Tuesday, June 28, 2011

Facebook Post Not a "Serious" FLSA Compaint

Lilli Morse claimed that her employer failed to pay her overtime, and when she complained about it on Facebook, they fired her. Does she have a case? Not according to a Florida federal district court. In Morse v. JP Morgan Chase & Co., No. 8:11-CV-779-T-27EAJ (M.D. Fla. June 24, 2011), the Court dismissed the employee's FLSA claim that she was fired in retaliation for the Facebook post.

Why? Earlier this year, the Supreme Court held that oral as well as written complaints receive retaliation protection under the FLSA. But that doesn't mean any ole' gripe will count. From the Morse opinion, summarizing and liberally quoting Kasten:
The requirement that a complaint be "filed" is intended to provide the employer with "fair notice" that an employee "is in fact making a complaint about an act violation," rather than "just letting off steam." "[A] 'filing' is a serious occasion, rather than a triviality." "As such, the phrase 'filed any complaint' contemplates some degree of formality, certainly to the point where the recipient has been given fair notice that a grievance has been lodged and does, or should, reasonably understand the matter as part of its business concerns."
Well, when you put it that way, it makes the issue pretty easy to resolve:
Morse does not allege that she made anything close to a serious complaint to her employer. In fact, she never complained to her employer at all. She simply voiced her disagreement with her employer's payment practices on her Facebook page. This "letting off steam" falls far short of the activity protected by [the FLSA].
Claim dismissed. She still has a surviving claim for unpaid overtime wages though.

HT: Law360: JPMorgan Ducks Worker's Facebook Retaliation Suit

See Also:

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, June 27, 2011

BREAKING: SCOTUS Grants Cert. in Two Labor and Employment Law Cases

The Supreme Court issued an order granting certiorari (agreeing to review) in two labor and employment law cases this morning:

First, in Knox v. SEIU, the Petitioner presents the questions as (HT: SCOTUSblog):
1. May a State, consistent with the First and Fourteenth Amendments, condition employment on the payment of a special union assessment intended solely for political and ideological expenditures without first providing a Hudson notice that includes information about that assessment and provides an opportunity to object to its exaction?
2.May a State, consistent with the First and Fourteenth Amendments, condition continued public employment on the payment of union agency fees for purposes of financing political expenditures for ballot measures?
The second case is Coleman v. Maryland Court of Appeals, asking:
Whether Congress constitutionally abrogated states’ Eleventh Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act (FMLA).
Again, from the Petitioner's Brief, and see also, the SCOTUSblog case page.

Something to look forward next Supreme Court session!

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, June 24, 2011

Wal-Mart Class Action: 9-0 or 5-4? – COTW #46

Choosing this Case of the Week was a no-brainer. Even the mainstream media can’t stop buzzing about Wal-Mart v. Dukes (opinion). There appears to be some confusion though… was the Supreme Court unanimous (9-0)? Or was it the “traditional” 5-4 conservative split? [Actually, unanimous decisions are more “traditional” than any 5-4 split… but that’s another matter] The answer is: both!

In Wal-Mart v. Dukes, a handful of women sought to sue Wal-Mart for discrimination… on behalf of a class of some 1.5 million women who worked for the retail titan. Before they’re allowed to do that, the Court must certify the class. For a class to be certified, it must satisfy Federal Rule of Civil Procedure 23, subsection (a) and subsection (b). The Supreme Court agreed on one subsection… but not the other.

How was the Supreme Court unanimous?

I’d like to start with where the Supreme Court was unanimous. Unfortunately, that means taking the subsections out of order and starting with subsection (b). Now, there are multiple ways to satisfy this subsection. One way is under (b)(2):
[T]he party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.
(emphasis added). The Ninth Circuit certified the class using (b)(2). Here, the plaintiffs wanted to sue for back pay (monetary damages) though. Monetary damages are not “injunctive relief,” nor are they “declaratory relief.” The Supreme Court unanimously agreed that the Ninth Circuit was therefore wrong in certifying the class under (b)(2) (although the Court explained that there might be future situations in which monetary damages were incidental to injunctive or declaratory relief and could therefore be included under (b)(2)).

Instead, the class should have been analyzed under (b)(3) which requires, among other things, that a court decide whether “questions of law or fact common to class members predominate over any questions affecting only individual members.” Of course, there’s no reason to make that determination if the class doesn’t satisfy subsection (a), which brings us to…

Where the Supreme Court was Split

The five-Justice majority held that there was no reason to go back and analyze whether the class could be certified under (b)(3), because it didn’t even satisfy (a). Subsection (a) has a few requirements. At issue here, (a) requires that there exist “questions of law or fact common to the class.” Here, the 1.5 million potential claims just didn't have enough in common.

