Wednesday, June 30, 2010

Third Party or Associational Retaliation

Yesterday, the Supreme Court granted certiorari, agreeing to hear Thompson v. North American Stainless on appeal from the Sixth Circuit en banc. Lawffice Space readers may remember my analysis of this case in Fire the Fiancé - Third Party Retaliation Claims.

The Petition for Certiorari (via SCOTUSblog) lists the question presented to the Supreme Court as:
Section 704(a) of Title VII forbids an employer from retaliating against an employee because he or she engaged in certain protected activity. The questions presented are:

(1) Does section 704(a) forbid an employer from retaliating for such activity by inflicting reprisals on a third party, such as a spouse, family member or fiancé, closely associated with the employee who engaged in such protected activity?

(2) If so, may that prohibition be enforced in a civil action brought by the third party victim?
For Third Circuit (binding in Pennsylvania federal courts) analysis of this issue, see Fogleman v. Mercy Hospital.

In Fogleman, the Court addressed ADEA, ADA, and PHRA retaliation claims brought by the son of a man who filed an age and disability discrimination lawsuit. Son and father worked for the same employer which fired the son after the father's claims. The Court held that:
[T]he District Court was correct to reject as a matter of law [son's] third-party retaliation claims brought under the ADEA, the PHRA, and the first anti-retaliation provision of the ADA, 42 U.S.C. § 12203(a).
Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 570 (3d Cir. 2002). However, the Court also held that "[Plaintiff] may assert his third-party retaliation claim under this section (the 'second anti-retaliation provision' 42 U.S.C. § 12203(b)) of the ADA."

And now, it appears the Supreme Court will weigh in on associational retaliation.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Monday, June 28, 2010

McDonald v. Chicago - SCOTUS, Guns, GMU and Employers

It was a big day at the Supreme Court today. It will take a few entries for me to work through everything I'd like to address, but I'll start with this post and McDonald v. Chicago. The Supreme Court held that the Second Amendment is incorporated through the Due Process Clause of the Fourteenth Amendment. In other words, the Second Amendment applies to state and local governments.

What's that got to do with me and/or employment law? Glad you asked...

  • First, on page 2 footnote 2 of Justice Stevens' dissent (p. 124 of the .pdf), he cites the George Mason University Civil Rights Law Journal! Once upon a time, I was the Managing Editor of this fine publication. A Supreme Court citation is a big deal for GMU and the Journal.
  • Second, it clears one of the hurdles on the path to establishing Second Amendment Unemployment Compensation
  • Third, the case was not the "employment law blockbuster" that some had hoped for. The theory was that the Supreme Court would protect a right to bear arms through the privileges or immunities clause thus bringing that forgotten clause back from the dead to provide all kinds of new (sleeping?) rights. Only Justice Thomas embraced this theory and he only addressed the right to bear arms.

Random sidenote: Justice Scalia references Justice Stevens by name in every single paragraph of his concurring opinion save one. That one paragraph continues to discuss "he" who is clearly still Justice Stevens.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Sunday, June 27, 2010

Delegation Provisions in Arbitration Agreements

Last week, in the Lawffice Space entry SCOTUS Addresses Arbitrability Determination, I blogged about that day's Supreme Court decision in Rent-A-Center v. Jackson. For employers, the case should highlight the importance of delegation provisions. The Supreme Court defined a delegation provision as "an agreement to arbitrate threshold issues concerning the arbitration agreement."

Arbitration agreements, like any contract, will vary based on the individual circumstances involved in making the agreement. That said, it may be useful to read the delegation provision at issue in Rent-A-Center (found in-full in the Petitioner's Brief):
The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to any claim that all or any part of this Agreement is void or voidable.
In Rent-A-Center, the Supreme Court held that delegation provisions are enforceable and employers may compel arbitration of gateway issues under them (unless a party specifically challenges the delegation provision in District Court, then the Court decides).

