Tuesday, April 17, 2018

When does an attorney-client relationship exist?

This issue has popped up in my social media feeds a lot over the past day or so. Apparently, it has something to do with President Trump, a porn star, the president's attorney, and Sean Hannity . . . I'm a little behind on, well, everything, but I can provide some info on the law in Pennsylvania.

First, even if no attorney-client relationship exists, attorneys also owe some duties to prospective clients (See, Rule 1.18). An official comment to the rule explains:
Sean Hannity by Gage Skidmore
A person becomes a prospective client by consulting with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter. Whether communications, including written, oral, or electronic communications, constitute a consultation depends on the circumstances. For example, a consultation is likely to have occurred if a lawyer, either in person or through the lawyer’s advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response.  . . . . In contrast, a consultation does not occur if a person provides information to a lawyer, such as in an unsolicited e-mail or other communication, in response to advertising that merely describes the lawyer’s education, experience, areas of practice, and contact information, or provides legal information of general interest. Such a person communicates information unilaterally to a lawyer without any reasonable expectation that a client-lawyer relationship will be established, and is thus not a ‘‘prospective client.’’
But what about an actual attorney-client relationship? Obviously, an attorney and client can enter into an express representation agreement. However, there can also be an implied attorney-client relationship. The Pennsylvania Superior Court has held:
Absent an express contract, an implied attorney/client relationship will be found if 
1) the purported client sought advice or assistance from the attorney; 
2) the advice sought was within the attorney's professional competence; 
3) the attorney expressly or impliedly agreed to render such assistance; and 
4) it is reasonable for the putative client to believe the attorney was representing him. 
Atkinson v. Haug, 622 A.2d 983, 986 (Pa. Super. Ct. 1993) (citing Sheinkopf v. Stone, 927 F.2d 1259 (1st Cir. 1999)).

In Atkinson, the Court concluded that no implied attorney-client relationship occurred, noting that no fee arrangement was entered into; no retainer or fees were paid; and there was no discussion of the legal implications of the issue at hand.

That's more complicated than you hoped, isn't it?

Wednesday, April 11, 2018

9th Cir.: Prior salary is no defense to an Equal Pay Act claim

Earlier this week, the Ninth Circuit issued its opinion in Rizo v. Yovino.

The Equal Pay Act generally requires men and women to receive equal pay for equal work. Defining "equal work" can be tricky, but the statute directs us to look to whether the work requires "equal skill, effort, and responsibility, and which [is] performed under similar working conditions." Sounds simple enough, but there are a million (rough estimate) legitimate reasons why employer may pay two people who do substantially equal work different wages.

Not official use.
That's where the EPA's exceptions come in. The statute specifically names three:
(i) a seniority system; 
(ii) a merit system; [and] 
(iii) a system which measures earnings by quantity or quality of production.
But wait! There's one more . . . "(iv) a differential based on any other factor other than sex." We call this last one the "catchall." However, the "catchall" does not in fact catch *all*, and "any factor other than sex" does not really include *any* factor other than sex.

The Ninth Circuit held:
[W]e now hold that prior salary alone or in combination with other factors cannot justify a wage differential. To hold otherwise—to allow employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum—would be contrary to the text and history of the Equal Pay Act, and would vitiate the very purpose for which the Act stands.
That is an extraordinarily broad holding. As a concurring opinion points out:
[T]he majority unnecessarily, incorrectly, and contrary to Supreme Court precedent, insists that prior salary can never be a factor in a pay system that falls within the fourth exception to the Equal Pay Act. Accordingly, I concur separately because following the Supreme Court’s guidance, I agree with the Tenth and Eleventh Circuits, as well as the EEOC, the agency charged with enforcing the EPA, that prior pay may be a component of a pay system that comes within the fourth exception recognized in 29 U.S.C. § 206(d)(1). A defense to a pay discrimination claim will lie if the employer meets its burden of showing that its system does not perpetuate or create a pay differential based on sex. We should not have reached out to hold otherwise, particularly as there was no need to do so.
We will see whether the breadth of the holding catches the eye of the Supreme Court. 

Thursday, April 5, 2018

Trump flipper-offer files secondhand First Amendment claim

Yeah, that's not a title I thought I'd ever type here. I think it's pretty accurate though. Remember that lady who got fired for giving President Trump's motorcade the middle finger. Of course you do, but just in case, here ya go:


That's not a hand signal.

Welp, now she has filed a lawsuit (Complaint included). On what basis? Well, two really. One is pretty dull . . . she claims she was promised four weeks of severance but only received two. A basic breach of contract claim. This could be important if it nullifies a separation agreement that waived all claims.