The Court explained that Wal-Mart had no nationwide discriminatory policy, in fact, it has a policy against discrimination. The Plaintiffs' evidence was insufficient to establish commonality:
  • Anecdotal evidence from 120 affidavits isn't enough to bring 1.5 million claims.
  • Statistical evidence of national and regional disparities was insufficient to show "store-by-store" disparity. For example, a regional disparity may be explained by only a handful of discriminatory stores/managers and not a region-wide (let alone nationwide) policy or practice of discrimination.
  • Finally, the majority cast aside "social framework" testimony from a sociologist who explained that Wal-mart's "corporate culture" made them vulnerable to gender bias. He was unable to "calculate whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking."
That was just not enough for the majority.

The dissent would have sent the case back to the lower courts by stopping after holding that the class should not have been certified under (b)(2). They thought the class might be certifiable under (b)(3). That would require a determination of whether the common questions predominate over the individual ones. The dissent felt that the evidence was strong enough to establish that common questions existed (therefore satisfying subsection (a)) - but whether they predominated (to satisfy subsection (b)(3)) was another issue to be left for another day. The dissent therefore argued that the majority was applying too high a standard under (a).

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, June 23, 2011

Print and .pdf Lawffice Space Posts

Just a quick post to let you know about a new feature on Lawffice Space. You will now see a "Print Friendly" button at the bottom of each post. Click this to print out, or create a .pdf, of any post. The format gives you just the post (with a one line header showing the URL). No sidebars, buttons, banners, etc. Click the picture in this post for an example (or just use the button!).

HT: My Colleague Jon Stepanian, author of Defense of Medicine, for pointing out that I didn't have a print feature. As his reward, he received one free .pdf of one of my blog entries. Retail value: $0.00 (but really, employment law knowledge is priceless).

Pennsylvania Unemployment Compensation Reform: Severance Pay

As I blogged on Monday, Pennsylvania just enacted Unemployment Compensation reform, including new provisions requiring that claimants actively search for new employment. You can read a copy of the law highlighting changes here . The new law also amends 43 P.S. § 804 to include severance pay provisions.

Under the new law, a Claimant will receive "compensation in an amount equal to his weekly benefit rate less the total of . . . the amount of severance pay that is attributed to the week." The phrase "severance pay" is defined as:
one or more payments made by an employer to an employe on account of separation from the service of the employer, regardless of whether the employer is legally bound by contract, statute or otherwise to make such payments. The term does not include payments for pension, retirement or accrued leave or payments of supplemental unemployment benefits.
However, the amount of severance pay that "counts" is a little tricky. It is calculated by taking the total amount paid and subtracting 40% of the Pennsylvania annual average wage. I've seen reports which put 40% of the average annual wage at $17,853, so it will only impact people who get fairly large severance payments. Sorry folks, no negative numbers . . . if you get less than $17,853 your "severance pay" is calculated as zero. The portion of that "severance pay" (as we just defined it) that counts for any given day or week is equal to the Claimant's daily or weekly full-time wage.

Pictured: Centre County CareerLink (Photo by 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.

Tuesday, June 21, 2011

SCOTUS Gives Petition Clause the Public Employee Free Speech Treatment

The big news from the Supreme Court yesterday was the highly anticipated decision in Wal-Mart v. Dukes. But, the Court also unleashed a second employment law opinion yesterday: Borough of Duryea v. Guarnieri (opinion here). I previously blogged about this case in the lead-up to oral arguments (read background here).

To recap: a public employee (police chief) brought a lawsuit alleging he was retaliated against for filing a grievance with his employer. His legal theory was that his grievance was protected activity and the retaliation violated the Petition Clause of the First Amendment. The First Amendment protects “freedom of speech” and a separate clause guarantees “the right of the people . . . to petition the Government for a redress of grievances."

The Third Circuit, contrary to public employee free speech law, held that the grievance (aka the "petition") did not need to address a matter of public concern. The Supreme Court disagreed, effectively treating the claim like a public employee free speech case. Justice Kennedy, joined by everyone but Scalia (concurring in part and dissenting in part) and Thomas (concurring in the judgment), designated the well-established Pickering test as the proper way to analyze a public employee Petition Clause claim:
When a public employee petitions as a citizen on a matter of public concern, the employee’s First Amendment interest must be balanced against the countervailing interest of the government in the effective and efficient management of its internal affairs.
The Supreme Court reversed and remanded for an application of the balancing test.

