Wednesday, March 30, 2011

SCOTUS Hears Largest Employment Law Class Action Ever

Yesterday, the Supreme Court heard oral arguments in Wal-Mart v. Dukes. You can read the transcript here, and the audio should be available on the Supreme Court website on Friday.

The Court will determine whether a federal court may hear a class action brought by a handful of plaintiffs on behalf of potentially all women employed by Wal-Mart after December 26, 1998... some estimates have this number hovering around 1.5 million. Contrary to some reporting, the issue is not whether Wal-Mart is too big to sue. The issue is complex, but much better described as whether the female employees' claims have enough in common to justify hearing them as one lawsuit.

The Justices focused a lot of attention on trying to find something that could tie the employees together. Specifically, they sought a company-wide policy or practice that could possibly cause discrimination across all of Wal-Mart's stores across the country. I don't think the Justices ever found the answer they were looking for.

The Plaintiffs' attorney tried to argue the policy or practice was that: "Wal-Mart provided to its managers unchecked discretion" in making pay decisions, but also had a "very strong corporate culture that ensures . . . the Wal-Mart way." Justice Scalia was perplexed and "whipsawed" (his word):
On the one hand, you say the problem is that they were utterly subjective, and on the other hand you say there is a -- a strong corporate culture that guides all of this. Well, which is it? It's either the individual supervisors are left on their own, or else there is a strong corporate culture that tells them what to do.
No satisfactory explanation emerged with Scalia summing up, "If somebody tells you how to exercise discretion, you don't have discretion."

So, how will it come out? Justice Kennedy seemed to hint that he would apply the Monell standard in determining whether the class could be company-wide. Monell is a Supreme Court case (and now standard) holding that a municipality is not liable for its employees' violations of the Constitution unless the infraction was the result of some official policy or custom. I predict the Supreme Court will apply a similar standard and hold that Wal-Mart had no such company-wide policy or custom and the class will fail.

We shall see though...

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, March 28, 2011

FLSA Antiretaliation: Are Internal Complaints Protected in Pennsylvania?

Short Answer: YES

Last week, in Kasten v. St. Gobain, the Supreme Court held that the FLSA antiretaliation provision protects oral, as well as written, complaints. However, the Court declined to express any view on whether internal complaints to a private employer receive any protection. In my latest post on ELinfonet, I recommend that employers look for lower court precedent in their jurisdictions, and anticipate that courts which haven't addressed the issue will afford protection to internal complaints. So...

What is the current state of the law in Pennsylvania?

In Pennsylvania, several district court cases have afforded FLSA antiretaliation protection to internal complaints. I have not identified Third Circuit precedent directly on point, but the Pennsylvania district courts have relied heavily on the Third Circuit holding that the FLSA, particularly the antiretaliation provision, should be interpreted liberally. See Brock v. Richardson, 812 F.2d 121, 123 (3d Cir.1987).

The Western District has expressly held that "[a]n internal complaint is a protected activity for purposes of 29 U.S.C. § 215(a)(3)." Wildi v. Alle-Kiski Med. Ctr., 659 F. Supp. 2d 640, 664-65 (W.D. Pa. 2009); citing Chennisi v. Communications Constr. Group, LLC, 2005 WL 387594, at *2 (E.D.Pa. Feb. 17, 2005). The Western District "likewise [found] an informal complaint to an employer to be sufficient." Marriott v. Audiovox Corp., 2006 WL 3805145 (W.D. Pa. Dec. 22, 2006)(emphasis added). Finally, my home district (Middle District of Pennsylvania) "agrees" that the FLSA antiretaliation provision "affords employees who make informal complaints protection," including internal complaints to their employers. Dougherty v. Ciber, Inc., 2005 WL 2030473 (M.D. Pa. July 26, 2005).

So, it’s a clean sweep for internal complaint protection in Pennsylvania! I see no reason for Kasten to upset the status quo on this. And, if it goes to the Third Circuit, I think chances are that they will likewise afford protection to internal complaints (see my ELinfonet post linked above for my rationale).

