Sunday, January 30, 2011

Thompson Media Blitz - SCOTUS 3rd Party Retaliation

Last week, the Supreme Court issued its opinion in Thompson v. N. Am. Stainless. My initial summary is available in SCOTUS Decides "Fire the Fiance" 3rd Party Retaliation. Expect more coverage throughout this week.

Additionally, I was quoted in Lawyers USA Online: Supreme Court allows third-party retaliation claims:
"Third-party retaliation claims had been fairly limited by circuit courts," said Philip K. Miles, an associate in the State College, Pa., office of McQuaide & Blasko, who practices labor and employment law and general civil litigation. "Now we have this ruling saying not only is it available, but we aren’t going to tell you when."

But the Court’s decision was not exactly a surprise, he said. The Supreme Court has been fairly consistent in upholding retaliation claims in a number of circumstances in recent years.
Check out the whole article for good coverage of the case (subscription required).

Also, I will be making my third appearance on The Proactive Employer podcast, airing Friday, to discuss the case. Details here.

OK, I think that's all the shameless self-promotion I have... at least for now.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Saturday, January 29, 2011

"Pretend" Robbery Presents Real Licensing Problem - COTW #25

Welcome to a belated edition of Case of the Week. This week's case presents a licensing decision from the New Hampshire Supreme Court. As the National Law Journal reported: Finally passing the bar, 'pretend' robber refused to admit practice.

The article details a 1992 law school graduate's unsuccessful struggle to obtain a license to practice law. The good news is that he finally passed the bar exam on his eighth attempt. Unfortunately for him, the Court was unwilling to look past certain "character and fitness" issues.

Perhaps most damning of all, were his criminal convictions, including an incident in which "the applicant had pulled a seven-inch knife on a store clerk in 1993 while, as he explained, he was 'pretending to be a robber.'" He described the incident as a "bad joke" on April Fool's Day. "He explained that he was writing a book at the time and wanted to see how the store clerk would react to seeing the knife." He had some other issues (see the article), but the knife incident and his explanation seem like tough obstacles to overcome.

This man's story provides a good reminder for aspiring lawyers that you need to do more than graduate from law school and pass the bar exam to practice law.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Tuesday, January 25, 2011

Proposed Pennsylvania E-Discovery Rules

Just last month I commented: "In Pennsylvania, we don't have e-discovery rules... we have discovery rules applied to electronically stored information." Well, that's all set to change (sort of) under proposed e-discovery rules from the Supreme Court of Pennsylvania Civil Procedure Rules Committee. A copy of the proposal is available here.

Most of the proposals are rather unremarkable. For example, Electronically Stored Information (ESI) is expressly added to "Documents and Things" subject to Requests for Production. The format may be requested and objected to, and if not specified may be produced "in the form in which it is ordinarily maintained or in a reasonably usable form." (suspiciously similar to the fed rules). A note provides that ESI requests "should be as specific as possible" and "Limitations as to time and scope are favored."

Pretty dull stuff, but as the preface emphasizes, "the core of the proposal is an explanatory comment." That comment expressly rejects the incorporation of federal e-discovery jurisprudence in favor of retaining the traditional proportionality discovery principles under Pennsylvania law. That standard is stated as:
(i) the nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake;
(ii) the relevance of electronically stored information and its importance to the court’s adjudication in the given case;
(iii) the cost, burden, and delay that may be imposed on the parties to deal with electronically stored information;
(iv) the ease of producing electronically stored information and whether substantially similar information is available with less burden; and
(v) any other factors relevant under the circumstances
If the rules are enacted it will be interesting to see how Pennsylvania law departs from federal law in e-discovery.

Major HT to my McQuaide Blasko colleague, Jon Stepanian, who has great coverage of this topic on Defense of Medicine: Pennsylvania Considers Electronic Discovery Rules.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Monday, January 24, 2011

SCOTUS Decides "Fire the Fiance" 3rd Party Retaliation


Earlier today, the Supreme Court issued a unanimous (minus Justice Kagan who did not participate) opinion in Thompson v. North American Stainless (opinion here). I previously covered the Sixth Circuit opinion in this case in Fire the Fiance - Third Party Retaliation Claims. To recap: Miriam Regalado filed a sex discrimination charge with the EEOC and her employer then fired her fiance, Eric Thompson, who worked for the same employer. Thompson then filed a retaliation lawsuit.

The Court decided two questions:
  1. Does firing Thompson, who did not file the initial charge, constitute unlawful retaliation?
  2. Does Title VII grant Thompson a cause of action?
The Court finds question one to be an easy one. Restating the standard established in Burlington N. & S. F. R. Co. v. White, 548 U. S. 53 (2006): "Title VII’s antiretaliation pro­vision prohibits any employer action that 'well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'" And, the Court states:
We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.
So, yes, firing the fiance constitutes unlawful retaliation.

