Blog

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

20th Anniversary of the ADA

noreply@blogger.com (Philip Miles) — Mon, 26 Jul 2010 19:09:00 +0000

On this day, exactly twenty years ago, President George H.W. Bush signed into law the Americans with Disabilities Act ("ADA"). At the time, President Bush offered these words:

I know there may have been concerns that the ADA may be too vague or too costly, or may lead endlessly to litigation. But I want to reassure you right now that my administration and the United States Congress have carefully crafted this Act. We've all been determined to ensure that it gives flexibility, particularly in terms of the timetable of implementation; and we've been committed to containing the costs that may be incurred.... Let the shameful wall of exclusion finally come tumbling down.

As CNN informs us, the ADA debate rages on, even after 20 years. One thing I find amusing about the article is its use of "internet chat board sampling" as the basis for its main point.

More than 18 years after the original ADA, President George W. Bush signed into law the ADA Amendments Act (ADAAA). Courts have generally held that the ADAAA is not retroactive. As a result, there has been some delay in the publication of actual case law addressing new ADAAA issues. Rest assured though, it's starting to emerge and will work its way into the mainstream soon enough.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

House Rules: Sex, Cocaine, and Strip Clubs

noreply@blogger.com (Philip Miles) — Thu, 22 Jul 2010 02:02:00 +0000

Prepare to have all of your preconceived notions about Hollywood... completely reinforced! Yesterday, a former assistant on the set of the show House filed a Complaint in a Los Angeles Court (full Complaint here). The Complaint includes numerous allegations of debauchery on the set which the plaintiff claims amount to discrimination, hostile work environment, and other related claims.

One particularly colorful paragraph alleges that:

Plaintiff was harassed and disparaged . . . based on his refusal to go along with [his supervisors'] degenerate conduct, visits to strip bars, participation in getting drunk, stoned or intoxicated on cocaine, to participate in sexual conduct at the trailer, and other dangerous conduct.

The plaintiff also alleges his supervisors were drinking Tequila and getting in some target practice with throwing knives on set. And, of course, derogatory name-calling, sexual escapades on the set with co-workers, and "frequently talking about Sadism & Masochism."

In case you were worried, the Complaint also alleges that House was renewed for a seventh season. Although it sounds like the real action is taking place behind the scenes!

Notes: Complaint provided by TMZ (in case the giant 9-line high x entire page-width "TMZ" watermark wasn't a giveaway). And these are just allegations in a complaint. There has been no finding of liability or other confirmation of the allegations at this time.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Abortion Protection in the Third Circuit

noreply@blogger.com (Philip Miles) — Wed, 21 Jul 2010 01:22:00 +0000

Earlier this year, I wrote a post reminding readers of a Pennsylvania state employment law addressing abortion. Now, a reminder about abortion and federal law. It's pretty straightforward, actually.

Title VII prohibits discrimination on the basis of sex. The Pregnancy Discrimination Act amended Title VII to prohibit discrimination "on the basis of pregnancy, childbirth, or related medical conditions." 42 U.S.C.A. § 2000e. In Doe v. C.A.R.S.*, the Third Circuit held that:

Clearly, the plain language of the statute, together with the legislative history and the EEOC guidelines, support a conclusion that an employer may not discriminate against a woman employee because she has exercised her right to have an abortion.

Like I said, straightforward. There is one little twist in pregnancy discrimination cases and that's in the first element of a prima facie case (in bold):

she is or was pregnant and that her employer knew she was pregnant;
she was qualified for her job;
she suffered an adverse employment decision; and
some nexus between her pregnancy and the adverse employment action

One final note on the case, the Third Circuit upheld the lower court's decision to seal the case and allow the plaintiff to use a pseudonym, "Jane Doe."

* Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 364 (3d Cir. 2008) order clarified, 543 F.3d 178 (3d Cir. 2008) and cert. denied, 129 S. Ct. 576, 172 L. Ed. 2d 432 (U.S. 2008).