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.

Are Internal FLSA Complaints Protected After Kasten?

Last week, the Supreme Court held in Kasten v. St. Gobain that the FLSA's antiretaliation provision protects oral complaints. Check out my latest ELinfonet entry: FLSA Protects Oral Complaints, But What About Internal Complaints? The post provides my best guess as to how courts will apply the FLSA antiretaliation provision when employees complain directly to their private employers.

Tune in to Lawffice Space later today for a post covering how federal courts in Pennsylvania have addressed this issue (every district court in PA has already addressed it).

Finally, Bob Fitzpatrick has a great post on his blog, Fitzpatrick on Employment Law. Check it out for a nice summary of the holding in Kasten as well as some nice analysis of how this case may impact jury instructions moving forward.

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, March 24, 2011

19-Days Off for Hajj as a Religious Accommodation - COTW #33

This week's employment law Case of the Week is a religious accommodation case filed in the Northern District of Illinois by the Department of Justice. DOJ brought the suit on behalf of Safoorah Khan, a former math lab school teacher who requested 19 days off to perform a Hajj. A Hajj is a pilgrimage required by Islam. Her request was denied and she notified the Board that she was leaving her position to take the trip.

The Washington Post had a nice article on this case earlier in the week. It highlights some of the political controversy surrounding the case. But, at its heart, this is a pretty straightforward accommodation case. Under Title VII, an employer has an obligation to provide reasonable accommodations for the sincerely held religious beliefs of its employees.

But, what is a classic defense in accommodation claims? Undue hardship. And, per the article at least, it looks like the school has an argument:
The school district, faced with losing its only math lab instructor during the critical end-of-semester marking period, said no.
19 days is a lot of time, and it sounds like she plays a unique role and the request fell at a particularly important time. Of course, you never know for sure which way the litigation is going to go, and there are plenty of other potential issues to consider. I'll let you know if I hear of any developments in this one.

Check out the Complaint provided courtesy of Eugene Volokh, who was quoted in the article, and he also has some nice analysis on his blog, Volokh Conspiracy.

UPDATE (10/15/2011): This case settled, read details here.

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.

EEOC Just Released Final Rule for ADAAA

The EEOC released its final rule for the Americans with Disabilities Act Amendments Act (final rule available here). I haven't had a chance to review it yet, but wanted to pass the final regs on to my readers as soon as possible. For some nice preliminary analysis see:

Wait Is Finally Over! EEOC Finalizes Regulations Interpreting ADAAA from HR Hero

Breaking: EEOC Releases Final Regulations to the ADAAA from Dan Schwartz of the Connecticut Employment Law 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.

Tuesday, March 22, 2011

BREAKING: SCOTUS Holds that Oral Complaints Receive Retaliation Protection Under FLSA

Earlier today, the Supreme Court issued its opinion in Kasten v. St. Gobain. Justice Breyer, writing for the 6-2 majority (no Justice Kagan in this one):
The Fair Labor Standards Act of 1938 (Act) sets forth employment rules concerning minimum wages, maximum hours, and overtime pay. 52 Stat. 1060, 29 U. S. C. §201 et seq. The Act contains an antiretaliation provision that forbids employers
"to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the Act], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee."
§215(a)(3) (emphasis added). We must decide whether the statutory term "filed any complaint" includes oral as well as written complaints within its scope. We conclude that it does.
Thus, the FLSA antiretaliation provision provides protection for oral as well as written complaints from an employee to the employer (Update: The Court declined to rule on the issue of whether a complaint may be filed with a private employer as opposed to the government. As I will explain in a follow-up post, it appears as though an employer-complaint will satisfy the standard enunciated in this case.).

Justices Scalia (joined by Justice Thomas) dissented, concluding:
The plain meaning of the critical phrase and the context in which appears make clear that the retaliation provision contemplates an official grievance filed with a court or an agency, not oral complaints—oreven formal, written complaints—from an employee to an employer.
I'll have more detailed analysis later this 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.

