Tuesday, August 23, 2016

BREAKING: NLRB "Student Assistants Covered by the NLRA"

Not official use.
You could see this coming a mile away; the only question was "when?" Today is the day. The NLRB issued its decision in Columbia University, holding that graduate students at private colleges and universities are employees who may form unions under the NLRA.

The NLRB concluded that graduate students, including teaching assistants and student research assistants, were "statutory employees: individuals with a common-law employment relationship with Columbia University." This decision overrules Brown University, which generally held that graduate students were primarily students and therefore not employees.

This decision does not directly impact public universities as they are generally governed by state bargaining laws (for example, in Pennsylvania we have the Public Employe Relations Act, which falls under the PLRB's jurisdiction). You can read the NLRB's announcement here.

Fed's transgender initiatives are struggling

Last week, the EEOC lost one of its first transgender discrimination cases. The Eastern District of Michigan dismissed the claims in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (opinion here).
Not official use.

The Court noted that the protected classes under Title VII do not include transgender employees; but that doesn't really get us very far. You see, the case involved a sex-specific dress code and a male employee who was transitioning to female. Dress codes present particularly thorny issues under a "gender stereotyping" theory. So, even if Title VII does not specifically protect transgender employees, employers may still face liability for imposing gender stereotypes on employees regardless of whether they are male, female, transitioning, or transgender.

Here, however, the Court dismissed the claims based on the Religious Freedom Restoration Act (RFRA). The gist of the decision is that requiring the employer (a funeral home) to allow its biologically male employee to wear a skirt would impose a substantial burden on the employer's religious beliefs. Under RFRA, the EEOC could still win by showing a compelling government interest, and that it is using the least restrictive means to attain it. The Court assumed the former but held that the EEOC failed to establish the latter.  Eugene Volokh has some interesting analysis here.

On top of the Harris decision, a federal court in Texas issued a nationwide injunction blocking the President's Title IX guidance to schools on transgender bathroom usage.

I'm sure we haven't heard the last of these issues.

Thursday, August 11, 2016

What does "solicit" mean in nonsolicitation agreements?

Nonsolicitation clauses are fairly common in restrictive covenants. The contract will say something like, "Upon termination, Employee shall not solicit customers of Employer for a period of two years" (it is also common to forbid solicitation of employees). What exactly does "solicit" mean though?

Meyer-Chatfield v. Century Business Srv., Inc., 732 F.Supp.2d 514 (E.D. Pa. 2010) has an entire section under the headline "Meaning of Solicitation." The Court turns to Black's Law Dictionary:
To appeal for something; to apply to for obtaining something; to ask earnestly; to ask for the purpose of receiving; to endeavor to obtain by asking or pleading; to entreat, implore, or importune; to make petition to; to plead for; to try to obtain; and though the word implies a serious request, it requires no particular degree of importunity, entreaty, imploration, or supplication. To awake or incite to action by acts or conduct intended to and calculated to incite the act of giving. The term implies personal petition and importunity addressed to a particular individual to do some particular thing. Black's Law Dictionary, p. 1392 (6th ed. 1990).
At this point, I should note that Black's Law Dictionary has undergone numerous revisions since the 6th Ed. in 1990. The 10th edition (2014) defines "solicitation" as:
1. The act or an instance of requesting or seeking to obtain something; a request or petition . . . .
4. An attempt or effort to gain business. • The Model Rules of Professional Conduct place certain prohibitions on lawyers' direct solicitation of potential clients.
I omitted the less relevant prostitute-y/criminal definitions.

I found this portion of the Meyer-Chatfield opinion particularly interesting:
Also relevant here is Aetna Bldg. Maintenance Co. v. West, 246 P.2d 11 (Cal. 1952). Aetna concerned an agreement where the defendant may not "solicit, serve and/or cater to any of the customers of the [plaintiff] Company served by him." Id. at 13. Despite the additional language of "serve and/or cater" modifying solicit, the court still held that "[m]erely informing customers of one's former employer of a change of employment, without more, is not solicitation. Neither does the willingness to discuss business upon invitation of another party constitute solicitation on the part of the invitee."
That gives employees who sign nonsolicitation agreements a lot of wiggle room.

Tuesday, August 9, 2016

Are Robots Stealing Attorneys' Jobs?

I just finished reading Robert Gordon's The Rise and Fall of American Growth: The U.S. Standard of Living Since the Civil War (as a reminder, you can always track what I'm reading through my Goodreads bookshelf). It's a remarkable book, detailing the period of meteoric, unprecedented (and, the author argues, one-time) growth in the United States from approximately 1870-1970. Think about it... cars replace horses, electric lights replace candles and lamps, running water replaces pitching pales from the well, and on and on.

