Monday, February 19, 2018

James Damore's (aka Google Memo Guy's) NLRB charge withdrawn

An interesting update on James Damore aka Google Memo Guy, who I wrote about previously. As I stated in that post, I thought he had a viable protected concerted activity claim, but that "Google may have a decent defense if it can point to sufficiently inappropriate content in the memo."

The NLRB recently released a January 16, 2018 Advice Memorandum. The tldr version: 
Used in commentary. Not licensed use.
[W]hile much of the Charging Party’s memorandum was likely protected, the statements regarding biological differences between the sexes were so harmful, discriminatory, and disruptive as to be unprotected.
Thus, the Associate GC's advice was for the region to dismiss the charge.

The case page includes a docket entry from January 23, 2018 (just one week after the advice memo), "Letter Approving Withdrawal Request." Does this mean Damore gives up? His new class action lawsuit tells me, probably not.

Tuesday, February 6, 2018

Fired for What!? - Meek Mill and the Court Clerk

I suppose a Philly-themed post is appropriate given that the new NFL champions are PA's own Philadelphia Eagles. Did you like that rap song the Eagles played as they took the field in te Super Bowl? It's called Dreams and Nightmares, by Philadelphia rapper, Meek Mill.

Meek Mill has had some legal problems . . . but this post isn't (directly) about those. While Mr. uhh, Mill (?) was in court for sentencing, a clerk slipped him a note begging for money to pay her son's college tuition. You've gotta be kidding me. In any event, Meek Mill did not respond, got a harsh prison sentence, and, now the clerk has been fired.

Needless to say, asking for money from a criminal defendant while you are working for the Court is an awful idea.

Sunday, January 28, 2018

The DirecTV installers' long NLRA adventure has come to an end

I teach undergraduate and graduate employment law classes at Penn State. Every semester, we cover a NLRB decision from 2011, MasTec Advanced Technologies.

MasTec employed a bunch of DirecTV installers. It was important to DirecTV that the installations include a telephone landline connection to the satellite receiver - the receiver functioned without a connection, but the connection enabled certain features for customers, and provided viewing information to DirecTV (important for making programming decisions).

Not official use.
So, MasTec told the installers to do whatever it takes to get a phone line connected. Eventually, MasTec implemented quotas, pay decreases for installations without a connection, a $5 back-charge per unconnected installation if the installer failed to meet the quota, and eventually even termination. The employees did *not* like the new rules, and tried to work things out with management but failed.

So, what did they do? They went to the local TV station, blasted their employer on-air, and told everyone that DirecTV installers were being told to lie to customers. MasTec terminated the employees. The NLRB held that the terminations violated the NLRA's protection of concerted activity.

The basic point of the case is that employees cannot be fired for banding together to address the terms and conditions of their employment. The tricky part of this case was analyzing whether they lost their protection due to their allegedly disparaging and disloyal conduct. The NLRB held that they did not cross that line and lose their protection. 

Sometimes, while reading cases to prepare for class, I wonder, "whatever happened to that case?" Well, last semester, I was surprised to see that this case was still alive! The employer had appealed it up through the D.C. Circuit court (which affirmed the NLRB decision), and even petitioned the Supreme Court to hear the case.

It would have been a really interesting case for SCOTUS. Alas, it was not to be, the Supreme Court denied the petition on October 2, 2017. That is almost certainly the end.

Thursday, January 18, 2018

Update on Unpaid Interns

Several years ago, the Department of Labor issued a Fact Sheet (#71) addressing when internships may be unpaid (versus falling under the general FLSA employment requirements, including the requirement that employers pay workers at least a minimum wage and overtime). The Department advocated for a stringent six-factor test that would have led to many unpaid internships being deemed unlawful, and requiring many unpaid interns to receive minimum wage and overtime.

DOL's 6-factor test did not fare well in the courts. One high-profile example was Glatt v. Fox Searchlight Pictures, involving interns who worked on the movie Black Swan. The Second Circuit rejected the DOL's 6-factor test and instead used the "primary benefit" or "primary beneficiary" test. "[T]he proper question is whether the intern or the employer is the primary beneficiary of the relationship."


Not official use.
This month, the DOL abandoned its 6-factor test and issued an updated version of Fact Sheet 71. The new Fact Sheet basically reiterates (almost word for word) the test from Glatt:
In short, this test allows courts to examine the “economic reality” of the intern-employer relationship to determine which party is the “primary beneficiary” of the relationship. Courts have identified the following seven factors as part of the test:  
1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.  
2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.  
3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit. 
4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.  
5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning. 
6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern. 
7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship. 
Courts have described the “primary beneficiary test” as a flexible test, and no single factor is determinative. Accordingly, whether an intern or student is an employee under the FLSA necessarily depends on the unique circumstances of each case.
Generally, this test will make it easier for unpaid internships to pass FLSA muster.

Thursday, January 11, 2018

3d Cir: FCA retaliation requires "but for" causation

Not official use.
Last week, the Third Circuit issued a precedential opinion in DiFiore v. CSL Behring LLC. DiFiore claimed that her employer fired her (technically, constructive discharge) in retaliation for whistleblowing activity. In particular, she internally reported concerns about "the activities of CSL and its employees in marketing drugs for off-label use and including off-label use in sales forecasts."

DiFiore included a claim of retaliation under the False Claims Act (FCA). The Third Circuit concluded that a jury instruction that FCA retaliation required "but for" causation (as opposed to the lower burden of a "mixed motive" instruction) was appropriate.

Happy New Year!

Happy New Year! I was out of town for the first 9 days of 2018, so I'm just now getting back in the swing of things. For the most part, it was family vacation time. However, the last day (Jan. 9) I visited the United States Supreme Court and got sworn in to the SCOTUS bar! Obligatory SCOTUS-steps selfie on the right.

Now, I just need a Supreme Court case and I'm all set!


Wednesday, December 20, 2017

Lawffice Links - NLRB-mageddon

Wow, the NLRB has been busy. So busy, that I literally can't even keep up. Maybe they'll take a break over the holidays so I can properly digest all of this stuff. Here's my feeble Twitter attempt to hit some highlights.

Here are some Lawffice Links on the subject.
What's truly amazing is that this has largely flown under the radar. I remember when the then-new joint employer standard was a top trending topic on Twitter. That decision has now been overruled, along with several other major reversals, and I hardy hear anything about it (I mean, in the mainstream media and social media trends - obviously, the #emplaw nerds are all over it). I'm sure this is only the beginning.