Monday, March 21, 2011

1st Amendment Petition Clause Employment Case Hits SCOTUS

On Tuesday March 22, 2011, the Supreme Court will hear oral arguments in an unusual public employee First Amendment case, Borough of Duryea v. Guarnieri. Rather than the typical free speech case, this case deals with public employees' right to petition. The First Amendment protects "the right of the people . . . to petition the Government for a redress of grievances."

Here, the public employee was a borough police chief who the Borough Council voted to dismiss in 2003. The Chief filed a grievance pursuant to a collective bargaining agreement which provided for binding arbitration. Following success at the arbitration, the Chief was reinstated. Then, the Council enacted a number of directives that prohibited the Chief from working overtime and directed him to "go home" at 3:00pm every day. The Chief claims these directives were in retaliation for filing the grievance.

The Chief filed suit in the Middle District of Pennsylvania and obtained a jury verdict in his favor. The Third Circuit upheld the jury verdict (but reversing a punitive damage award), and now the case heads to the Supreme Court. There's another issue before SCOTUS regarding retaliation for the Chief filing the lawsuit (as opposed to the grievance).

Per the employer's brief, the Question Presented is:
Can public employees sue their employers under the Petition Clause for adverse employment actions allegedly resulting from the employees' petitioning on matters of purely private concern?
It is well-established that public employees have limited First Amendment free speech rights to speak on matters of public concern, but this case may afford employees some rights in the realm of private concern. Although, it would likely be extremely limited to Petition Clause situations like that found here.

Stay tuned for future developments!

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, March 19, 2011

Lexington and Merlin Photos on the Facebook Fan Page

I decided to have a little fun with this weekend post by featuring two new photo albums on the Lawffice Space Facebook page (stop by and "Like" it if you like it).

Battle of Lexington
Last weekend, I visited family in Boston, Massachusetts. On the way out of town, we stopped in Lexington and I grabbed a number of photos. If you need to brush up on American history, the Battle of Lexington was the first combat in the American Revolution. It was really more of a skirmish than a major battle, but it's filled with historical characters, including John Hancock, Sam Adams and Paul Revere. You can view the entire Lexington photo album on the Lawffice Space Facebook page.







Merlin
Merlin is my cat, and the breakout star of Lawffice Space. He made his debut in my initial post on the Supreme Court's decision in Staub v. Proctor Hospital... the "Cat's Paw" case (where else?). He also appeared in a follow-up post on that case. Several people commented on Merlin, and now, he has an entire photo album to himself on Facebook.

Enjoy!

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, March 18, 2011

Prof. Shimmy and the Hubba Hubba Revue - COTW #32

Sheila Addison is a former assistant psychology professor at JFK University in California... she's also "Professor Shimmy" in a San Francisco burlesque show called the Hubba Hubba Revue. And to top it all off, she's also the Lawffice Space employment law Case of the Week!

Prof. Addison/Shimmy was terminated, allegedly via letter indicating that her alter ego night-act was the reason for her termination. The school claims she brought "public disrespect, contempt, and ridicule to the university." Her response? She filed this complaint in federal court in the Northern District of California.

She alleged multiple counts under California state contract and labor law, but she also filed suit under Title VII for sex discrimination and "harassment for failure to conform to gender norms." She claims a male professor "was performing in a one-man play . . . which included disrobing and partial nudity on stage" but was never disciplined.

Important lesson for employers: Treat all of your nude (or partially nude) employees the same or you might wind up in court! Another interesting aspect of this case is the professor's claim for discrimination based on political activity (which is apparently protected by California law). Per the Complaint, the Hubba Hubba Revue provides "political and social commentary on gender, sexuality, and body image stereotypes."

Never a dull moment in employment law! Below is a video purporting to be Professor Shimmy along with Twinkletoes McGee (yeah, I sense deep social commentary coming already!). It does not contain nudity but still may not be safe for work.