NES R.O.B. by Evan-Amos
Unfortunately, the book also notes a general plateau-ing since 1970, with stagnant real wages and little hope for such revolutionary growth moving forward. Wah-waaahh. One particularly interesting passage addressed the legal profession:
Another use of artificial intelligence is now almost two decades old: the ability to use modern search tools to find with blinding speed valuable nuggets of existing information. The demand for legal associates has declined in part because of the ability of computerized search tools to carry out the process of discovery and search for precedents. "Computers are reading millions of documents and sorting them for relevance without getting tired or distracted.... As such analytical power expands in scope, computers will move nearer to the heart of what lawyers do by advising better than lawyers can on whether to sue or settle or go to trial."
At a high level, this is nothing new - technology makes us more efficient. It makes us better lawyers. I can more quickly identify precedent, and verify that it is still good precedent. I can find better cases that more precisely track the facts and procedural posture of my cases. This increased productivity is good for my practice, but also reduces the need for labor in the industry generally.

Presumably, enhanced data analysis will also enable us to better predict outcomes. That said, I have yet to see anything that really rivals a good attorney's best guess. For now, I'll just keep plugging away and doing my best to keep up with the technology while using it to my advantage. At least until Skynet.


Monday, August 8, 2016

Seventh-Day Adventist sues Wal-Mart for Failure to Provide Religious Accommodation

The Legal Intelligencer reports Wal-Mart Manager Sues Employer Alleging Religious Bias. The gist of the lawsuit is that the manager, a Seventh-Day Adventist, needs time off from "sundown Friday to sundown Saturday" to observe the Sabbath. Apparently, Wal-Mart had been providing the accommodation but a new HR person revoked it.

Logo used in commentary.
Does he have a case? Absolutely. Under Title VII, employers must reasonably accommodate the sincerely held religious beliefs of their employees. A sidenote: a comment on the story states that "Seventh Day Adventists are a mainstream denomination, not a cult." This is irrelevant. Employers must accommodate "sincerely held religious beliefs" whether they are part of a mainstream religion, a "cult," or even singularly held beliefs by the individual employee. An adjusted schedule may be a mandatory reasonable accommodation.

Now, don't get me wrong, Wal-Mart is not without defenses. Most notably, employers may escape the obligation to accommodate religious beliefs if accommodation would impose an "undue hardship." It's worth noting that in the religious accommodation context, an "undue hardship" is generally little more than de minimis cost - as opposed to the higher burden under disability accommodation law.

Wednesday, August 3, 2016

PA Supreme Court to analyze definition of "current employee" under Personnel File Act

This is not a huge issue, but it's one that comes up very frequently in Pennsylvania employment law practice. The Pennsylvania Personnel File Act (43 P.S. s 1321, et seq.) requires employers to allow "employee[s]" to inspect their personnel files. It's a short statute, and very short on details. One quirky thing about it is that it defines "employee" as "Any person currently employed" (and a few other scenarios for people on temporary leave).

So, what happens when an employer fires an employee (or the employee quits) and then the employee wants to review his or her personnel file? I mean, technically that person is not "currently" an employee and therefore not covered by statute, right? Not so fast! The Commonwealth Court of Pennsylvania recently held (citing past precedent/arguably dicta) that the statute affords employee's a right to inspect their personnel files for "a reasonable time immediately following termination." Thomas Jefferson University Hospitals v. PA DLI.

Now, the Pennsylvania Supreme Court has granted a petition for appeal to address the issue:
Whether the Pennsylvania Personnel File Act [43 P.S. §§1321-24]’s definition of “current employee” means former employee, as was held by the Commonwealth Court in this case when it erroneously relied on nonprecedential dicta in an earlier Commonwealth Court decision (Beitman v. Dep’t. of Labor & Indus., 675 A.2d 1300 (Pa. Cmwlth. 1996))?
I suspect that employees will receive some allowance for post-termination review, but I guess we'll wait and see. I believe the actual case involves a request a mere one week following termination. It would be nice if the PA Supreme Court gave us a nice bright-line rule (like "2 weeks good, more than 2 weeks bad"), but that may be beyond the scope of review.

Tuesday, August 2, 2016

What did I miss?

Sorry for the lack of blogging. For the first time in seven years I actually took a full fledged week-long vacation. I was in Martha's Vineyard, which was beautiful. That's the Aquinnah Lighthouse in the picture. I'm actually kind of proud of myself, because I managed to (mostly) ignore all things work-related.

So, what did I miss?


Fill me in with any other goodies I may have missed in the comments. I'm still getting caught up!