Justice Scalia slammed the majority for applying free speech precedent for the purpose of "judicial convenience" and ignoring that speech and petition are two separate rights with different aims.

Pictured: Justice Kennedy, author of the Court's opinion.

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, June 20, 2011

BREAKING: SCOTUS Reverses Class Certification in Wal-Mart Class Action

Moments ago, the Supreme Court issued its opinion in Wal-mart v. Dukes, which would have been the largest Title VII class action ever... except the Supreme Court reversed the 9th Circuit and held that certification of the class was inconsistent with Federal Rule of Civil Procedure 23(a) governing class actions.

I'll need to dig into this thing later today, but a preliminary skimming yields that the Court found that the potentially millions of Title VII claims did not have enough in common:
  • "Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored."
  • Sociologist's testimony that could not even indicate percentage of employment decisions affected by alleged "stereotypical thinking" was "worlds away from 'significant proof' that Wal-Mart 'operated under a general policy of discrimination.'"
  • Granting supervisors broad discretion is insufficient to establish a discriminatory policy because "[i]n a company of Wal-Mart’s size and geographical scope, it is unlikely that all managers would exercise their discretion in a common way without some common direction."
  • Wal-Mart's actual written policy forbids sex discrimination and provides for penalties for violation of it.
On a separate issue, the Court also held that: "Claims for monetary relief may not be certified under Rule23(b)(2), at least where the monetary relief is not incidental to the requested injunctive or declaratory relief."

That's my quick-take. I may have more later, after I've had an opportunity to sit down and really read through it and think about it.

Pictured: Justice Scalia, author of the Court's opinion.

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.

Sunday, June 19, 2011

Pennsylvania Unemployment Compensation Reform: New Job Search Requirements

On Friday, Governor Corbett signed significant unemployment compensation reform into law. The law extends unemployment compensation benefits for about 45,000 Pennsylvania claimants, but also reforms existing UC law. The new law, a copy highlighting changes is available here, creates a new shared-work program, requires some claimants to exhaust severance pay prior to collecting UC, and requires that claimants actively seek new employment to collect UC benefits.

Today's post covers the new job-search requirements (I plan to cover some other aspects in futures posts). Under the new UC law, the claimant must make an "active search" for new employment:
The requirements for "active search" shall be established by the department and shall include, at a minimum, all of the following: 
(i) Registration by a claimant for employment search services offered by the Pennsylvania CareerLink system or its successor agency within thirty (30) days after initial application for benefits.  
(ii) Posting a resume on the system's database, unless the claimant is seeking work in an employment sector in which resumes are not commonly used. 
(iii) Applying for positions that offer employment and wages similar to those the claimant had prior to his unemployment and which are within a forty-five (45) minute commuting distance.
CareerLink will provide documentation to the PA UC Service Center. The law also includes various exceptions, including: taking "traditional actions" for finding jobs in your trade or occupation; approved training; layoffs with a scheduled return to work; and Department waiver under special circumstances. Note that the Department may also impose additional requirements.

Pictured: Centre County CareerLink (Photo by 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.

Friday, June 17, 2011

Where Does Social Media Happen? - COTW #45

In two recent en banc opinions, the Third Circuit held that schools cannot discipline students for MySpace parodies of their principals under the First Amendment. While these are not employment law cases, they address an extremely important question that impacts employment law: Where does social media happen? The majority opinions in both cases seem to take narrow views of the issue, utilizing the location of the individuals at the time of publication.

The Third Circuit’s Location-Based Test

In the first case, Layshock v. Heritage Sch. Dist., the student created a fake MySpace page of his principal that suggested the principal smoked blunts and did steroids. The student created the page from his grandmother’s house. The Court held that “[a]llowing the District to punish Justin for conduct he engaged in while at his grandmother's house using his grandmother's computer” would create “unseemly and dangerous precedent.” It would be akin to allowing school authorities to “reach into a child’s home and control his/her actions there.”

In the second case, J.S. v. Blue Mountain Sch. Dist., a student likewise created a fake MySpace page purporting to be her principal’s. It called him a “sex addict, fagass” who had sex in his office (among other, equally mature, insults). The student created the page on her home computer over the weekend. The Court found that the student “did not even intend for the speech to reach the school—in fact, she took specific steps to make the profile ‘private’ so that only her friends could access it.” A six-judge concurring opinion cut right to the point in its first sentence: “Because the school district suspended J.S. for speech that she engaged in at home on a Sunday evening, I fully agree with the majority's conclusion that it violated J.S.'s First Amendment rights.”