With that in mind, employers may wish to decide if they want to delegate gateway issues to an arbitrator. If so, employers may wish to check their arbitration agreements to make sure they include a delegation provision.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Tuesday, June 22, 2010

FMLA for Same Sex Parents

Big news on the Family and Medical Leave Act (FMLA) front today. As explained by a Department of Labor (DoL) press release:
[A]n employee who intends to share in the parenting of a child with his or her same sex partner will be able to exercise the right to FMLA leave to bond with that child.
Same sex partners may also be entitled  to FMLA leave to care for a child with a serious health condition.

The DoL accomplished this feat through Administrator's Interpretation No. 2010-3. The FMLA defines "son or daughter" to include "a child of a person standing in loco parentis." The DoL's analysis concluded:
Based upon a thorough examination of the relevant factors, it is the Administrator’s interpretation that either day-to-day care or financial support may establish an in loco parentis relationship where the employee intends to assume the responsibilities of a parent with regard to a child.
And how does this affect homosexual employees? Well, for example:
[A]n employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.
Be careful employers, it's not just for same sex partners! The interpretation specifically contemplates grandparents and aunts, but the bottom line is that "In all cases, whether an employee stands in loco parentis to a child will depend on the particular facts (emphasis added)."

It might be time to dust off that FMLA policy to make sure you've got in loco parentis covered.

See also, Jon Hyman on Ohio Employer's Law Blog - DOL permits FMLA leave for gay parents (and others too)

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Monday, June 21, 2010

SCOTUS Addresses Arbitrability Determination

The Supreme Court issued a somewhat complicated one today, but I will do my best to simplify its holding. The case is Rent-A-Center v. Jackson (opinion .pdf). The setup:
  • Employer and employee enter into an arbitration agreement that provides that an arbitrator (not a federal district court) will decide the enforceability of the agreement.
  • Dispute arises - employee alleges employment-discrimination and files a claim in federal district court.
  • Employer files a motion to compel arbitration under the agreement.
  • Employee says the agreement is "clearly unenforceable in that it is unconscionable."
And so arises the question: Who decides the employee's argument? Is the issue of unenforceability due to unconscionability properly before the district court? Or is that for the arbitrator?

Without boring you with the gory Federal Arbitration Act (FAA) details, let's cut to the holding. It's a two-parter with a subtle distinction:
If a party challenges the validity . . . of the precise agreement to arbitrate at issue, the federal court must consider the challenge before ordering compliance with that agreement.
Example: If the clause mandating that enforceability of the agreement be determined by an arbitrator was itself entered into via fraud in the inducement - then the Court decides. However,
if a party challenges the enforceability of the agreement as a whole, the challenge is for the arbitrator.
Get it? Challenge to the enforceability of the agreement to arbitrate enforceability -> Court. Challenge to agreement as a whole -> arbitrator.

For previous Lawffice Space coverage of this case, see: Arbitrability of Arbitrability Determination Under Arbitration Act Hits SCOTUS, and Arbitration Agreement Unconscionability Determination Hits SCOTUS.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Sunday, June 20, 2010

Quon - Scalia's Warning for Employers

Unless you've been living in a cave (a cave that doesn't have access to Lawffice Space), you already know that the Supreme Court decided City of Ontario v. Quon last week. The Court found a public employer's search of its employee's text messages on an employer-issued pager was Constitutional under the circumstances. The search was A-OK because it was for a "legitimate work-related purpose" and not excessive in scope.