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Law Firm Shareholder Not an "Employee" in 3rd Circuit

noreply@blogger.com (Philip Miles) — Fri, 16 Jul 2010 13:59:00 +0000

Yesterday, the Third Circuit held that a shareholder (or partner) in a law firm is an employer, not an employee. Kirleis v. Dickie, McCamey, and Chilcote, No. 09-4498 (July 15, 2010 3d Cir.). Why does this matter? As an employer, she is "precluded from bringing claims under the employment anti-discrimination laws." At issue in this case: Title VII, Equal Pay Act, and PHRA.

In an extremely brief analysis, the Third Circuit applied the six factors for determining whether a shareholder is an employer or employee from the U.S. Supreme Court:

(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; [and]
(6) whether the individual shares in the profits, losses, and liabilities of the organization.

Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 449-50 (2003).

If you're curious which facts were most compelling to the Third Circuit:

As a Class A Shareholder-Director of DMC, Kirleis has the ability to participate in DMC's governance, the right not to be terminated without a 3/4 vote of the Board of Directors for cause, and the entitlement to a percentage of DMC's profits, losses, and liabilities.

The Third Circuit affirmed the District Court's grant of summary judgment in favor of the law firm.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Clearfield County Added to Pennsylvania Courthouses Photo Album

noreply@blogger.com (Philip Miles) — Wed, 14 Jul 2010 03:02:00 +0000

I did not go to the Clearfield County Court of Common Pleas today... but I was right across the street. So I grabbed some pictures for the Pennsylvania Courthouses Photo Album!

It's another beautiful PA Courthouse, this time from 1860. They have the Ten Commandments on the front steps. I will also note that I ate at a cafe around the corner that served "Freedom Fries."

Click here to view the photo album on Picasa.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Medical Records Law Seminar on September 23, 2010

noreply@blogger.com (Philip Miles) — Fri, 09 Jul 2010 14:59:00 +0000

On September 23, 2010, I will be speaking at a seminar on Medical Records Law in Altoona, PA. Specifically, I will be speaking on:

HIPAA

What Is It?
Prohibitions on Use and Disclosure
Patient Rights
Business Associates
Preemption and Exceptions
What's Not Covered Mental Health, HIV, Others?
Everyday Application

Amendment and Correction of Records
Requests From Attorneys
Requests From Workers' Compensation Carriers
Requests From Employers
Law Enforcement Requests
Disclosures Without Authorization

My McQuaide Blasko colleague, and member of the Health Law and Litigation practice groups, Jon Stepanian, will also be speaking. Jon recently launched a health law and policy blog, Defense of Medicine, featuring contributions from some other McQuaide Blasko Health Law and Litigation folks.

I'll ~~steal~~ reuse some language from his announcement of this event:

This will be a great event to network with other professionals in the area and an opportunity to learn a few points related to developments in the law affecting medical records. You can learn more about the seminar here, including the other faculty members and agenda. CLE credit is available for attorneys and other credits are available through the American Health Information Management Association, the Institute of Certified Records Managers, the National Association of Long Term Care Administrator Boards, and other professional associations as noted on the seminar information page.

We hope to see you there!

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

The Fictional SCOTUS Standard 5-4 Split

noreply@blogger.com (Philip Miles) — Thu, 08 Jul 2010 15:20:00 +0000

I was reading an article today (McCain's op-ed on Kagan, if you're interested) when I came across an interesting user comment from "obtusegoose":

We all know that in 95% of the cases, the court is split down the middle 5-4 or 4-5.

One comment on an op-ed is hardly a big deal, but I get the impression that this is a common misconception. Or in his or her words "we all know" it.

Just one problem: It's wrong. Really wrong. SCOTUSblog provides us with a great stat-pack on Supreme Court decisions. As page 4 indicates the breakdown for OT09 (aka "this year") is as follows:

9-0 - 47%
8-1 - 9%
7-2 - 15%
6-3 - 10%
5-4 - 19%

Fewer than 1 in 5 Supreme Court decisions was a 5-4 split this term. And even that's misleading. For example, McDonald v. City of Chicago counts as a 5-4 but it was actually a 4-1-4 with Justice Thomas applying a different legal theory (Privileges or Immunities) than the others (Due Process). It also counts two 5-3 decisions because of the author's belief that they "would have split that way."

