Monday, June 26, 2017

SCOTUS on appeal of MSPB "mixed cases"

Okay, the subtle nuances of the procedural minefield of federal employee discrimination cases is not exactly the kind of SCOTUS blockbuster we usually anticipate at the end of the Court's term . . . but it's what we got.

When federal employees have employment discrimination claims, they may take them to the Equal Employment Opportunity Commission (EEOC). When federal employees suffer certain serious adverse employment actions (like termination) they may take them to the Merit System Protection Board (MSPB). When a federal employee complains that the serious adverse employment action was based on discrimination, (s)he may bring a "mixed case" to the MSPB.

Let's say you have a mixed case, and the MSPB dismisses the case based on jurisdictional grounds. Does the employee appeal to the Federal Circuit or to the federal district court? Or must the employee split the case, and appeal the MSPB jurisdictional ruling to the Federal Circuit and the discrimination claim to the district court?

Is anyone still awake? In Perry v. MSPB, the Supreme Court (per opinion by Justice Ginsburg) held:
[I]n mixed cases . . . in which the employee (or former employee) complains of serious adverse action prompted, in whole or in part, by the employing agency’s violation of federal antidiscrimination laws, the district court is the proper forum for judicial review.
Justice Gorsuch weighed in with his first dissent (joined by Justice Thomas). It was a - to the surprise of no one - a strict, literal, and narrow interpretation of the text of the statutory framework.

Monday, June 19, 2017

Retaliation, "but for" causation, and the prima facie elements

Back in 2013, in UTSMC v. Nassar, the Supreme Court held in no uncertain terms that "Title VII retaliation claims must be proved according to traditional principles of but-for causation." That seems simple enough - but wait, earlier this year the Third Circuit clarified/complicated things a bit.

In Carvalho-Grevious v. Del. St. Univ., the Third Circuit held:
Not official use.
At the prima facie stage, a plaintiff need only proffer evidence sufficient to raise the inference that her engagement in a protected activity was the likely reason for the adverse employment action, not the but-for reason.
Wait, doesn't that conflict with the Supreme Court's decision? Not exactly . . .

As the Third Circuit explained, the "but for" causation standard is the plaintiff's ultimate burden of persuasion. In other words, that's the thing the employee will ultimately have to prove to win the case. Whereas, the prima facie elements ((1) protected activity; (2) adverse action; and (3) causal connection) are just the initial burden of production in a broader burden-shifting framework. So, the bar for establishing the causal connection - and shifting the burden of production, but not persuasion, over to the employer to proffer a legitimate non-retaliatory reason - is the lower "likely reason" standard.

While the Nassar "but for" standard is a blessing for employers at trial, it does not appear to be carrying much weight in the summary judgment context (at least here in the Third Circuit).

Friday, June 9, 2017

Easy come, easy go - DOL pulls independent contractor and joint employer guidance

On Wednesday, the U.S. Department of Labor released the following press release:
Not official use.
U.S. Secretary of Labor Alexander Acosta today announced the withdrawal of the U.S. Department of Labor’s 2015 and 2016 informal guidance on joint employment and independent contractors. Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law. The department will continue to fully and fairly enforce all laws within its jurisdiction, including the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.
Technically, this does not change the law; however, courts will give some deference even to "informal guidance." As compared to the now-pulled guidance, the Trump administration will most likely:

  • View classification in a way that makes workers more likely to be independent contractors; and
  • Makes putative-employers less likely to be "joint employers."
So far, no specific replacement guidance has been proposed. Also, unlike informal guidance, actual agency decisions have a little more staying power. For example, on NLRA issues, employers are still stuck with the "refined" joint employer standard from Browning-Ferris.

Monday, June 5, 2017

Independent Contractor or Employee? - Construction Workplace Misclassification Act

Another wrinkle in the convoluted mess that is employee/independent contractor classification law:

As I've blogged previously, courts (and agencies) use different factors and standards to analyze classification depending on the underlying issue. So, there are different tests for wage and hour claims vs. unemployment compensation claims vs. workers' compensation claims.

The Commonwealth Court of Pennsylvania recently "published" (meaning it's now precedential) its 2016 opinion in Hawbaker v. WCAB. The Court analyzed worker classification for purposes of workers' comp . . . but with a twist: Pennsylvania's Construction Workplace Misclassification Act.

Under the Construction Workplace Misclassification Act, for purposes of unemployment compensation and workers' compensation, a worker in the construction industry is an independent contractor only if:
(1) The individual has a written contract to perform such services. 
(2) The individual is free from control or direction over performance of such services both under the contract of service and in fact. 
(3) As to such services, the individual is customarily engaged in an independently established trade, occupation, profession or business.
43 P.S. § 933.3. The Act goes on to identify several factors for determining whether "the individual is customarily engaged in an independently established trade, occupation, profession or business."