But in a concurring opinion, Justice Antonin Scalia provides a helpful warning to employers. Call it part of his Nino Cares program. He's worried that litigants will use some excess commentary (dicta as the insiders call it) from the majority opinion as a,
"basis for bombarding lower courts with arguments about employer policies, how they were communicated, and whether they were authorized, as well as the latest trends in employees’ use of electronic media."
In other words, employers should assess:
  • Policies impacting employee privacy;
  • How those policies are communicated to the employees (in writing, with an employee-signed acknowledgment form wouldn't hurt);
  • Authorization for supervisors to essentially "overrule" written policies (supervisors should know the policies and conduct business in accordance with them - "Going Rogue" may sell a bajillion copies of books, but it's not something that helps employers enforce written policies); and
  • Keep up with emerging technologies (think: cell phones, gadgets, social media, etc.) in terms of awareness and current policies.
It's not every day employers get free advice from Justice Scalia, employers may wish to heed his warning.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Thursday, June 17, 2010

Text Message Search and 2-Member NLRB Results Today

The Supreme Court issued not one but two employment law opinions today.

Ontario v. Quon
First, the Court issued an opinon in City of Ontario v. Quon (.pdf). The Court held that a government employer's search of an employee's text messages was reasonable under the circumstances. The text messages were on an employer-issued pager and the employer's policy explicitly told employees that they had no expectation of privacy. The search did not violate the Fourth Amendment because it was for a "legitimate work-related purpose" (determining whether the department needed to increase the character limit on its service plan) and not excessive in scope.

Important to note: "The Court does not resolve the parties’ disagreement over Quon’s privacy expectation." Ummm, that was the most interesting part! Oh well, I suppose caution is a virtue in the Court (sometimes).

Previous coverage on Lawffice Space: Text Message Privacy Hits SCOTUS, and Text Privacy at SCOTUS: Privacy, Policies, Privilege, and E-Discovery.

New Process Steel v. NLRB
The Supreme Court also issued its opinion in New Process Steel v. NLRB (.pdf). In the simplest terms: 3-Member NLRB Good; 2-Member NLRB Bad. Unfortunately, the NLRB had been (sort of) operating with two members for quite awhile. Per employment lawyer Jon Hyman via Twitter, "26 months of NLRB decisions down the tubes."

Interesting to note: The majority was comprised of Justices Roberts, Alito, Scalia, Thomas... and Stevens! Justice Stevens actually authored the opinion and was the swing vote, siding with the "conservative bloc." Meanwhile, Kennedy (the usual "swing vote") dissented with Breyer, Ginsburg, and Sotomayor

Previous Coverage on Lawffice Space: NLRB Already Here? Returns? In the Distant Future?, 2-Member NLRB Hits SCOTUS, and New Regime - SCOTUS, EEOC, NLRB.

That leaves two employment law cases left. After I've had time to digest the opinions, I will likely (no guarantees) post some more analysis.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Wednesday, June 16, 2010

Redefining Clothes - DOL Edition

Clothes were redefined today. I wish I could tell you I meant that it some ultra-trendy way involving French designers and possibly Mugatu... but sadly I don't. I mean it literally. I mean it in the nerdy kind of way that only a lawyer, in 5 pages of analysis, case citations, and federal statutes, can mean it. The Department of Labor issued an administrator's interpretation on Section 3(o) of the Fair Labor Standards Act, 29 U.S.C. § 203(o), and the definition of "clothes."

First, why does the definition of "clothes" matter?
Section 3(o) of the Fair Labor Standards Act (FLSA) provides that time spent "changing clothes or washing at the beginning or end of each workday" is excluded from compensable time under the FLSA if the time is excluded from compensable time pursuant to "the express terms or by custom or practice" under a collective bargaining agreement. 29 U.S.C. § 203(o).
So, how did "clothes" change today? It no longer includes certain protective equipment.
[The] exemption does not extend to protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job.
This will effect the compensability of such donning and doffing (to use the hip FLSA lingo).

The administrator also concluded
[T]hat clothes changing covered by § 203(o) may be a principal activity. Where that is the case, subsequent activities, including walking and waiting, are compensable.
And that's your fashion update - FLSA DOL style.

For more info see Daniel Schwartz's take on Connecticut Employment Law Blog; and Ross Runkel's coverage on LawMemo.