The Court then turns to the "more difficult question" of whether Title VII actually affords Thompson a cause of action here. The Court holds that an individual may not sue unless he "falls within the 'zone of interests' sought to be protected" by Title VII. Applying this test, the Court notes that Thompson was an employee of the defendant and "the purpose of Title VII is to protect employees from their employers’ unlawful actions." Furthermore, Thompson was not "collateral damage" of the employer's unlawful act but rather the intended means of enacting its retaliation against his fiancee. So, yes, Thompson does have a cause of action.

Recall that oral arguments focused much attention on who exactly would be protected if Title VII provided a cause of action for  "third party" retaliation. As I asked in a blog entry on the subject, Who Gets Scalia's Kid Gloves? Well, Scalia wrote the opinion of the Court and offered this guidance:
We must also decline to identify a fixed class of relation­ships for which third-party reprisals are unlawful. We expect that firing a close family member will almost al­ways meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.
Put another way: Some people sometimes and other people other times. Sorry employers, it depends on the circumstances. The test, however, is the Burlington standard reiterated above.

Lastly, a quick note that Justice Ginsburg, joined by Justice Breyer, filed a concurring opinion to add that the Court's decision is "fortif[ied]" by the EEOC's Compliance Manual which is due some deference.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Friday, January 21, 2011

Constitution's "Informational Privacy" Hits SCOTUS - COTW #24

In two cases decided more than 30 years ago, this Court referred broadly to a constitutional privacy "interest in avoiding disclosure of personal matters."
And so began Justice Alito's opinion of the court in the Lawffice Space employment law Case of the Week, NASA v. Nelson. Federal contract employees objected to certain elements of NASA background checks, specifically questions about counseling or treatment for illegal drug use and open-ended questions directed to their references. Perfect opportunity for the Court to weigh in on the so-called right to "informational privacy." So, what did the Court decide?

It's a punt! The Court's analysis begins by "assum[ing], without deciding" that the Constitutional right to informational privacy exists. Even if it exists:
The Government’s interests as employer and proprietor in managing its internal operations, combined with the protections against public dissemination provided by the Privacy Act of 1974, 5 U. S. C. §552a, satisfy any "interest in avoiding disclosure" that may "arguably ha[ve] its roots in the Constitution."
In short, the Government had a legitimate interest in the information, and the Privacy Act helped protect the information from further disclosure. This is the second straight privacy case that the Supreme Court has decided without really addressing the expectation of privacy. See Ontario v. Quon from last year.

Two Justices on the Court took firm positions in concurring opinions. Justice Scalia tells us:
Like many other desirable things not included in the Constitution, "informational privacy" seems like a good idea—wherefore the People have enacted laws at the federal level and in the states restricting the government’s collection and use of information. But it is up to the People to enact those laws, to shape them, and, when they think it appropriate, to repeal them. A federal constitutional right to "informational privacy" does not exist.
And Justice Thomas added:
[T]he notion that the Due Process Clause of the Fifth Amendment is a wellspring of unenumerated rights against the Federal Government "strains credulity for even the most casual user of words."
OK, I'll go ahead and put you guys down as a "no" on informational privacy. I'll keep waiting for the rest of the Court to let us know where they stand.

End Note: The two cases referenced at the start are Whalen v. Roe, 429 U. S. 589, 599–600 (1977); and Nixon v. Administrator of General Services, 433 U. S. 425, 457 (1977).

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Tuesday, January 18, 2011

2 GINA Employee Handbook Action Items

As loyal Lawffice Space readers know, the Genetic Information Nondiscrimination Act (GINA) regulations took effect earlier this month. Although this has been a long time coming, some employers are still not prepared. Looking for easy action items to knock out? Here are two.

First, Title II of GINA prohibits employment discrimination on the basis of "Genetic Information." I'm going to go out on a limb and guess you already have an anti-discrimination policy protecting (at least) the Title VII, ADA, and ADEA protected classes. Just insert "Genetic Information" into your list. Voila! One step down.

Second, GINA prohibits employer's from requesting or requiring "genetic information." There is, however, a safe harbor for employers who lawfully request medical information (for example, under the FMLA exception) and provide the following disclaimer:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. 'Genetic information,' as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
Employers may wish to include a modified version that just says simply:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information to Employer or its representatives.
Is that so hard? Two easy steps employers can take to help comply with GINA. For a similar take, see Human Resource Blog.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Friday, January 14, 2011

Physicians' Assistants Entitled to Overtime - COTW #23

This week's employment law Case of the Week comes from a federal court in Pennsylvania (Eastern District): Cuttic v. Crozer-Chester Medical Center, 2011 WL 31399 (Jan. 5., 2011). The issue was whether physicians' assistants are exempt from the overtime provisions of the Fair Labor Standards Act (FLSA).