Judges Jordan and Vanaskie on the Next Level

The location-based test may have been sufficient to resolve these two cases, but Judges Jordan and Vanaskie wisely foresee that it will be insufficient in future cases. They note:
For better or worse, wireless internet access, smart phones, tablet computers, social networking services like Facebook, and stream-of-consciousness communications via Twitter give an omnipresence to speech that makes any effort to trace First Amendment boundaries along the physical boundaries of a school campus a recipe for serious problems in our public schools.
Indeed, it seems pretty obvious that off-campus social media publication can impact and disrupt school activity. The Jordan-Vanaskie concurrence notes that a student could “engineer egregiously disruptive events [by] tweet[ing] the organizing communications from his or her cellphone while standing one foot outside school property.” The First Amendment doesn’t protect falsely shouting “fire” in a public theatre, “and no one supposes that the rule would be different if the man were standing outside the theater, shouting in.” Social media enables you to shout “fire” into the theatre from anywhere at any time.

Employment Law Tie-In

What does this have to do with employment law? I think the cases provide insight into how the Third Circuit will address social media activities in the employment context. Instead of analyzing whether student social media activities disrupt school activities, think about future analysis of whether employee social media activities are work-related. Here are a few inquiries to which we may apply the Third Circuit’s analysis:

  • Balancing public employee free speech rights with public employer management rights
  • Are social media activities “just cause” for termination under a collective bargaining agreement?
  • Are terminations for inappropriate social media activities sufficiently work-related to deny an employee unemployment compensation?
  • Is social media harassment sufficiently work-related to hold an employer liable under discrimination statutes? I touched on this in a previous post, A Facebook Harassment Consideration.
Even though they’re student speech cases, I think the Third Circuit gave us a starting point: where did the initial publication occur? And, whose equipment was used (private computers in both cases)? The Court seems very comfortable in holding that off-campus student social media activities on private computers are detached from the school environment and therefore outside of the reach of school discipline. Will they similarly find that off-duty and off-site employee social media activities are not work-related? We’ll see. Also, as Jordan and Vanaskie point out, the simple location-based test will be insufficient in future cases… some difficult analysis is on the horizon.

Layshock v. Heritage Sch. Dist., 2011 WL 2305970 (3d Cir. June 13, 2011).
J.S. v. Blue Mountain Sch. Dist., 2011 WL 2305973 (3d Cir. June 13, 2011).

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, June 15, 2011

Statistical Analysis of Adverse Impact: A Practitioner's Guide

Disparate impact claims are a particularly interesting area of employment law. Employment law often involves a collaboration of HR day-to-day folks with employment law lawyer folks. With disparate impact claims, however, there is a third component that is often not within the expertise of HR or lawyers: statistical analysis.

Stephanie Thomas, who my readers may remember as a guest-blogger here (ex. Statistical Analysis of the Twombly Era) has published a new book that helps to bridge the gap between the three disciplines mentioned above: Statistical Analysis of Adverse Impact: A Practitioner's Guide. Ms. Thomas was kind enough to provide a copy (pictured). The book provides a great introduction into the law and statistical analysis regarding adverse impact.

For the math-averse, it starts with simple and easy to follow examples of coin toss games. While some of the statistical analysis gets into scary equations with unrecognizable symbols, Ms. Thomas does a nice job of providing the "gist" of the various tests. If you need the mathy stuff (is mathy a word?) it's there, but you don't need to perform the calculations yourself to get the point of the discussion.

The book covers the basics, from hiring to promotions to reductions in force. It also includes some discussion of current events. For example, there is a discussion on recruiting in social media. And, particularly timely (though always relevant), a chapter on using unemployment status as a screening tool.

All told, it's a helpful resource for HR and employment lawyers who want a handy reference on the topic. As Ms. Thomas bills it: "A non-technical guide to assist HR professionals and legal counsel in working proactively with statistical consultants."

Note: You may also recognize Ms. Thomas as the host of The Proactive Employer podcast, which I've appeared on a number of times. Most recently for discussion of third party retaliation.

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, June 14, 2011

The Other Wal-Mart Class Action

Wal-Mart recently witnessed the awesome power of the Pennyslvania Wage Payment and Collection Law (WPCL) first-hand. In Braun v. Wal-Mart, the Superior Court of Pennsylvania largely upheld a $187 million judgment against the retail titan with just some gentle trimming and recalculation around the edges. This class action case arose primarily from Wal-Mart’s alleged failure to properly compensate its employees for break time spent working and missed rest breaks.