Meanwhile, nearly half of the decisions were unanimous! In fact, looking back at all of the years on that page (OT06, 07, and 08) - there were more unanimous decisions than 5-4 splits every year! Sure, there are big issues that we can accurately predict will come down 5-4, but the truth of the matter is that those cases are in the minority.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

New Process Steel - Now What?

noreply@blogger.com (Philip Miles) — Wed, 07 Jul 2010 18:39:00 +0000

In mid-June, the Supreme Court issued its opinion in New Process Steel v. NLRB, invalidating nearly 600 NLRB decisions. To find out the immediate impact and the NLRB's plan for the future, check out my latest entry on ELinfonet: The Post-New Process Steel World - What Happens Now?

Previous Coverage of New Process Steel on Lawffice Space: NLRB Already Here? Returns? In the Distant Future?, 2-Member NLRB Hits SCOTUS, and New Regime - SCOTUS, EEOC, NLRB.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Happy Independence Day!

noreply@blogger.com (Philip Miles) — Sun, 04 Jul 2010 15:49:00 +0000

On July 4th we celebrate our Independence Day. And everyone knows that's because the Declaration of Independence was signed on July 4, 1776... except it wasn't. Yes, it was ratified on July 4th, but as the National Archives explains:

[O]n August 2, the journal of the Continental Congress records that "The declaration of independence being engrossed and compared at the table was signed." One of the most widely held misconceptions about the Declaration is that it was signed on July 4, 1776, by all the delegates in attendance.

But July 4th is still the official holiday per 5 U.S.C. § 6103 and remains "Independence Day, July 4."

Happy Independence Day!

See Also:

Last year's July 4 entry: America's First Employment Law

And some photos of the historic sites associated with the Declaration of Independence from my Philadelphia Field Trip last November.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Employee's Fetus was Creating a Negative Energy Field in the Work Place

noreply@blogger.com (Philip Miles) — Fri, 02 Jul 2010 00:26:00 +0000

If you read only one Complaint this year, please make it the one that kicked off Harms v. Hearthstone Homes, Inc. In this bizarre lawsuit, the Plaintiff alleges she was fired in part because her "fetus was creating a negative energy field." The suit alleges religion- and pregnancy-based discrimination under Title VII and violations of Nebraska state law.

When the Plaintiff told the Hearthstone CEO of her pregnancy, he allegedly

responded by telling the plaintiff to be cautious because "babies can remember things while in the womb", and that [the CEO's] mother had a sexual affair with another man while she was pregnant with him and that he could still remember the trauma.

I think I'll remember the trauma of just reading that for awhile.

The Plaintiff also recounts a disturbing meeting in which the CEO and two other managers discussed their "intuition" about her pregnancy. One manager "saw her fetus as two magnets on opposite ends repelling one another, and [another] described her pregnancy as a 'miss'." Apparently, "[t]his meeting was very upsetting to the plaintiff." No kidding!

The discovery for this case should be fascinating. I'll try to keep an eye on this one. After all, I would love to read a court's analysis of whether a "negative force field" is a legitimate nondiscriminatory reason!

HT to Jon Hyman via Twitter who linked to a story on On Point News which provided the link to the Complaint.

Image: The Spirit of Halloween Lives On as a Dead Star Creates Celestial Havoc - Public Domain, created by NASA.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Third Party or Associational Retaliation

noreply@blogger.com (Philip Miles) — Thu, 01 Jul 2010 01:18:00 +0000

Yesterday, the Supreme Court granted certiorari, agreeing to hear Thompson v. North American Stainless on appeal from the Sixth Circuit en banc. Lawffice Space readers may remember my analysis of this case in Fire the Fiancé - Third Party Retaliation Claims.

The Petition for Certiorari (via SCOTUSblog) lists the question presented to the Supreme Court as:

Section 704(a) of Title VII forbids an employer from retaliating against an employee because he or she engaged in certain protected activity. The questions presented are:

(1) Does section 704(a) forbid an employer from retaliating for such activity by inflicting reprisals on a third party, such as a spouse, family member or fiancé, closely associated with the employee who engaged in such protected activity?

(2) If so, may that prohibition be enforced in a civil action brought by the third party victim?

For Third Circuit (binding in Pennsylvania federal courts) analysis of this issue, see Fogleman v. Mercy Hospital.

