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.


Thursday, February 2, 2017

3d Cir. on FMLA retaliation and the honest belief defense

On Monday, the Third Circuit issued a precedential opinion in Capps v. Mondelez Global, LLC. The employee had been certified for intermittent FMLA leave. One day he called off from work, invoking his intermittent FMLA leave... and proceeded to go to the local pub and get hammered.

On the way home, wouldn't you just know it? He gets nabbed for a DUI (.339% BAC!). He spends the night in jail, and then calls off the next day too. Well, the employer had no idea anything strange was afoot, until an HR manager saw the DUI in the newspaper. The employer started to piece together that the arrest date and the employee's other court dates matched dates that he was supposedly using FMLA leave. Suspecting dishonesty, they fired him.

Of course, the employee claims it was all a misunderstanding and that he just so happened to have leg pain on the days of his arrest and hearings. So, an FMLA lawsuit ensued. The Court recognized the employer's "honest belief" (aka "mistaken belief") defense. The Court noted that the employee had been recertified for FMLA for about a decade without incident.
[T]he undisputed evidence indicates that when Oxenford and McAvoy reviewed the criminal court docket related to Capps’ DUI case, the docket reflected that the arrest date and “court dates” appeared to coincide with days on which Capps had taken FMLA leave. Although Capps argues that Mondelez was mistaken in its belief that Capps misused his leave or was otherwise dishonest with regard to the leave taken, there is a lack of evidence indicating that Mondelez did not honestly hold that belief.
So, the Court concluded that the employer was entitled to summary judgment.

Frankly, it's not clear that the employer was even mistaken in this case. The point is that it does not matter if the employer was right or wrong, so long as the employer really believed the non-retaliatory reason for the termination.

Thursday, January 19, 2017

NEW CHART: EEOC Charge Data from FY 1997-2016

The EEOC just released its enforcement and litigation data for FY 2016. You know what that means... updated chart! Overall, the number of charges increased for the second straight year to 91,503 (still far short of 99,000+ in 2010, 2011, and 2012).

Not included in my chart: Retaliation, which leads the way with 42,018 charges, (45.9% of all charges filed); GINA, with only 238 charges; Color (3,102); and Equal Pay Act (1,075).


Monday, January 16, 2017

SCOTUS on Employee Class Action Waivers in Arbitration Agreements

On Friday, the Supreme Court granted certiorari in a ton of cases (16 for people who prefer precision). The exciting news on the employment law front is that the Court will hear three (now consolidated) cases addressing the issue of class action waivers in the employment context.

As the Petition in NLRB v. Murphy Oil USA puts it, the issue is:
Whether arbitration agreements with individual employees that bar them from pursuing work-related claims on a collective or class basis in any forum are prohibited as an unfair labor practice under 29 U.S.C. 158(a)(1), because they limit the employees’ right under the National Labor Relations Act to engage in “concerted activities” in pursuit of their “mutual aid or protection,” 29 U.S.C. 157, and are therefore unenforceable under the saving clause of the Federal Arbitration Act, 9 U.S.C. 2.
In other words, can employers enforce agreements that will force employees into individual arbitration and forego collective or class actions?

The Supreme Court has been very arbitration-friendly over the years, but often in closely divided cases. Justice Scalia was one of the voices in the narrow majority. This one could come down to President Trump's appointment (assuming (s)he gets confirmed in time to hear the case).

Thursday, January 12, 2017

Circuit split: 3d Cir. recognizes ADEA subgroup disparate impact claims

The ADEA protects employees over the age of 40 from age discrimination. In Karlo v. Pittsburgh Glass Works, LLC, the Third Circuit analyzed whether a subgroup of employees older than 40 can bring a disparate impact claim:
Disparate-impact claims in ADEA cases ordinarily evaluate the effect of a facially neutral policy on all employees who are at least forty years old—that is, all employees covered by the ADEA. In this case, plaintiffs claim to have identified a policy that disproportionately impacted a subgroup of that population: employees older than fifty.
Not official use.
If you counted the employees older than 40 but younger than 50, it "washed out the statistical evidence of a disparity."

The Court provided in depth analysis of the issue, but one of the primary factors was the specific protection provided by the ADEA. "[T]he ADEA proscribes age discrimination, not forty-and-over discrimination." The Court relied heavily on the Supreme Court's determination that a 56 year old employee could file a discrimination claim if he was fired and replaced by a significantly younger worker... even if that comparitor was over 40. See, O'Connor v. Consolidated Coin Caterers Corp.

Ultimately, the Third Circuit concluded that plaintiffs may bring disparate impact claims where a policy disproportionately impacts a subgroup of employees older than 40 (e.g. employees odler than 50), even if the statistical evidence would not support a disparate impact theory when applied to the entire class of employees over 40. This creates a circuit split, as multiple other circuit courts have reached the opposite conclusion. Circuit splits often draw SCOTUS attention - we'll see if this is the case that gets the issue to SCOTUS.