The Court affirmed the WCAB's holding that the worker in this instance was an independent contractor. However, three interesting tidbits from the ruling:
  • The Act does not require a separate contract for each job;
  • The Act does not require a contract for a specified duration; and
  • Although the putative employer had stopped assigning jobs to the claimant for awhile, the contract did not terminate - the Court looked to the text of the contract (and its provisions regarding termination) to conclude that the contract had not terminated. 
The Court's opinion highlights the importance of written agreements when using independent contractors.

Thursday, May 25, 2017

Tomi Lahren settles lawsuit against Beck and Blaze

Tomi Lahren (Twitter profile pic)
A month ago, I wrote about Tomi Lahren suing The Blaze and Glenn Beck for allegedly firing her for expressing a vaguely pro-abortion message on The View. I didn't want to leave you hanging, so . . . Update! The case settled. FoxNews has some of the details:
Lahren's attorney, Brian Lauten, said in a statement Monday that his client had been released from her employment contract and denied her access to the Facebook page TheBlaze had set up for her. He said that page and its millions of followers now belong to Lahren.  
In return, the conservative talker must remove videos she made for TheBlaze from the page and return them. Other terms remain confidential.
Now you don't have to wander through life wondering what ever happened to that lawsuit.

Monday, May 22, 2017

Transgender ADA claim survives motion to dismiss

In Blatt v. Cabela's Retail, Inc., a Pennsylvania transgender employee filed an ADA discrimination and retaliation claim. She alleged that "she requested a female nametag and uniform and use of the female restroom as accommodations for her disability." Her alleged disability was "Gender Dysphoria, also known as Gender Identity Disorder."

Here's the problem . . . the ADA specifically excludes "gender identity disorders" from  the definition of "disability." 42 U.S. Code § 12211. The defendant contended that her case should be dismissed because her alleged disability is specifically excluded by the statute. The plaintiff claimed that this exclusion is unconstitutional because it violates her equal protection rights.

The Court applied the "constitutional-avoidance canon" - the idea being that courts should try to interpret statutes in a way that avoids resolving constitutional issues - to conclude:
In view of these considerations, it is fairly possible to interpret the term gender identity disorders narrowly to refer to simply the condition of identifying with a different gender, not to exclude from ADA coverage disabling conditions that persons who identify with a different gender may have —such as Blatt’s gender dysphoria, which substantially limits her major life activities of interacting with others, reproducing, and social and occupational functioning.
In other words, the Court interpreted the statutory exclusion of "gender identity disorders" so narrowly as to not cover what the plaintiff herself pleaded was a "Gender Identity Disorder." The Court went on to deny the motion to dismiss. The decision is likely not immediately appealable, but it's an issue that may find its way to the Third Circuit eventually.

Tuesday, May 2, 2017

2nd Circuit: Employer cannot fire employee for profanity-laced Facebook rant

Under the NLRA, employees cannot be fired for posting things like "Vote YES for the UNION!!!!" on Facebook - because the NLRA generally protects union organizing and support. However, even protected posts can lose their protection if they cross the line into "opprobrious" or "abusive" conduct.

In my employment law classes at Penn State, I have used a certain "go to" case to illustrate the high bar of establishing "opprobrious" conduct. The employee posted (earmuffs kids, it's about to get PG-13):
Bob (his supervisor) is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking  family!!!! What a LOSER!!!!   
Vote  YES  for  the  UNION!!!!!!
He got fired and filed a charge with the NLRB.

At one time, I told my class something like "can you believe it? An Administrative Law Judge (ALJ) actually held that this post was still protected! But, remember kids, that's just one ALJ . . . I doubt the NLRB itself would hold that an employer was not allowed to fire someone for this post." Then, in 2015, that speech changed to, "But remember kids, that's just one NLRB decision . . . I doubt a court would hold that an employer was not allowed to fire someone for that post."

Now, here we are. Last week, the Second Circuit upheld the NLRB decision in NLRB v. Pier Sixty, LLC. Yes, a Circuit Court of Appeals actually held that an employee could not be fired for calling his boss a "nasty mother fucker" and posting "Fuck his mother and his entire fucking family" on Facebook.

This seems facially absurd, but I'll offer a tepid defense of the Court's decision: (1) courts apply a deferential standard of review to NLRB rulings; (2) there was an upcoming union election and evidence of additional anti-union animus (the employer allegedly threatened to rescind benefits and terminate employees who voted for unionization); (3) other employees cursed all the time and did not get fired; and (4) the online forum (Facebook) did not disrupt the workplace.

But remember kids, that's just one circuit, and we live in the Third Circuit. Also, there's a new NLRB in town, so I doubt it would hold the same way (that said, see my dismal track record for predictions above).