If the video is not displaying properly, click here to view online.

Hat Tip: Mason law classmate and fellow employment lawyer Derek Bottcher of Paul Hastings for passing along an Inside Higher Ed article on this story from earlier this week.

If you have a hot tip on a potential Case of the Week please contact me!

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, March 16, 2011

March Madness and the Workplace

AOL has a great article on March Madness and its impact on employers: Is March Madness Really Good for the Economy? Everyone loves the college basketball tournament (OK, maybe not everyone) but for some reason it starts on weekdays. Namely, this Thursday and Friday. By Saturday, a full half (more if you count the "play-in" games) of the teams are gone. Thursday and Friday may be employees' only shot to see their team play.

So, what do employers see? Well, according to the article: "hangovers, missed work, depression and other downsides." In fact,
viewership is expected to skyrocket to 8.4 million hours during the workday.... And the potential loss in productivity... could easily add up to $192 million worth of financial loss.
Ouch! What's an employer to do?

The article advocates turning March Madness into a bonding opportunity, which is great if you can afford to have everyone sit around and watch basketball for two days. Maybe that can be done for one key game for a local team. That still leaves plenty of other games to distract employees though. Other ideas include using March Madness as an incentive - Set up performance competitions with the winner earning the privilege of watching a game.

Or, employers could draw the hard line - redistribute Internet policies, monitor computer usage, and block certain sites. This all becomes harder when seemingly every employee has a smart phone. Remember when employers ruled the Internet at work? Those days are gone. Managers could also setup specific productivity targets that must be met, whether basketball is on or not (easier in some jobs than others).

The point is, there is plenty for employers to think about. And just when you think you've got everything covered... there's the office pool! I'll direct you to Dan Schwartz on that issue: Beware the Ides of March (But that Office Pool is Probably Okay).

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, March 15, 2011

Workplace Swearing and Bullying Seminar

Mark your calendars! On April 28, 2011, from 11:00 am - 12:30 pm Eastern, I will be presenting the HR Hero audio seminar: Curses, Sued Again: Avoid Legal Pitfalls with Swearing and Bullying. I'll hit a number of topics, including legal issues surrounding bullying, profanity, and racial slurs in the workplace. As an employer, how can your employees' words get you in to trouble (and by "trouble" I mostly mean "lawsuits") and what can you do about it?

Click the link above and select the "Ask a Question" tab if you have a question for me!

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, March 10, 2011

Charlie Sheen Files Suit - COTW #31

I had a serious case with a substantive legal issue all picked out for the Case of the Week, but... much like Hot Shots! Part Deux and Men at Work... Charlie Sheen ruined everything. He had to go and file a lawsuit today against Chuck Lorre and WB Studios. TMZ has a copy of the Complaint.

He included several contract-based claims, as well as a disability claim under the California Fair Employment and Housing Act (FEHA), and violations of the California labor code. Paragraph 87 features some comic relief with allegations that Mr. Lorre made vanity cards at the end of his shows (frankly, I don't know what this means) that included such statments as:
We employ a highly paid Hollywood professional who has years of experience with putting his life at risk. And sadly no, I'm not talking about our stuntman.
The Complaint also includes lyrics to a song Lorre wrote called "Hooker in the Closet." Sounds catchy!

Attorney Martin Singer filed the Complaint. I was really pulling for a Charlie Sheen pro se filing in which his alleged disability is Tiger Blood and perhaps a GINA claim for his Adonis DNA. It's a serious lawsuit though, and he claims damages in the amount of $100,000,000... not including interest, punitive damages, and attorneys' fees of course. "Ninth Step Productions" is a co-plaintiff... not sure who that is.

Hat tip to Jon Hyman for pointing me to the Complaint. He is currently celebrating successfully predicting a disability claim in Sheen's Complaint.

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.

What has the Supreme Court Done to Employer Investigations?

