Tuesday, November 25, 2014

2014 Blawg 100 is Out

Well, the ABA Journal's Blawg 100 came out yesterday. I was going to post about it sooner but I've been curled up in the fetal position, crying under my desk for the past 12 hours because I didn't make the cut. There's always next year I guess.

You can read the whole list here. The Labor and Employment category includes some new faces (and some old ones):


(that's the name of the last blog on the list, not me signing off). Congrats everyone.

Monday, November 24, 2014

Employer Mandate Extension Attacked as Unconstitutional

On Friday, the U.S. House of Representatives filed this Complaint, alleging that President Obama's unilateral delay and alteration of the Obamacare employer mandate was unconstitutional.

The Patient Protection and Affordable Care Act (aka "Obamacare") includes an "employer mandate." Large employers, defined as having at least 50 full-time employees (or 50 FTEs), must provide health insurance for their full-time employees or else pay a penalty. The mandate was supposed to begin on January 1, 2014.

However, the Obama administration decided to delay implementation of the mandate until 2015. Even in 2015, the administration will only enforce the mandate for employers with more than 100 employees who fail to cover at least 70% of their full-time employees. Further still, even in 2016, the administration will only enforce the mandate for employers who fail to cover 95% of their full-time employees.

The House's argument is pretty simple: The president can't re-write the law to change dates, and which employers are covered, and how many employees the employer needs to insure. That's a pretty clear legislative function.

President Obama (more specifically, the executive officers and departments named in the Complaint) has not filed an answer yet. Presumably he will argue some type of executive discretion to phase in the legislation and some discretion to target only the most egregious offenders in the law's early implementation.

Frankly, I don't know enough about this area of the law to assess how strong of an argument that will be. Also, there will be some question of whether the House has standing to even file such a lawsuit. I should note that part of the lawsuit challenges public funding of programs for which Congress has not allocated funds. It will definitely be interesting to see how this plays out.

This is not directly on point, but if you missed SNL's I'm just a bill/executive order skit then you should definitely check it out.

Wednesday, November 19, 2014

$185 Million Pregnancy Discrimination Award

Discriminating against pregnant employees or employees who oppose discrimination is generally unlawful. That's not news. A California federal jury awarded a woman who worked for AutoZone $872,719 in compensatory damages ($393,759 for past economic loss earnings, $228,960 for future economic loss earnings and $250,000 for emotional distress).Well, that's pretty interesting, but I don't know that I'd call it big news. Oh, one last thing . . .

The jury awarded the woman $185 million in punitive damages!

Now that's newsworthy!

Sidenote: Can we declare a moratorium on the "185 million reasons to . . . . " headlines?

Tuesday, November 18, 2014

Dancers Win Classification Fight with Strip Club

There are a lot of thing you won't find in strip clubs . . . like clothes. But strangely, you find a ton of employment law. In particular, there are a lot of classification issues.

Employers have a lot of reasons for classifying workers as independent contractors instead of employee - no wage and hour compliance, no payroll taxes, less liability when they do something wrong, and they're generally not covered by protective employment statutes (like anti-discrimination laws). So, strip clubs have really been pushing the limits of what is a proper classification.

CNN Money reports that a class of 1,900 dancers (or "strippers" as the article calls them) won a big court battle recently. The Court ruled that they were employees who deserved minimum wage. The Court's analysis focused on the "degree of control" the clubs had over the dancers. From the article:
[Judge] Engelmayer said that the club's "entertainer guidelines" and the fines it levied if workers violated them "operated as a sword of Damocles over the dancers" and served as "strong evidence" that they were employees, not independent contractors. The guidelines "exerted significant control over its dancers' behavior," he said. 
Workers had to wear heels at least four inches high, for example, and had to cover up all tattoos. They couldn't chew gum, wear the same dress two days in a row, or any sort of body glitter. 
Dancers had to pay the club a range of fees, including a nightly "house fee," and at least $20 of their tips. Workers would be fined or fired if the fees went unpaid.
Apparently, some of the dancers actually lost money on some shifts. According to another CNN article (they dedicate a lot of resources to the important stories!), the damages could be in the neighborhood of $10 million.

And, finally . . . I swear I was gonna use this before Jon Hyman tweeted it at me . . . no word yet on whether the judgment will be paid in 1s (ba dum ching).

HT: Mike Chittenden via email - he knows the kind of cases I like (by which I mean wage and hour cases of course).

Monday, November 17, 2014

Teacher's Racist Twitter Rant and the Law

Have you heard the one about the teacher who got fired over a racist Twitter rant about Ferguson? To recap, she posted some lovely gems, such as
Who the (expletive) made you dumb (expletive) crackers think I give a squat (expletive) about your opinions. #Ferguson Kill yourselves.
The teacher, an African-American woman, then clarified her views:
You exhibit nigga behavior, I'm a call you a nigga. You acting crackerish, I'm a call you a cracker."
And then the school board clarified its view, which I'll paraphrase as "you're fired!"