In Fogleman, the Court addressed ADEA, ADA, and PHRA retaliation claims brought by the son of a man who filed an age and disability discrimination lawsuit. Son and father worked for the same employer which fired the son after the father's claims. The Court held that:

[T]he District Court was correct to reject as a matter of law [son's] third-party retaliation claims brought under the ADEA, the PHRA, and the first anti-retaliation provision of the ADA, 42 U.S.C. § 12203(a).

Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 570 (3d Cir. 2002). However, the Court also held that "[Plaintiff] may assert his third-party retaliation claim under this section (the 'second anti-retaliation provision' 42 U.S.C. § 12203(b)) of the ADA."

And now, it appears the Supreme Court will weigh in on associational retaliation.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

McDonald v. Chicago - SCOTUS, Guns, GMU and Employers

noreply@blogger.com (Philip Miles) — Mon, 28 Jun 2010 23:53:00 +0000

It was a big day at the Supreme Court today. It will take a few entries for me to work through everything I'd like to address, but I'll start with this post and McDonald v. Chicago. The Supreme Court held that the Second Amendment is incorporated through the Due Process Clause of the Fourteenth Amendment. In other words, the Second Amendment applies to state and local governments.

What's that got to do with me and/or employment law? Glad you asked...

First, on page 2 footnote 2 of Justice Stevens' dissent (p. 124 of the .pdf), he cites the George Mason University Civil Rights Law Journal! Once upon a time, I was the Managing Editor of this fine publication. A Supreme Court citation is a big deal for GMU and the Journal.
Second, it clears one of the hurdles on the path to establishing Second Amendment Unemployment Compensation.
Third, the case was not the "employment law blockbuster" that some had hoped for. The theory was that the Supreme Court would protect a right to bear arms through the privileges or immunities clause thus bringing that forgotten clause back from the dead to provide all kinds of new (sleeping?) rights. Only Justice Thomas embraced this theory and he only addressed the right to bear arms.

Random sidenote: Justice Scalia references Justice Stevens by name in every single paragraph of his concurring opinion save one. That one paragraph continues to discuss "he" who is clearly still Justice Stevens.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Delegation Provisions in Arbitration Agreements

noreply@blogger.com (Philip Miles) — Mon, 28 Jun 2010 01:47:00 +0000

Last week, in the Lawffice Space entry SCOTUS Addresses Arbitrability Determination, I blogged about that day's Supreme Court decision in Rent-A-Center v. Jackson. For employers, the case should highlight the importance of delegation provisions. The Supreme Court defined a delegation provision as "an agreement to arbitrate threshold issues concerning the arbitration agreement."

Arbitration agreements, like any contract, will vary based on the individual circumstances involved in making the agreement. That said, it may be useful to read the delegation provision at issue in Rent-A-Center (found in-full in the Petitioner's Brief):

The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to any claim that all or any part of this Agreement is void or voidable.

In Rent-A-Center, the Supreme Court held that delegation provisions are enforceable and employers may compel arbitration of gateway issues under them (unless a party specifically challenges the delegation provision in District Court, then the Court decides).

With that in mind, employers may wish to decide if they want to delegate gateway issues to an arbitrator. If so, employers may wish to check their arbitration agreements to make sure they include a delegation provision.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

FMLA for Same Sex Parents

noreply@blogger.com (Philip Miles) — Tue, 22 Jun 2010 23:54:00 +0000

Big news on the Family and Medical Leave Act (FMLA) front today. As explained by a Department of Labor (DoL) press release:

[A]n employee who intends to share in the parenting of a child with his or her same sex partner will be able to exercise the right to FMLA leave to bond with that child.

Same sex partners may also be entitled to FMLA leave to care for a child with a serious health condition.

The DoL accomplished this feat through Administrator's Interpretation No. 2010-3. The FMLA defines "son or daughter" to include "a child of a person standing in loco parentis." The DoL's analysis concluded:

Based upon a thorough examination of the relevant factors, it is the Administrator’s interpretation that either day-to-day care or financial support may establish an in loco parentis relationship where the employee intends to assume the responsibilities of a parent with regard to a child.

And how does this affect homosexual employees? Well, for example:

[A]n employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.

Be careful employers, it's not just for same sex partners! The interpretation specifically contemplates grandparents and aunts, but the bottom line is that "In all cases, whether an employee stands in loco parentis to a child will depend on the particular facts (emphasis added)."