Image: Nancy Leppink, Wage and Hour Deputy Administrator (and author of the interpretation that is the subject of this entry). Public Domain as work of the U.S. Government.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Monday, June 14, 2010

Pending SCOTUS Employment Law Cases

I took a quick glance at the SCOTUSblog list of undecided Supreme Court cases this morning to see what's left on the employment law front. By my count, there are three four (see update below) clearly employment law cases left:

New Process Steel v. NLRB: The Court will likely decide whether a 2-member NLRB can decide cases under the NLRA. For Lawffice Space coverage see: NLRB Already Here? Returns? In the Distant Future?, 2-Member NLRB Hits SCOTUS, and New Regime - SCOTUS, EEOC, NLRB.

City of Ontario v. Quon: The Court will likely address public employee privacy rights in text messages on an employer-issued pager. For Lawffice Space coverage see: Text Message Privacy Hits SCOTUS, and Text Privacy at SCOTUS: Privacy, Policies, Privilege, and E-Discovery.

Rent-A-Center v. Jackson: The Court should determine whether a federal district court must "decide the threshold question of arbitrability when a plaintiff challenges an arbitration agreement as unconscionable." On Lawffice Space: Arbitrability of Arbitrability Determination Under Arbitration Act Hits SCOTUS, and Arbitration Agreement Unconscionability Determination Hits SCOTUS.

Of course, a creative attorney can turn just about any case into an employment law case. For example, the Supreme Court will decide whether the Second Amendment right to bear arms is incorporated (applied to state action) in McDonald v. Chicago. If decided on "privileges or immunities" grounds, it could be an employment law blockbuster (though oral arguments indicate such a result is not likely). In theory, it could also lead to Second Amendment Unemployment Compensation.

And you never know when a commerce clause case could restrict government's authority to regulate, or a University free speech case will impact public employment, or a procedural question on attorney's fees or pleading standards will shake the employment law world. We'll just have to wait and see.

Drop a comment if I missed any cases you think should be on here, or if you'd like to show off your own creative lawyering by turning a not-employment law case into an employment law case.

Update: Ross Runkel alerted me to my omission of Granite Rock Company v. Teamsters ("Whether a federal court has jurisdiction to determine collective bargaining agreement formation and whether a §301(a) action is available against a union that is not a direct signatory to the collective bargaining agreement." - SCOTUSBlog). Mr. Runkel is hereby rewarded with a link to his coverage of the case on LawMemo. Thank you!

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Thursday, June 10, 2010

Lewis and Ledbetter Distinguished

Why did Lewis come out differently from Ledbetter? Lawffice Space readers are already aware of Lewis v. City of Chicago (Opinion | Overview | Lewis and Ricci Combined | More Thoughts). And anyone who follows employment law is aware of Ledbetter v. Goodyear.

Lewis held that a disparate impact claim accrues upon the application of an employment practice or policy - in other words, the limitations period does not begin solely upon the initial adoption of the practice, but resets upon the application of that practice.

By contrast, Ledbetter held that the statute of limitations for a disparate treatment claim does not reset upon the application of a prior discriminatory act. Specifically, the limitations period does not reset upon the issuance of a paycheck that is lower - effectively tainted - because of past discrimination. It was a controversial decision which was essentially mooted by the enactment of the Fair Pay Act.

So why did Arthur Lewis win, while Lilly Ledbetter lost? Some (apparently including Congress) would argue that Ledbetter was just wrong. The Supreme Court, however, offered this explanation in Lewis:
For disparate-treatment claims—and others for which discriminatory intent is required—that means the plaintiff must demonstrate deliberate discrimination within the limitations period. But for claims that do not require discriminatory intent, no such demonstration is needed.
In short, the Court points out that the gravamen of a disparate treatment claim is intent; so, subsequent effects are irrelevant if there's no discriminatory intent (such as upon the routine issuance of a paycheck). Meanwhile, a disparate impact claim is based on effects. Hence, disparate impact claims can occur upon the mere application of a practice, even absent discriminatory intent, because it's the effects that matter.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Monday, June 7, 2010

The Combined Lesson of Lewis and Ricci

My latest entry on ELinfonet is up: Learning Lewis but Remembering Ricci. In this post, I combine the Supreme Court's opinions in Lewis v. City of Chicago and Ricci v. DeStefano (Lawffice Space series on each opinion) into a comprehensive game plan for employers.