Ordinarily, employees are entitled to "time-and-a-half" for overtime (hours worked past 40 per week) under the FLSA. The defendant medical center argued that the physician assistants (PAs) were exempt as "bona fide professionals." Bona fide professionals must be 1. paid a salary; and 2. perform primary duties "[r]equiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction." Here, the PAs were paid an hourly wage. So game over right?

Not so fast! An exception from the salary requirement exists for employees who hold a license or certificate to practice medicine or any of its branches. The PA in question had a valid license so this sounds promising...

Alas, it was not meant to be. Despite the PA license, "[t]he DOL (Department of Labor) has consistently interpreted the regulations . . . to require a PA to satisfy both the duties test and the salary-basis test." The Court also cited DOL interpretative guidance stating that employees who "serve these [medical] professionals" must meet the salary requirement. Giving deference to the DOL interpretation, the Court held that the physician assistant in question was entitled to overtime.

The implications of this case for employers are clear: Classify your employees properly; Read the DOL guidance.

It has been a tough start to 2011 for medical centers as the Supreme Court held earlier this week that medical residents must pay Social Security tax (FICA). See Mayo Foundation v. U.S. For more coverage, see me colleague Jon Stepanian's post on Defense of Medicine:
Supreme Court Rules That Medical Residents Are Subject to Social Security Tax.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Tuesday, January 11, 2011

Charts of EEOC Charges 1997-2010

The EEOC released charge statistics for FY 2010 today. A few highlights:
  • A new record! Almost 100,000 charges filed, up 7.1% from last year.
  • GINA was counted for the first time. Only 201 charges were filed.
  • Disability (ADA) charges shot up 17%, passing Age discrimination to become the third most popular type of discrimination
  • Every type of discrimination saw more charges filed this year than last year.
Below is a chart depicting the number of charges filed each year from 1997 through 2010, broken down by type of discrimination. GINA has been left off as essentially a non-factor with no pre-2010 data. Total claims and retaliation are depicted in a separate chart.


And now the chart showing retaliation and total charges filed. You'll see that both have drastically risen in recent years:


Also, as I noted previously, there is a trend toward including more types of discrimination in individual claims.

And there you have it folks, the record year of 2010.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Types of Discrimination per Individual Charge on the Rise

I have a new entry up on ELinfonet: Charges Including More Types of Discrimination. It includes a chart showing an increase in the number of types of discrimination alleged per individual charge filed with the EEOC. Enjoy!

Monday, January 10, 2011

GINA Regulations Effective Today

Title II of the Genetic Information Nondiscrimination Act (GINA) prohibits employment discrimination on the basis of "genetic information." Additionally, GINA limits employer acquisition of genetic information. The EEOC issued a final rule providing GINA regulations in November, with an effective date of... 1/10/2011, today!

You can read the new regs in the Federal Register: Regulations Under the Genetic Information Nondiscrimination Act of 2008. I'm attending a GINA CLE (continuing legal education class) tomorrow so expect a more substantive post later in the week.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Saturday, January 8, 2011

Scalia: Not Original Intent but Original Meaning

The Constitution is the "supreme law of the land" so how we interpret that document is crucial to analyzing American law. Justice Scalia is a vocal advocate of "originalism," for which he is often praised, but also often criticized. Ann Woolner recently published an op-ed, Women Aren't People Under Scalia's Constitution, in which she criticized Scalia's originalism. There's just one problem... she doesn't understand Scalia's originalism. I hope this post will help clear up this common misperception.

As she described it:
Here we have a perfect example of what’s so very wrong about so-called originalism, the theory Scalia claims to follow. The idea is that the Constitution should be interpreted according to its authors’ original intent, no changes allowed.
(emphasis added). While some self-professed "originalists" subscribe to this theory, Justice Scalia is unquestionably not one of them.

In his book, A Matter of Interpretation, Justice Scalia clearly explains his preferred method of interpretation. On the issue of statutory interpretation Scalia offers this:
Government by unexpressed intent is . . . tyrannical. It is the law that governs, not the intent of the lawgiver . . . . Men may intend what they will; but it is only the laws that they enact which bind us.
(P. 17). Lest you think Scalia feels differently when interpreting the Constitution as opposed to statutes:
It is curious that most of those who insist that the drafter's intent gives meaning to a statute reject the drafter's intent as the criterion for interpretation of the Constitution. I reject it for both.
(P.38). So what's the bottom line:
What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.
(P. 38). I think that's a pretty concise explanation of the difference between Scalia's originalism and intent-based originalism. Scalia's main essay in A Matter of Interpretation is only 45 pages. I highly recommend it for anyone interested in this subject. His book also includes comments and criticism from leading scholars (Amy Gutmann, Gordon Wood, Laurence Tribe, Mary Ann Glendon, and Ronald Dworkin). For a different take, Justice Breyer published his own book addressing interpretation, Active Liberty.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Thursday, January 6, 2011

10-Year-Old Sexual Harassment - COTW #22

OK, by now you've already read the title. Just so we're all clear, this is not a statute of limitations case dealing with sexual harassment from ten years ago. In fact, a man in Maryland alleged that he was sexually harassed... by a ten year old female student at the public school where he used to work.