It might be time to dust off that FMLA policy to make sure you've got in loco parentis covered.

See also, Jon Hyman on Ohio Employer's Law Blog - DOL permits FMLA leave for gay parents (and others too)

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

SCOTUS Addresses Arbitrability Determination

noreply@blogger.com (Philip Miles) — Mon, 21 Jun 2010 14:46:00 +0000

The Supreme Court issued a somewhat complicated one today, but I will do my best to simplify its holding. The case is Rent-A-Center v. Jackson (opinion .pdf). The setup:

Employer and employee enter into an arbitration agreement that provides that an arbitrator (not a federal district court) will decide the enforceability of the agreement.
Dispute arises - employee alleges employment-discrimination and files a claim in federal district court.
Employer files a motion to compel arbitration under the agreement.
Employee says the agreement is "clearly unenforceable in that it is unconscionable."

And so arises the question: Who decides the employee's argument? Is the issue of unenforceability due to unconscionability properly before the district court? Or is that for the arbitrator?

Without boring you with the gory Federal Arbitration Act (FAA) details, let's cut to the holding. It's a two-parter with a subtle distinction:

If a party challenges the validity . . . of the precise agreement to arbitrate at issue, the federal court must consider the challenge before ordering compliance with that agreement.

Example: If the clause mandating that enforceability of the agreement be determined by an arbitrator was itself entered into via fraud in the inducement - then the Court decides. However,

if a party challenges the enforceability of the agreement as a whole, the challenge is for the arbitrator.

Get it? Challenge to the enforceability of the agreement to arbitrate enforceability -> Court. Challenge to agreement as a whole -> arbitrator.

For previous Lawffice Space coverage of this case, see: Arbitrability of Arbitrability Determination Under Arbitration Act Hits SCOTUS, and Arbitration Agreement Unconscionability Determination Hits SCOTUS.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Quon - Scalia's Warning for Employers

noreply@blogger.com (Philip Miles) — Sun, 20 Jun 2010 23:49:00 +0000

Unless you've been living in a cave (a cave that doesn't have access to Lawffice Space), you already know that the Supreme Court decided City of Ontario v. Quon last week. The Court found a public employer's search of its employee's text messages on an employer-issued pager was Constitutional under the circumstances. The search was A-OK because it was for a "legitimate work-related purpose" and not excessive in scope.

But in a concurring opinion, Justice Antonin Scalia provides a helpful warning to employers. Call it part of his Nino Cares program. He's worried that litigants will use some excess commentary (dicta as the insiders call it) from the majority opinion as a,

"basis for bombarding lower courts with arguments about employer policies, how they were communicated, and whether they were authorized, as well as the latest trends in employees’ use of electronic media."

In other words, employers should assess:

Policies impacting employee privacy;
How those policies are communicated to the employees (in writing, with an employee-signed acknowledgment form wouldn't hurt);
Authorization for supervisors to essentially "overrule" written policies (supervisors should know the policies and conduct business in accordance with them - "Going Rogue" may sell a bajillion copies of books, but it's not something that helps employers enforce written policies); and
Keep up with emerging technologies (think: cell phones, gadgets, social media, etc.) in terms of awareness and current policies.

It's not every day employers get free advice from Justice Scalia, employers may wish to heed his warning.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Text Message Search and 2-Member NLRB Results Today

noreply@blogger.com (Philip Miles) — Thu, 17 Jun 2010 15:13:00 +0000

The Supreme Court issued not one but two employment law opinions today.

Ontario v. Quon
First, the Court issued an opinon in City of Ontario v. Quon (.pdf). The Court held that a government employer's search of an employee's text messages was reasonable under the circumstances. The text messages were on an employer-issued pager and the employer's policy explicitly told employees that they had no expectation of privacy. The search did not violate the Fourth Amendment because it was for a "legitimate work-related purpose" (determining whether the department needed to increase the character limit on its service plan) and not excessive in scope.

Important to note: "The Court does not resolve the parties’ disagreement over Quon’s privacy expectation." Ummm, that was the most interesting part! Oh well, I suppose caution is a virtue in the Court (sometimes).