A few recent Supreme Court cases present major concerns for employers conducting internal investigations. This post will highlight a few of them.

The Defenseless Cat
In Staub v. Proctor Hospital, the Court held that an employer may be liable where "a supervisor performs an act motivated by [discriminatory] animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action." What does this have to do with investigations? Well, the Court also expressly held that an independent Investigation by the ultimate decisionmaker does not shield an employer from liability. Does this mean the investigation is worthless? Absolutely not, but it’s not the magic bullet that employers had hoped.

Intraoffice Relationships and Relatives
When employers are preparing to terminate an employee, and conducting an internal investigation, should they look at the employee’s relationships with co-workers? Or search for co-worker relatives? Under Thompson v. North American Stainless, an employee’s relation to an employee who engaged in activity protected by Title VII may create retaliation liability for the employer. It’s a tough call for employers… if they investigate the relationships, they may discover a potential retaliation claim and avert disaster by holding off on an adverse employment action. If, however, the employer intends to carry out the action anyway then it might be better that they don’t know about any relationships (tough to prove 3rd party retaliatory intent when you don’t even know about the employee’s relationship with a 3rd party).

Every Question Creates Potential Retaliation Plaintiffs
Every question you ask during a discrimination investigation could lead to a retaliation claim down the road. Why? In 2009, in Crawford v. Nashville, the Supreme Court held (per the syllabus):
[Title VII’s] antiretaliation provision’s protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation.
So the investigation itself may create employees who are protected.

Those are just a few Supreme Court opinions affecting employer investigations in the past few years (some, in the past couple of months). Investigations necessarily require a knowledge of the latest legal developments to avoid these pitfalls.

Image: 2010 Supreme Court, public domain as work of U.S. Government.

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, March 7, 2011

The FMLA Marriage Penalty

In Thompson v. North American Stainless, the Supreme Court recently held that an employee may bring a Title VII retaliation claim if he is fired because his fiancee, also a co-worker, filed a discrimination charge. Now, employers may be on edge about employees who have close relationships with one another.

I gave Thompson a fair amount of attention (OK, tons - See summary, quote in LawyersUSA, Proactive Employer podcast appearanceELinfonet post, oral arguments coverage, and even Circuit Court coverage). But it's not all sunshine and lollipops for co-worker couples (and it's not all doom and gloom for their employers). FMLA regulation 29 C.F.R. § 825.120 gives employers of married co-workers a special exception (or, perhaps a "penalty" to the married co-workers):
A husband and wife who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken for birth of the employee's son or daughter or to care for the child after birth, for placement of a son or daughter with the employee for adoption or foster care or to care for the child after placement, or to care for the employee's parent with a serious health condition. This limitation on the total weeks of leave applies to leave taken for the reasons specified as long as a husband and wife are employed by the "same employer."
So, imagine if Thompson actually did marry his fiancee and then they had a baby... actually, per the oral arguments, they are married and have a two-year old daughter. If his employer hadn't fired him, they could have limited the couple to 12 combined weeks for the birth of their child.*

* At least in theory. We would need more detail to know for sure. For example, whether the employer is a covered entity, whether an alternative basis for leave existed, etc.

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, March 3, 2011

Cat's Paw Redux - COTW #30

This week's employment law Case of the Week selection was a no-brainer... the Supreme Court's "Cat's Paw" opinion in Staub v. Proctor Hospital (opinion here). I already previewed the case when SCOTUS first granted cert., provided a brief summary of the Court's opinion earlier this week, and explained the origins of its unusual name. Now, I want to touch on some of the finer points of the Court's opinion.

The Prima Facie Case
First, a recap of the Court's main holding:
We therefore hold that if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.
As I noted on Tuesday, this likely applies to Title VII as well, but maybe not the ADEA.

