Friday, March 17, 2017

Lawffice Links - Wages, Statutory Interpretation, and the Oxford Comma

We hold these truths to be self evident, that paragraph indentations should be reduced from .5 to .3, that one period between sentences is better than two, and that you should always use the Oxford comma.

As I sometimes do with issues that have already been blogged to death, I drop some Lawffice Links instead of re-hash:
Finally, if you're still not quite sure what an Oxford comma is, then I hope this will help:

Monday, March 13, 2017

11th Circuit on Sexual Orientation Discrimination Under Title VII

On Friday, the Eleventh Circuit Court of Appeals issued its opinion in Evans v. Georgia Reg. Hosp. The plaintiff alleged that she was discriminated against on the basis of her sexual orientation in violation of Title VII. Of course, Title VII does not specifically list "sexual orientation" as a protected class, so:
Not official use.
Evans next argues that she has stated a claim under Title VII by alleging that she endured workplace discrimination because of her sexual orientation. She has not. Our binding precedent forecloses such an action. Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) (“Discharge for homosexuality is not prohibited by Title VII . . . .”). “Under our prior precedent rule, we are bound to follow a binding precedent in this Circuit unless and until it is overruled by this court en banc or by the Supreme Court.” Offshore of the Palm Beaches, Inc. v. Lynch, 741 F.3d 1251, 1256 (11th Cir. 2014) (internal quotations omitted).
* History lesson: Some District Courts from the Fifth Circuit split off to form the Eleventh Circuit in 1981, so the Eleventh Circuit treats prior Fifth Circuit decisions as binding precedent.

That's not necessarily game over though. As the Court recognized, employees may bring claims under Title VII for discrimination or harassment on the basis of gender nonconformity (or "sex stereotyping"). The Court did not provide much analysis on this issue, but held:
Evans’s pro se complaint nevertheless failed to plead facts sufficient to create a plausible inference that she suffered discrimination. See Surtain, 789 F.3d at 1246. In other words, Evans did not provide enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the alleged adverse employment actions.
So, it affirmed the District Court's dismissal of her discrimination claim. However, it did reverse the lower court on one key issue - the lower court had dismissed her claim with prejudice. The Eleventh Circuit noted that the plaintiff has a right to amend her complaint once unless amendment would be futile. As she could plausibly plead additional facts to state a claim for gender nonconformity, the plaintiff was granted an opportunity to amend.

I suspect we'll see a petition to rehear this en banc (a request for the entire Eleventh Circuit to hear the case).

Thursday, March 9, 2017

Employers and the transgender bathroom issue

Most of the focus on the transgender bathroom issue has been placed on students. What about employees? As I've covered previously, there's some intersection between the student and employee issues. Put simply: both Title IX (students) and Title VII (employees) prohibit "sex" discrimination and the ultimate legal question is whether that requires transgender individuals to be permitted to use the bathroom that matches their gender identity (regardless of birth or physiological sex).

The Supreme Court was going to review a Fourth Circuit decision holding that "sex" for purposes of bathroom usage means "gender identity" under Title IX. However, that decision was based on deference to an Obama administration Dear Colleague letter jointly issued by the Departments of Justice and Education. Since then, the Trump administration issued its own Dear Colleague letter, withdrawing the Obama administration guidance. So, without even considering the underlying issue, the Supreme Court sent the case back to the lower courts to rule on the issue without the 'thumb on the scale' of the Obama administration guidance. We should now see how the lower courts rule based on the statutory text, and whether SCOTUS will still be interested on appeal.

Where does this leave employers? Well, the EEOC has adopted the position that employees must be permitted to use the bathroom that matches their gender identity. Unlike the Title IX guidance for students, the Trump administration has not withdrawn the EEOC's employer guidance yet. And, in fact, that guidance is based in part on an actual EEOC ruling (Lusardi v. Dept. of the Army), which cannot be as easily wiped away as a Dear Colleague letter.

I'll continue to track this issue as it develops. For now, at least at the federal level, the current EEOC position is that employers must allow employees to use the bathroom that matches their gender identity.

Thursday, March 2, 2017

Those Casey Affleck Sexual Harassment Complaints

Casey Affleck (attribution)
It feels like there's a new awards show every single Sunday these days. I have proudly watched precisely 0 of them. That said, it's my understanding that Casey Affleck (brother of Ben, who is currently Batman) won the Academy Award for Best Actor this past weekend.

Apparently, this has generated some controversy because of past sexual harassment lawsuits filed by two women, the Director of Photography and a Producer on some stupid movie about Joaquin Phoenix becoming a rapper. For those of you who like lurid details about prostitutes, propositions, and penises (unplanned alliteration!), you can check out the two Complaints here and here, courtesy of The Daily Beast.

Monday, February 20, 2017

Good employment lawyers vs. great employment lawyers

Grading papers for my employment law class forced me to think through what separated the good papers from the great papers; and then, that got me thinking "what separates great employment lawyers from good employment lawyers?" Here's what I came up with:

Good employment lawyers take the law and apply it to your business. Great employment lawyers take your business and mold it to the law. 

"Great empty platitude!" you exclaim as you rush to make the motivational posters with that slogan printed over a lighthouse. Okay, okay - let's use an example.