Court-watchers may recall that the Supreme Court faulted the fire department in Ricci for not following through on its testing despite racial disparities in the results. Then in Lewis, the Court faulted another fire department because it kept using the test results despite the disparate impact.

My new post helps sort out when to GO and when to STOP.

See also, my other posts on ELinfonet.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Sunday, June 6, 2010

If at First You Don't Succeed...

Sure, it's a tad cliche to point out that "If at first you don't succeed, try try again." In The Drunkard's Walk: How Randomness Rules Our Lives, however, Leonard Mlodinow provides a few great literary examples of the premise:
John Grisham's manuscript for A Time to Kill was rejected by twenty-six publishers . . . . Dr. Seuss's first children's book, And to Think That I Saw It on Mulberry Street, was rejected by twenty-seven publishers. And J.K Rowling's first Harry Potter manuscript was rejected by nine.
(Page 10). Publishers passed on three of the bestsellers of the modern era sixty-two times! The authors, of course, highlight the benefit of persistence. Rowling alone went on to sell more than 400 million copies in the Harry Potter series (not to mention the popular movie series).

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Wednesday, June 2, 2010

The Too-Pretty Protected Class?

Last month, I blogged about the Un-pretty Protected Class - an argument for protecting the less attractive from employment discrimination. Little did I know that there was an even bigger problem brewing: discrimination against the overly attractive! Business Insider has the scoop on Woman Says Citibank Fired Her Because She Was Too Hot.

Now, before you roll your eyes... too late? OK, well now that you've had a chance to roll your eyes, read this brilliant (and I am not being sarcastic) comment from the "hot" woman:
Where I'm from, women dress up—like put on makeup and do their nails—to go to the supermarket... I was raised very Latin. We're feminine. A woman in Puerto Rico takes care of herself.
Do you see what just happened there?

You see, the headline is that she's "too hot" (not a protected class); but she frames the problem as her employer not allowing her to be feminine, the way women from Puerto Rico are... you know, Latin women. All of a sudden we have possible sex, gender-stereotyping, color, race, and maybe even national origin*-based discrimination claims! All of which are protected under Title VII.

Sometimes, it's all in the way you frame the issue!

HT: Stephanie Thomas aka ProactiveStats via Twitter.

*Some courts have assumed arguendo that Puerto Rican is a "national origin" for Title VII claims; see Feliciano de la Cruz v. El Conquistador Resort and Country Club, 218 F.3d 1 (2000).

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Tuesday, June 1, 2010

More Thoughts on SCOTUS Lewis v. Chicago

Last week, I blogged about the Supreme Court's opinion in Lewis v. City of Chicago. The Supreme Court held that disparate impact claims arise upon the application of an employment practice as opposed to the practice's initial adoption.

I spoke with Judy Greenwald of Business Insurance magazine regarding the case and she published a pair of articles featuring a quote from that conversation.

First, in Black Firefighter Applicants Can Sue Chicago: Court; and then, in High Court Lowers Bar on Discrimination Suits:
Philip K. Miles III, an associate with State College, Pa.-based McQuaide Blasko Attorneys at Law, said the ruling "should serve as a reminder to employers that they need to look at their practices, even if they've been using them for years, to make sure they're not having a disparate impact now."
I think that is the main takeaway for employers: assess your practices for disparate impact.

This week I have a few more posts on Lewis planned. Specifically: Combining Lewis and Ricci (last year's famous white New Haven firefighters case ); and explaining why Lewis and Ledbetter (controversial case that spawned the Fair Pay Act) are consistent.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.