The Supervisor... and Only the Supervisor?
Justice Scalia dropped a footnote in the Court's opinion, likely highlighting a future battleground in cat's paw litigation:
We express no view as to whether the employer would be liable if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision.
Scalia's opinion relies in part on tort law, requiring proximate cause. A co-worker may certainly be the proximate cause of an adverse employment action under some circumstances, right? Nino also relies in part on agency law, and a co-worker acting in the scope of his or her employment could certainly be an agent of the employer, right? And couldn't a co-worker satisfy this rationale found in the Court's opinion:
The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision.
I think there will be circumstances in which co-workers can create cat's law liability, but we shall see. Regardless, even supervisors must be acting within the scope of their employment to create liability (expressly noted in footnote four).

Affirmative Defenses
The Court expressly rejects a "hard and fast rule" that an independent investigation of the employee's discrimination shields the employer from liability. But, the employer will not be liable where the investigation "results in an adverse action for reasons unrelated to the
supervisor’s original biased action."

But perhaps there's still an opening for an affirmative defense tucked away in footnote four (carrying on the Court's tradition of putting important stuff in footnote four):
We also observe that [the employee] took advantage of [the employer's] grievance process, and we express no view as to whether [the employer] would have an affirmative defense if he did not.
Maybe an employee's unreasonable failure to take advantage of a grievance procedure will provide an affirmative defense? Something akin to the Faragher-Ellerth affirmative defense, perhaps?

Conclusion
Once again, the Supreme Court has answered a crucial employment law question while succeeding in raising even more questions. Can co-workers create cat's paw liability? Does this theory apply to ADEA cases? Is there a grievance procedure-based affirmative defense? These are just a few of the issues heading to the District and Circuit courts (and maybe one day the Supreme Court). Stay tuned!

Image: Another photo of my cat, Merlin, and his magnificent Cat's Paw.

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, March 1, 2011

SCOTUS Allows Cat's Paw Liability

About an hour ago, the Supreme Court issued its opinion in Staub v. Proctor Hospital, the so-called "Cat's Paw" case. Justice Scalia issued the opinion of the Court joined by all but Alito and Thomas, who concurred in the judgment in a separate opinion, and Kagan who did not participate. The Cat's Paw theory is that an employer can be held liable for "employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision."

The Court held that the employer will be liable under USERRA where:
  • A supervisor performs an act motivated by antimilitary animus;
  • The act was intended by the supervisor to cause an adverse employment action; and
  • the act is a proximate cause of the ultimate employment action.
Although Staub involves USERRA, protecting servicemembers from discrimination, Justice Scalia expressly noted in the opinion that "[t]he statute is very similar to Title VII." So I expect courts to apply this decision in Title VII cases, involving race, color, sex, national origin, and religion, as well. The decision is based on "motivating factor" statutory language though, so it may not apply to ADEA cases (see Gross v. FBL)... we'll see.

Image: That's my cat, Mr. Merlin. He's generally non-discriminatory except on the basis of whether you have food and/or treats for him. That is not a protected class under federal 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.

SCOTUS Denies Cert in Novartis FLSA Case

Yesterday, the Supreme Court denied certiorari (i.e. will not hear the case) in Novartis v. Lopes (click link for SCOTUSBlog coverage). The case would have resolved a circuit split regarding FLSA exemptions for pharmaceutical sales representatives. Specifically:
Whether . . . highly paid pharmaceutical sales representatives are [] covered by the FLSA’s administrative exemption . . . or the outside sales exemption.
See Novartis Petition. The Second Circuit from which this case arose held that the exceptions were inapplicable.

For my Pennsylvania readers, the circuit split arises from a previous ruling by our own Third Circuit, holding that the administrative exemption did apply to these reps. The SCOTUS case may also have resolved an issue regarding how much deference to afford an amicus brief from the Department of Labor.

I always appreciate a good FLSA case, so I'm a little disappointed that the Court won't hear this one. The FLSA casts broad exemptions that, as attorneys, we are expected to apply to almost any occupation one can think of. The more Supreme guidance, the better the employer's chances are of getting it right. I guess we'll have to wait for another case to come along.

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.