Previous coverage on Lawffice Space: Text Message Privacy Hits SCOTUS, and Text Privacy at SCOTUS: Privacy, Policies, Privilege, and E-Discovery.

New Process Steel v. NLRB
The Supreme Court also issued its opinion in New Process Steel v. NLRB (.pdf). In the simplest terms: 3-Member NLRB Good; 2-Member NLRB Bad. Unfortunately, the NLRB had been (sort of) operating with two members for quite awhile. Per employment lawyer Jon Hyman via Twitter, "26 months of NLRB decisions down the tubes."

Interesting to note: The majority was comprised of Justices Roberts, Alito, Scalia, Thomas... and Stevens! Justice Stevens actually authored the opinion and was the swing vote, siding with the "conservative bloc." Meanwhile, Kennedy (the usual "swing vote") dissented with Breyer, Ginsburg, and Sotomayor

Previous Coverage on Lawffice Space: NLRB Already Here? Returns? In the Distant Future?, 2-Member NLRB Hits SCOTUS, and New Regime - SCOTUS, EEOC, NLRB.

That leaves two employment law cases left. After I've had time to digest the opinions, I will likely (no guarantees) post some more analysis.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Redefining Clothes - DOL Edition

noreply@blogger.com (Philip Miles) — Wed, 16 Jun 2010 23:56:00 +0000

Clothes were redefined today. I wish I could tell you I meant that it some ultra-trendy way involving French designers and possibly Mugatu... but sadly I don't. I mean it literally. I mean it in the nerdy kind of way that only a lawyer, in 5 pages of analysis, case citations, and federal statutes, can mean it. The Department of Labor issued an administrator's interpretation on Section 3(o) of the Fair Labor Standards Act, 29 U.S.C. § 203(o), and the definition of "clothes."

First, why does the definition of "clothes" matter?

Section 3(o) of the Fair Labor Standards Act (FLSA) provides that time spent "changing clothes or washing at the beginning or end of each workday" is excluded from compensable time under the FLSA if the time is excluded from compensable time pursuant to "the express terms or by custom or practice" under a collective bargaining agreement. 29 U.S.C. § 203(o).

So, how did "clothes" change today? It no longer includes certain protective equipment.

[The] exemption does not extend to protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job.

This will effect the compensability of such donning and doffing (to use the hip FLSA lingo).

The administrator also concluded

[T]hat clothes changing covered by § 203(o) may be a principal activity. Where that is the case, subsequent activities, including walking and waiting, are compensable.

And that's your fashion update - FLSA DOL style.

For more info see Daniel Schwartz's take on Connecticut Employment Law Blog; and Ross Runkel's coverage on LawMemo.

Image: Nancy Leppink, Wage and Hour Deputy Administrator (and author of the interpretation that is the subject of this entry). Public Domain as work of the U.S. Government.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Pending SCOTUS Employment Law Cases

noreply@blogger.com (Philip Miles) — Mon, 14 Jun 2010 15:19:00 +0000

I took a quick glance at the SCOTUSblog list of undecided Supreme Court cases this morning to see what's left on the employment law front. By my count, there are ~~three~~ four (see update below) clearly employment law cases left:

New Process Steel v. NLRB: The Court will likely decide whether a 2-member NLRB can decide cases under the NLRA. For Lawffice Space coverage see: NLRB Already Here? Returns? In the Distant Future?, 2-Member NLRB Hits SCOTUS, and New Regime - SCOTUS, EEOC, NLRB.

City of Ontario v. Quon: The Court will likely address public employee privacy rights in text messages on an employer-issued pager. For Lawffice Space coverage see: Text Message Privacy Hits SCOTUS, and Text Privacy at SCOTUS: Privacy, Policies, Privilege, and E-Discovery.

Rent-A-Center v. Jackson: The Court should determine whether a federal district court must "decide the threshold question of arbitrability when a plaintiff challenges an arbitration agreement as unconscionable." On Lawffice Space: Arbitrability of Arbitrability Determination Under Arbitration Act Hits SCOTUS, and Arbitration Agreement Unconscionability Determination Hits SCOTUS.

