Thursday, January 29, 2015

Will SCOTUS Take Another Crack at ADEA Preclusion of s1983 Claim?

The SCOTUSblog Petition of the Day is Hildebrand v. Allegheny County out of my beloved home circuit (aka the 3d Cir.). The issue presented is:
Does the Age Discrimination in Employment Act, which forbids age-based discrimination against state and local government employees, preclude those employees from bringing a section 1983 action to redress age discrimination that violates the Equal Protection Clause?
If that sounds familiar, it's because that is essentially the same issue presented in Madigan v. Levin. The Supreme Court granted certiorari in that case, the parties briefed it, and the Court even heard oral arguments . . . but, wah wah . . . the Court dismissed Madigan v. Levin as improvidently granted.

The Court obviously has an interest in this issue, so the prospects for a cert grant in Hildebrand seem pretty strong. The Court will consider the case at its February 20, 2015 conference.

Tuesday, January 27, 2015

Miles on Employee Hanbooks

Straight from the shameless self-promotion department, it's my latest article: Three Times a Good Employee Handbook will Save Employers in the latest issue of Pennsylvania Business Central. Enjoy!

SCOTUS Kills Yard-Man

When you were growing up, did you ever have a teacher return an assignment and tell you everything you did wrong... but not give you the right answer? Instead, you were just supposed to try again and figure it out for yourself? That's pretty much what Justice Thomas just did to the 6th Circuit.

On Monday, the Supreme Court issued its opinion in M&G Polymers USA LLC v. Tackett. Sometimes, employers and unions enter into collective bargaining agreements (CBAs) that provide health care benefits for retirees. The CBA usually has a set lifespan (three years is common). The issue here is whether the retiree health care benefits continue only until the CBA dies, or until the retirees die. Put another, did the CBA create a vested right to a lifetime of health care benefits?

Justice Thomas,
official portrait public domain.
Of course, the parties could have just specified the answer in the CBA - but what fun would that be? The Sixth Circuit, through a series of cases (Yard-Man and its progeny) created a presumption in favor of the retiree benefits vesting (and therefore continuing indefinitely) if a CBA was silent on the issue. Cue Justice Thomas for a unanimous court:
As an initial matter, Yard-Man violates ordinary contract principles by placing a thumb on the scale in favor of vested retiree benefits in all collective-bargaining agreements. That rule has no basis in ordinary principles of contract law.
In other words, "You know that Yard-Man presumption you've been applying? STOP IT!" But the Court never actually gives us the answer (i.e. whether the benefits vested or not in this case).

Justice Thomas just tells the lower courts to apply "ordinary contract principles," and then reminds us of some of them. For example, "the traditional principle that courts should not construe ambiguous writings to create lifetime promises" and "the traditional principle that 'contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement.'"

Justice Ginsburg (joined by the rest of the liberal bloc) wrote a concurring opinion, noting some other principles. Like, "[C]onstraints upon the employer after the expiration date of a collective-bargaining agreement . . . may arise [from] implied terms of the expired agreement." And, if the CBA is ambiguous, the Court "may turn to extrinsic evidence—for example, the parties’ bargaining history" to determine if the parties intended the health benefits to vest.

Now go back and try again, 6th Circuit, and remember what Justice Thomas told you.

Monday, January 26, 2015

Third Circuit on Public Employees, Free Speech, and Mistakes of Fact

This is my snow-shoveling half-time break:

A New Jersey police officer picked up a campaign yard sign for a mayoral candidate. A fellow police officer spotted him in the act. The next day, one of his supervisors confronted him about supporting this candidate, and the officer was immediately demoted to "walking duty." This sounds like a pretty good First Amendment retaliation case, huh?

Nope. It turns out it isn't. The Third Circuit issued its opinion in Heffernan v. City of Paterson last week. The police officer was picking up a campaign sign . . . but he was picking up the campaign sign for his bedridden mother. He testified that he was not "politically involved" and had no intention of conveying a particular political message. Therefore, he did not engage in protected free speech. And he was not actually affiliated with the campaign at all (goodbye, free association claim).

But wait . . . are you telling me that a public employer can retaliate against an employee for supporting a political candidate if it turns out they're wrong about his actual support? Pretty much. The Court expressly rejected this "perceived support" theory ("where the employer’s retaliation is traceable to a genuine but incorrect or unfounded belief that the employee exercised a First Amendment right.").

Game over. Employer wins, employee loses.

Friday, January 23, 2015

SCOTUS on Whistleblowers and Regulations

Earlier this week, the Supreme Court issued its opinion in DHS v. MacLean.

In 2003 (sometimes these case take a while to unfold!), a federal air marshal received a text that TSA was " cancelling all overnight missions from Las Vegas until early August." Just days earlier, the TSA had briefed the marshal about terrorist plots to hijack passenger flights. So, believing that cancelling the flights was dangerous and illegal, the marshal contacted a reporter and disclosed the cancellation of the missions. The TSA found out and fired him.

The marshal claimed the TSA violated federal statutory whistleblower protections under 5 U. S. C. §2302(b)(8)(A). The government claimed that the firing fell under an exception to the whistleblower protection for disclosures "specifically prohibited by law." The "law" they relied upon was a TSA regulation that prohibited disclosure of "sensitive security information."

Bottom line? The Court held that a regulation did not count as a "law." Therefore, even if the marshal violated the regulation, he did not violate the law. Therefore his activity was protected by the whistleblower statute.

Fun sidenote: Justice Sotomayor (joined by Justice Kennedy) authored a dissent in which she cites Justice Scalia's book, Reading Law: The Interpretation of Legal Texts (co-authored by Bryan Garner). Nice plug, Justice Sotomayor!

Thursday, January 22, 2015

Lawffice Space - Now on CaseText

I am excited to announce that CaseText now features content from Lawffice Space. What is CaseText, you ask? Well, it has text... from cases. And much, much more. The site has a lot of community-sourced info (it's like crowd-sourcing but the "crowd" is limited to people awesome enough to make the cut into the community... at least that's what I'm telling myself).

Community members can upload annotations, blog entries, briefs, etc. CaseText also provides sub-communities within the site. So, you can easily check out the latest Employment Law content (they have a wide selection ranging from Tax Law to Maritime Law).

Another cool feature is that the site will link cases to commentary. So, for example, I recently wrote this post about the Third Circuit's analysis of unconscionable arbitration agreements in Nino v. Jewelry Exchange, Inc. If you check out the page for that case in CaseText . . . go ahead, I'll wait . . . now look to the right and you should see my blog post linked to that case. Pretty cool, right?

So far, my only complaint is that they've only imported my blog entries going back to October 2014. I hope this thing catches on because there's a lot of potential.


Employment Law Blog Carnival #ELBC Hits Wage and Hour Insights

If you love the Employment Law Blog Carnival (aka #ELBC) - and who doesn't? - then great news! The January edition is now available on Wage and Hour Insights: Employment Law Blog Carnival: Awards Season Edition. Thanks to Doug Hass for hosting. Check out his rundown of the greatest hits from around the web.