The case is Wilson v. Prince George's County Board of Education (opinion here). So, how did this young lady supposedly harass him?
Examples of the alleged incidents of "harassment" include, inter alia: that the student in question "bumped into him three times without saying excuse me," that the student’s "forearm touched his buttocks one time," and that the student verbally harassed him when one of the student’s peers allegedly told Wilson that "[the student] said [to say] hello."
You may have guessed already... this claim isn't going anywhere. In a victory for common sense, the Court noted:
Bumping or a touching on the buttocks of a grown male by a ten-year-old girl is far more likely the attention getting action of a young child than a sexual overture.
Ya think? Prior to filing suit, the Plaintiff was terminated for refusing to work because the student wouldn't sign a "contract" which the Court described as a restraining order.

In defense of my profession's reputation, I will point out that the Plaintiff was pro se (representing himself).

HT: Sami Asaad (@samiasaad) via Twitter.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Wednesday, January 5, 2011

EmployEE Law Blogs

You may recall that the ABA recently released its annual Blawg 100 for 2010. One of my Twitter contacts, Chris McKinney (@CJMcKinney), noted that all of the selections were employer, as opposed to employee, law blogs (while noting that he loves the ones the ABA selected... they're just employer-side). I asked him for a few suggestions of employee-side blogs and he was kind enough to provide me with a few via Twitter:
I've never really thought of Lawffice Space as being one or the other. I try to mix in something for everyone. If you know of any employEE-side blogs you'd like to add to the list just drop a comment below!

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Tuesday, January 4, 2011

Case Summary: Missett v. Hub International Pennsylvania, LLC

The latest Pennsylvania Bar Association Civil Litigation Update is out and it includes my case summary of Missett v. Hub International Pennsylvania, LLC: LLC that Acquires Membership Interests from Contracting LLC Has Standing to Enforce Restrictive Covenant Against Terminated Employee.

Catchy title, huh? Lawffice Space readers may recall that I covered this case extensively when it first came out:
If you're interested in a formal summary, however, just check out the case summary linked above.

Sidenote: I wrote the blog entries before knowing I would write the case summary and was assigned the case summary by someone who I am quite certain was unaware of the blog entries. I believe it was just a happy coincidence!

See also: My case summary of In re Bridgeport Fire Litigation in the same issue: Individual Class Members Have Standing to Move for Judge’s Recusal, and Recusal Motion Must Be Decided Prior to Issuing Substantive Orders. My McQuaide Blasko colleague, Jon Stepanian of Defense of Medicine fame, also has some summaries in there.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Monday, January 3, 2011

Brett Favre and Text Message Sexual Harassment

ABC News is reporting that two former New York Jets massage therapists have filed a sexual harassment lawsuit against Brett Favre in state court. The suit also names the New York Jets and the woman who hires the massage therapists for the team. No, this is not the infamous below-the-belt photos story... it's all new harassment.

The new case is another shining example of the potential for text message sexual harassment. Mr. Favre allegedly sent text messages stating "Brett here, you and Crissy want to get together, I'm all alone," and "Kinda lonely tonight, I guess I have bad intentions." The Plaintiffs claim they refused the advances and were never offered work with the Jets again.

A year and a half ago I blogged that text message harassment was no LOLing matter. While harassment is harassment regardless of the method of communication, text messaging presents two major problems: 1. There's a record of it; and 2. It's in the alleged perpetrators own words. For defendants, the messages are  almost impossible to deny, and they no doubt sound even worse in a courtroom than they did in the first instance.

New technologies, new liability risks. T-E-X-T Text Text Text! (that was my awful play on J-E-T-S Jets Jets Jets; I apologize).

Update (1/4/2011): A copy of the Complaint is now available here (via Deadspin).

HT: Rich Meneghello via Twitter for the heads up on the ABC News report and the copy of the Complaint.

Sidenote: I would be remiss if I didn't acknowledge a new employment law blog on the scene. One of my Twitter contacts, Eric Meyer (@Eric_B_Meyer) launched his new blog, The Employer Handbook, today. He also had some kind words for me in today's post and in his Thank You note. It should be a great resource for "businesses in PA, DE, NJ, and across the country."

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.