The second claim is the big one. She claims "wrongful termination" in violation of public policy. In other words, no law specifically prohibits her termination . . . but she wants the Court to make a special exception to the general rule of "at will" employment (the employer or the employee can terminate the employment relationship for any reason or no reason).

Obviously there are statutory exceptions to "at will" employment; as one example, Title VII says you can't fire someone because of their race. However, courts rarely create exceptions (under the common law, or judge-made law). Here, the plaintiff asserts a sort of secondhand First Amendment claim.

Public employers cannot retaliate against employees when they speak as private citizens on matters of public concern. I guess that's arguably what the plaintiff here did . . . but she's not a public employee. So, she claims that her government contractor employer fired her because it was afraid of retaliation from the government (and *that* retaliation would be prohibited by the First Amendment).

It's clever. I don't know enough about Virginia common law to weigh in on its viability. I can say that the Pennsylvania Supreme Court interprets the public policy exception to at will employment *very* narrowly. I guess we'll see. It sounds a little like a long shot to me.

Fun fact: While I was in law school, I interned for a judge at the Fairfax County Circuit Court where this suit was filed.


Monday, April 2, 2018

SCOTUS: Service advisors are exempt from FLSA overtime requirements

The Supreme Court issued its opinion in Encino Motorcars, LLC v. Navarro today.

Justice Clarence Thomas
Generally, the Fair Labor Standards Act (FLSA) requires employers to pay employees "overtime" (time and a half) for time spent working beyond 40 hours in a workweek. There are tons of exceptions, including one for "any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles.”

Justice Thomas wrote that a "service advisor is obviously a 'salesman'" because (s)he sells goods or services. Service advisors also primarily service cars because:
They “mee[t] customers; liste[n] to their concerns about their cars; sugges[t] repair and maintenance services; sel[l] new accessories or replacement parts; recor[d] service orders; follo[w] up with customers as the services are performed (for instance, if new problems are discovered); and explai[n] the repair and maintenance work when customers return for their vehicles.”
Sure, they're not physically repairing the car, but they're still an integral part of the servicing process.

Justice Ginsburg, writing on behalf of the "liberal bloc" of four Justices, dissented.

If you like language debates, there's some interesting discussion about whether the exception covers a "salesman . . . primarily engaged in . . . servicing automobiles" or whether the distributive canon requires reading the exception to "match[] 'salesman' with 'selling' and 'partsma[n] [and] mechanic' with 'servicing.'"

Tuesday, March 20, 2018

Did McDonald's just dodge the joint employer bullet?

Not official use.
It was no secret. The Obama NLRB wanted to expand the concept of joint employment and McDonald's had a target on its back... but they ran out of time. The NLRB did expand joint employment, but that decision was overturned by the Trump NLRB (it's currently in a state of flux).

The Obama NLRB brought a case against McDonald's with the goal of holding them liable as a joint employer of its franchisee's employees. It would have been huge for franchise businesses across the country. Then, yesterday, news broke that McDonald's reached a settlement with the Trump NLRB. According to the reports, McDonald's would compensate employees who allege they were terminated in retaliation for participating in the "Fight for 15 (dollars per hour)." However, the important part is that "The proposed settlement does not include a determination that McDonald's is a joint employer of the workers."

We'll see what happens. It sure seems like - after all of this excitement the past few years - we're gonna end up right back where we started before the Obama NLRB set out on its expansion mission.

See also: I’m lovin’ it: McDonald’s settles joint employer case with NLRB from Jon Hyman.

Wednesday, March 7, 2018

6th Cir.: Title VII prohibits discrimination against transgender and transitioning employees

Earlier today, the Sixth Circuit held in EEOC v. Stephens:
Not official use.
Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII.
Title VII prohibits "sex" discrimination but makes no mention of transgender or sexual orientation. However, this is the latest in a line of cases broadening the meaning of sex discrimination, and utilizing gender stereotyping theories, to afford protection to LGBT employees.

Just last week, the Second Circuit held that Title VII prohibits sexual orientation discrimination.

Monday, March 5, 2018

SCOTUS to take on yet another arbitration case

The Federal Arbitration Act (FAA) generally allows parties to enter into binding contracts to arbitrate disputes that may arise later. However, under Section 1, the FAA does not apply “to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1.

Last week, SCOTUS granted certiorari (agreed to hear) New Prime Inc. v. Oliveira. The case presents two interesting FAA issues:

1. If the parties agree to arbitrate any disputes (including the arbitrability of the dispute), then who decides whether the exemptions in Section 1 apply? A court? Or an arbitrator?

2. Does Section 1's exemption for certain "contracts of employment" apply to independent contractors?

We should get answers next term. The case involves an independent contractor truck driver and could have important implications for arbitration agreements in the transportation industry.