An employer goes to an employment lawyer and explains that she has two employees that work 60 hours per week for $10/hour (so she pays them each $600/week or $1,200/week combined).

Good employment lawyer

The good employment lawyer focuses on the law and how to comply with it. The good employment lawyer immediately spots the problem here: The Fair Labor Standards Act (FLSA) requires the employer to pay its employees overtime at a rate of 150% of their regular rate for hours over 40 worked in a workweek.

The good employment lawyer politely explains that the employer must pay each employee $15/hour for the last 20 hours of each work week, or $700/week each for a total of $1,400/week combined. The employer can comply with the FLSA for just $200 extra per week - Problem solved!

Great employment lawyer

The great employment lawyer focuses on the business, and how to get the work done, while still complying with the law. The great employer immediately spots an alternative solution. If the employer hires a third worker, then the three employees will each work 40 hours and the employer will not have to pay any overtime premium. The cost is $1,200/week for all three. In other words, the employer still gets the same productivity (120 hours of work) at the same cost, but now she is also complying with the FLSA.

(Yes, I know - the super duper lawyer will note the costs and risks associated with bringing on a third employee beyond his or her wage - but for purposes of illustration, this simplistic example will do.)

A great employment lawyer focuses on your business and understands how to best fit your work into the legal framework.

Thursday, February 16, 2017

Lawffice Links - Some labor news

A few labor stories of interest:
  • Long-rumored, but official as of yesterday: Andy Puzder withdrew his nomination for Secretary of Labor. He had a slew of problems, including a housekeeper who worked for him illegally, advertising campaigns for his burger joints that were perceived as sexist, many viewpoints that conflicted with those of the prior administration's DOL, allegations (since recanted) of domestic abuse, and he he was reportedly not enjoying the nomination process. 
  • You may recall some controversy when President Obama's NLRB went after Boeing for allegedly "deciding to transfer a second airplane production line from a union facility in the state of Washington to a non-union facility in South Carolina." The NLRB later dropped the case. 

Tuesday, February 7, 2017

SCOTUS nominee Gorsuch on extended leave as a reasonable accommodation

I don't usually cover two-year old decisions from outside of my jurisdiction, but this case has (1) a hot employment law topic; and (2) the opinion was written by Judge Gorsuch, President Trump's nominee to the Supreme Court. The decision is Hwang v. Kansas State University.

The first two sentences concisely state the issue and the holding - I therefore already like this guy's writing style:
Must an employer allow employees more than six months' sick leave or face liability under the Rehabilitation Act? Unsurprisingly, the answer is almost always no.
I should note that Kansas State is covered by the Rehabilitation Act because it receives federal funding - however, the same analysis from this case would presumably be applicable to private employers covered by the Americans with Disabilities Act (ADA).

Judge Gorsuch's recitation of facts demonstrates empathy for the plaintiff, while setting up the restrictions of the law:
Judge Gorsuch - courtesy Boston Herald
By all accounts, Grace Hwang was a good teacher suffering a wretched year. An assistant professor at Kansas State University, she signed a written one-year contract to teach classes over three academic terms (fall, spring, and summer). But before the fall term began, Ms. Hwang received news that she had cancer and needed treatment. She sought and the University gave her a six-month (paid) leave of absence. As that period drew to a close and the spring term approached Ms. Hwang's doctor advised her to seek more time off. She asked the University to extend her leave through the end of spring semester, promising to return in time for the summer term. But according to Ms. Hwang's complaint, the University refused, explaining that it had an inflexible policy allowing no more than six months' sick leave.
The Rehabilitation Act requires covered employers to reasonably accommodate qualified (defined as being able to perform the essential functions of the job) employees with disabilities.
There's no question she's a capable teacher, no question she's disabled within the meaning of the Act. But there's also no question she wasn't able to perform the essential functions of her job even with a reasonable accommodation. By her own admission, she couldn't work at any point or in any manner for a period spanning more than six months. It perhaps goes without saying that an employee who isn't capable of working for so long isn't an employee capable of performing a job's essential functions—and that requiring an employer to keep a job open for so long doesn't qualify as a reasonable accommodation.
 Judge Gorsuch did acknowledge that a shorter absence may justify leave as a reasonable accommodation: "Of course, an employee who needs a brief absence from work for medical care can often still discharge the essential functions of her job." Distinguishing between the two situations can potentially be difficult. Judge Gorsuch notes some factors for consideration, including "the nature and length of the leave sought, and the impact 'on fellow employees.'"

Again, showing some sympathy for the plaintiff, while describing the confines of the law:
Still, it's difficult to conceive how an employee's absence for six months—an absence in which she could not work from home, part-time, or in any way in any place—could be consistent with discharging the essential functions of most any job in the national economy today. Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation. Ms. Hwang's is a terrible problem, one in no way of her own making, but it's a problem other forms of social security aim to address. The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work—not to turn employers into safety net providers for those who cannot work.
All told, it's a fairly employer-friendly opinion. That said, it seems to be the right result, and strikes a balance between acknowledging the unfortunate circumstances of the employee while recognizing that the Rehabilitation Act does not provide for the remedy she sought.

I have read a few of Judge Gorsuch's opinions and have been impressed by his writing style. His opinions are readable, but he still provides technical legal analysis.