This story has generated a fair amount of media buzz, which means lots and lots of Internet comments. In this post, I clear up some recurring misconceptions about employment law in this area.

Error #1: At-will employment! She can get fired for anything!

Yes, most states are "at-will" and this generally means employers can terminate the employment relationship for any reason so long as it does not violate a specific statute (like an anti-discrimination statute for example). But there's another exception: contracts. And teachers are very often in unions. And those unions have a collective bargaining agreement (CBA). And those CBAs often require "just cause" for termination.

Would this Twitter rant constitute "just cause"? Maybe. The rant appears to be off-duty conduct, and not directly related to her employment, which could make establishing just cause difficult. That said, it's not hard to create a tie-in to her employment - if you were white, would you want a teacher who calls white people "crackers" teaching your son or daughter? Is "Kill yourselves" the type of civil discourse you want your child learning?

I'm going to lump the next two errors together because they are both First Amendment-related:

Error #2: First Amendment! She can't get fired for expressing her opinions!
Error #3: She didn't go to jail, the First Amendment only prevents criminal prosecution, it doesn't protect your employment. 

Errors 2 and 3 are both a little right and a little wrong. Generally, the First Amendment does not protect employees from getting fired. And generally, the First Amendment only applies to government action, such as criminal prosecution. But, the First Amendment protects public employees (like public school teachers) from getting fired in some circumstances.

The First Amendment protects public employees who speak as citizens on matters of public concern. Here, the teacher is discussing Ferguson in a public forum - so she probably gets some First Amendment protection, but how much?

Under the Pickering test, the Court’s role is to “balance between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Bd. of Educ. of Township High Sch., 391 U.S. 563, 568 (1968).

Here, the school could argue that the comments interfere with its efficient operation for the same reasons I described under Error 1. Racist vitriol and telling people she disagrees with to kill themselves make it very difficult for white students and/or people who disagree with her to feel safe in her class. Her Twitter comments appear to affect her job as a teacher. That said, she could argue (assuming it's true) that she has treated everyone equally in her classes and that she fosters civil discussion in the classroom - her off-duty comments have no impact on that.

The point here is that the legal issues with teachers are complex. Both sides in this situation have arguments they could present to a court or jury. Ignoring the legal issues, the practical takeaway here is: don't call people racial slurs and advocate their suicide on social media.


Friday, November 14, 2014

SCOTUS Arguments on Retiree Benefits in CBAs

I love it when current events perfectly align with my lesson plan for my employment law class at Penn State. Yesterday, we discussed health insurance and the reading assignment included this tidbit:
Unionized employees have had some success in arguing that retiree health benefits obtained through collective bargaining are not revocable, particularly in the absence of any clear contract language authorizing the employer to modify or terminate the benefits.
Employment Law for Human Resource Practice (4th Ed.) by David J. Walsh, p. 452. As luck would have it . . . this exact issue was before the Supreme Court on Monday!

The case is M&G Polymers USA, LLC v. Tackett, and you can read the transcript from the oral arguments here. The issue is whether retiree health benefits in a CBA vest immediately and continue indefinitely or if they are subject to change (most notably upon termination of the CBA).

Of course, the parties could specify that in the CBA - but life's never that easy. What happens if the CBA is silent on the subject? Do we look outside the CBA to discern the parties' intent? Will the Court impose a presumption one way or the other?

As I told my class yesterday, if the Court imposes a strong presumption (regardless of whether it's a presumption that the benefits vest and continue, or do not survive the termination of the CBA), that should solve the problem moving forward. The parties will simply know what the "default" is and if they want something else, they can bargain for it and include express language overriding the presumption in the CBA.

We'll have to wait and see what SCOTUS does with this one . . . .

Friday, November 7, 2014

Sixth Circuit Upholds Same-Sex Marriage Bans

Ladies and gentlemen . . . we have a circuit split. Several federal court decisions have struck down same-sex marriage bans in states across our country. Yesterday, the Sixth Circuit Court of Appeals upheld same-sex marriage prohibition as constitutional. You can read the opinion here.

I have not had a chance to read the full opinion. The opening and closing seem long on rhetoric and short on legal analysis (presumably the "meat" is in the middle). The closing words:
When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.
While I agree with that, I'm not sure it really addresses the underlying legal issue.

We now have a "circuit split" on this issue. Will SCOTUS take up same-sex marriage and decide this issue once and for all? After the Sixth Circuit's decision the odds just rose dramatically.