Of course, a creative attorney can turn just about any case into an employment law case. For example, the Supreme Court will decide whether the Second Amendment right to bear arms is incorporated (applied to state action) in McDonald v. Chicago. If decided on "privileges or immunities" grounds, it could be an employment law blockbuster (though oral arguments indicate such a result is not likely). In theory, it could also lead to Second Amendment Unemployment Compensation.

And you never know when a commerce clause case could restrict government's authority to regulate, or a University free speech case will impact public employment, or a procedural question on attorney's fees or pleading standards will shake the employment law world. We'll just have to wait and see.

Drop a comment if I missed any cases you think should be on here, or if you'd like to show off your own creative lawyering by turning a not-employment law case into an employment law case.

Update: Ross Runkel alerted me to my omission of Granite Rock Company v. Teamsters ("Whether a federal court has jurisdiction to determine collective bargaining agreement formation and whether a §301(a) action is available against a union that is not a direct signatory to the collective bargaining agreement." - SCOTUSBlog). Mr. Runkel is hereby rewarded with a link to his coverage of the case on LawMemo. Thank you!

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Lewis and Ledbetter Distinguished

noreply@blogger.com (Philip Miles) — Fri, 11 Jun 2010 02:34:00 +0000

Why did Lewis come out differently from Ledbetter? Lawffice Space readers are already aware of Lewis v. City of Chicago (Opinion | Overview | Lewis and Ricci Combined | More Thoughts). And anyone who follows employment law is aware of Ledbetter v. Goodyear.

Lewis held that a disparate impact claim accrues upon the application of an employment practice or policy - in other words, the limitations period does not begin solely upon the initial adoption of the practice, but resets upon the application of that practice.

By contrast, Ledbetter held that the statute of limitations for a disparate treatment claim does not reset upon the application of a prior discriminatory act. Specifically, the limitations period does not reset upon the issuance of a paycheck that is lower - effectively tainted - because of past discrimination. It was a controversial decision which was essentially mooted by the enactment of the Fair Pay Act.

So why did Arthur Lewis win, while Lilly Ledbetter lost? Some (apparently including Congress) would argue that Ledbetter was just wrong. The Supreme Court, however, offered this explanation in Lewis:

For disparate-treatment claims—and others for which discriminatory intent is required—that means the plaintiff must demonstrate deliberate discrimination within the limitations period. But for claims that do not require discriminatory intent, no such demonstration is needed.

In short, the Court points out that the gravamen of a disparate treatment claim is intent; so, subsequent effects are irrelevant if there's no discriminatory intent (such as upon the routine issuance of a paycheck). Meanwhile, a disparate impact claim is based on effects. Hence, disparate impact claims can occur upon the mere application of a practice, even absent discriminatory intent, because it's the effects that matter.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

The Combined Lesson of Lewis and Ricci

noreply@blogger.com (Philip Miles) — Tue, 08 Jun 2010 01:03:00 +0000

My latest entry on ELinfonet is up: Learning Lewis but Remembering Ricci. In this post, I combine the Supreme Court's opinions in Lewis v. City of Chicago and Ricci v. DeStefano (Lawffice Space series on each opinion) into a comprehensive game plan for employers.

Court-watchers may recall that the Supreme Court faulted the fire department in Ricci for not following through on its testing despite racial disparities in the results. Then in Lewis, the Court faulted another fire department because it kept using the test results despite the disparate impact.

My new post helps sort out when to GO and when to STOP.

See also, my other posts on ELinfonet.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

If at First You Don't Succeed...

noreply@blogger.com (Philip Miles) — Mon, 07 Jun 2010 01:48:00 +0000

Sure, it's a tad cliche to point out that "If at first you don't succeed, try try again." In The Drunkard's Walk: How Randomness Rules Our Lives, however, Leonard Mlodinow provides a few great literary examples of the premise:

John Grisham's manuscript for A Time to Kill was rejected by twenty-six publishers . . . . Dr. Seuss's first children's book, And to Think That I Saw It on Mulberry Street, was rejected by twenty-seven publishers. And J.K Rowling's first Harry Potter manuscript was rejected by nine.

(Page 10). Publishers passed on three of the bestsellers of the modern era sixty-two times! The authors, of course, highlight the benefit of persistence. Rowling alone went on to sell more than 400 million copies in the Harry Potter series (not to mention the popular movie series).

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.