Monday, February 1, 2016

Lawffice Links - President Obama on Equal Pay and New EEO-1s

On Friday, President Obama made some announcements regarding his efforts to address pay equity. He timed them to match the 7th anniversary of the Lilly Ledbetter Fair Pay Act"
That should keep you busy for awhile. 

Thursday, January 28, 2016

EEOC Rejects "Manager Rule" in New (Proposed) Retaliation Guidance

I'm working my way through the EEOC's proposed guidance on retaliation claims. On pages 13-16, the EEOC specifically rejects the "manager rule" and notes that DOL rejects it too. The guidance cites Joint Amicus Brief for the Secretary of Labor and the Equal Employment Opportunity Commission, Rosenfield v. GlobalTranz Enterprises, Inc., __ F.3d __, 2015 WL 8599403 (9th Cir. Dec. 14, 2015) (No. 13-15292)(available here).

What is the "manager rule?" I've covered this before in the context of Title VII:
Not official use.
Sometimes, in retaliation cases, the employee claiming to have opposed discrimination also has a job responsibility that involves policing discrimination in the workplace. In litigation, employers will often argue that the employee has not really engaged in "protected activity" because the employee was just doing his or her job... not really opposing discrimination as contemplated in Title VII.
What does the EEOC have to say about it? Well, from the proposed guidance:
[I]n determining if protected opposition occurred, the focus should not be on the employee’s “job duties” but rather on the “oppositional nature of the employee’s complaints or criticisms, [and any other rule would be] inapposite in the context of Title VII retaliation claims.” 
Rejection of the “manager rule” under Title VII does not mean that every human resources employee, or every managerial employee with a duty to report discrimination, will have a viable claim of retaliation. A managerial employee with a duty to report or investigate discrimination still must satisfy the same requirements as any other employee alleging retaliation under the opposition clause described below -- meeting the definition of “opposition,” acting with a reasonable and good faith belief that the opposed practice is unlawful (or would be if repeated), and using a manner of opposition that is reasonable.
I'm not sure that's a model of clarity, but it's a start.

Monday, January 25, 2016

DOL Issues "Joint Employer" Guidance

Not official use.
The Department of Labor recently issued new guidance regarding "joint employers" . . . via blog entry? It's a little unconventional, but I'll take the guidance where I can get it. Check out Are You a Joint Employer? on DOL's blog. You can read more on the Wage and Hour Division's website: Joint Employment Under the FLSA and MSPA.

The primary definition they're using is: "Joint employment exists when a person is employed by two or more employers such that the employers are responsible, both individually and jointly, for compliance with a statute." Needless to say, the current DOL takes a broad view of joint employment, and has made it an area of focus.

Thursday, January 21, 2016

SCOTUS makes "picking off the plaintiff" in FLSA collective actions a lot harder

Let's start with some recent history. Remember back in 2013, when the Supreme Court decided Genesis Healthcare Corp. v. Symczyk (Lawffice Space coverage here)? Let me give you a brief recap.


Justice Ginsburg authored the opinion
in Campbell-Ewald Co. v. Gomez
An employee initiated a FLSA wage and hour claim with the intention of making it a collective action. The employer made an offer of judgment (under Fed. R. Civ. P. 68), which would have given the plaintiff all of the damages to which he claims he was entitled. The employer then argued, welp, I guess the employee's case is moot because he can't possibly collect any additional damages through litigation; and, if his case is moot, then the whole lawsuit should be tossed because there are no other employees in the collective action yet.

The Supreme Court decided the case, but with a major assumption. The Court assumed - without actually deciding - that the Rule 68 offer of judgment mooted the lead employee's case. From there, the Court concluded that if the employee's claim was moot, then the whole case should be dismissed because no other employees had joined the collective action at that point in time.

The Court left the question of whether the offer of judgment actually mooted the case for another day. Yesterday was that day. The Court issued its opinion in Campbell-Ewald Co. v. Gomez.

The background facts of the case are very different. The case involves an offer of judgment in the context of the Telephone Consumer Protection Act (TCPA) and unwanted text messages. However, the holding is clear and it will obviously apply to federal litigation generally:
We hold today, in accord with Rule 68 of the Federal Rules of Civil Procedure, that an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation. With the offer off the table, and the defendant’s continuing denial of liability, adversity between the parties persists . . . . In sum, an unaccepted settlement offer or offer of judgment does not moot a plaintiff ’s case.
This will make it much harder for an employer to "pick off the plaintiff" (as the strategy was called) in class or collective actions. In other words, employers facing wage and hour collective actions can not just offer to pay the lead plaintiff's damages. However, the strategy still has some viability, if the employer offers the lead plaintiff damages and (s)he accepts it

Update: I should note that there is some discussion in the case of ways to circumvent the ruling. For example, the majority states "We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff ’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount." Justice Alito's dissent notes "The defendant might hand the plaintiff a certified check or deposit the requisite funds in a bank account in the plaintiff ’s name." It sounds like some questions remain . . . .

Wednesday, January 20, 2016

Make the Employment Law Blog Carnival Great Again! #ELBC

January's edition of the Employment Law Blog Carnival is LIVE! Check out Robin Shea's Employment Law Blog Carnival: Iowa Caucus Edition. Thanks to Robin for including Lawffice Space, and great job on this month's edition.

Tuesday, January 19, 2016

Dentist Faces Discrimination Lawsuit for Christian Music and Prayer Meetings

The media has jumped on a recent case involving a dentist who is being sued for harassing staff by constantly playing Christian music. Can employees really sue for an employer playing Christian music? Frankly, I think it would be a tough case to win for a lot of reasons.

Christian metal band, Stryper, from their To Hell with the
Devil Tour in 1986 (CC License).
Assuming we're talking about a hostile work environment claim, then the music must be subjectively offensive (actually offensive to the employee), objectively offensive (offensive to a reasonable person under the circumstances), and severe or pervasive enough to alter the working conditions and create an abusive or hostile environment. Can Christian music alone meet that standard? We'd need to know more about the situation - the volume, the lyrics, the location, the particular reasons the employees claim it was so offensive, etc. If we're talking about something mundane, like "We Wish You a Merry Christmas" then forget about it. If it's a constant barrage of deafening music with lyrics like, "worship Jesus or you'll spend eternity burning in hell you worthless heathen"... well, then the case becomes a little stronger.

It's definitely worth noting that the former employees also claim they were forced to participate in prayer sessions. That's an obvious no-no. The employer denies the allegation.

For a good video, check out this 2-3 minute video from the Saddleback Church (I know, I know... to be honest, I didn't expect an even-handed analysis either, but it's actually pretty objective): Is an employee or employer allowed to play Christian music or display Christian materials in their workspace?

HT: My friend Mike Chittenden emailed this one to me.

Tuesday, January 12, 2016

Lawffice Links - SCOTUS Arguments on Mandatory Fees for Public Unions

Yesterday, the Supreme Court heard oral arguments in Friedrichs v. California Teachers Association (SCOTUSblog page), a hugely important case for public unions. I baked some Lawffice Links to mark the occasion:
So far, the commentators seem to think that SCOTUS is going to overrule Abood (the aforementioned "1977 decision") and strike down mandatory fees. Of course, we never know how the Supreme Court is going to rule until they rule. Stay tuned.