The WPCL does not create any obligations itself, rather it is a handy tool for enforcing existing obligations of employers to compensate employees. Here, Wal-Mart policy and the Pennsylvania Minimum Wage Act required the stores to compensate employees for time spent working “off the clock” and for regular paid rest breaks. So, what makes the WPCL a handy tool?

First, it provides for mandatory attorney’s fees and costs if you win. It also contains a liquidated damages provision, allowing for additional collection in certain circumstances. Here, Wal-Mart faced a class action lawsuit from upwards of 187,000 employees, representing all Pennsylvania hourly employees for a given time period. How does this work in action?
  • WPCL verdict: $ 49,568,541.00
  • WPCL penalty: $ 62,253,000.00
  • WPCL attorney fees: $ 33,813,986.24
  • WPCL expenses: $ 2,670,325.52
 Throw in some extras:
  • Common Law verdict: $ 29,178,873.35
  • Statutory Interest: $ 10,163,863.00
 And you get:
  • Total: $187,648,589.11
Behold, the awesome power of the WPCL (as noted previously, there will be some minor changes to those figures). Of course, Wal-Mart has that other class action pending... the Supreme Court opinion in Wal-Mart v. Dukes is expected any day now. I suspect that one will go a little better for them.

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.

Sunday, June 12, 2011

An Accidental Redesign and a Blogger Gripe

If you’re viewing this post on http://www.lawfficespace.com/ then you already know… I implemented a few changes over the weekend. It all started when Dan Schwartz re-launched Connecticut Employment Law Blog (it’s awesome, go check it out). I saw his “highlights” and thought that adding links to recent posts at the top of Lawffice Space would be a great addition. So I added the “Recent Posts” section you see now.

Unfortunately, when I added the Recent Posts, it created a glitch/visual mismatch with the template I had been using. So, I switched to the new template you see now (it’s very subtle). Then, the banner was the wrong size (plus it pushed the first post down too far on the screen IMO). So, I created the simple, compact, yet elegant banner you see before you.

Which brings us to my gripe about the Blogger “upgrade”…

I had implemented some customized share buttons for Facebook, Twitter, and LinkedIn. When I switched templates, Blogger wiped out the buttons. To make matters worse, the new version of Blogger doesn’t allow me to directly edit the HTML. That means, I can’t even go in and re-implement the buttons. You still have some sharing buttons at the bottom of each post, but I am at Google’s whim as far as which buttons appear now and in the future. For example, there’s no LinkedIn button and the Facebook and Retweet counts are gone. Given Google’s numerous (and frankly, not very successful) efforts to break into social media, I have serious concerns about how anxious they are to add new and competing sharing tools. On the plus side, there’s a Google +1 button now (yay?).

UPDATE (6/20/2011): As you can see, the share buttons are back now. You can remove the "Make Blogger in Draft My Default" check box. Go to www (not draft) . blogger . com and you will be in the "old" version which will allow you to edit/update HTML. I assume the "draft" version will soon be the official version, so it may be a good idea to get those HTML edits in there 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.

Friday, June 10, 2011

Employee Wins FMLA "Key Employee" Exemption Case on Summary Judgment - COTW #44

Summary judgment is a danger zone for employee lawsuits. This Case of the Week entails an employee actually winning on liability on summary judgment for her FMLA claim. And, I don't just mean surviving the employer's motion, I mean having her own motion granted. The case is Neel v. Mid-Atlantic of Fairfield, LLC, No. JKB-10-405 (D. Md. April 20, 2011).

The employee was out on FMLA leave, and starting to make plans for her return. Then, the employer informed her that her position had been filled, there were no openings, and her employment had been terminated. Ordinarily, employers must restore employees to their prior positions or an equivalent upon return from FMLA. Easy case for the employee, right?

Not so fast! The FMLA provides a "key employee" exemption where:
(A) such denial is necessary to prevent substantial and grievous economic injury to the operations of the employer;
(B) the employer notifies the employee of the intent of the employer to deny restoration on such basis at the time the employer determines that such injury would occur; and
(C) in any case in which the leave has commenced, the employee elects not to return to employment after receiving such notice.
29 U.S.C. § 2614(b)(1). Here, the employee did not deny she was a key employee... so, easy win for the employer, right?

Not so fast! FMLA regulations provide:
As soon as an employer makes a good faith determination . . . the employer shall notify the employee in writing of its determination . . . that it intends to deny restoration to employment on completion of the FMLA leave . . . . This notice must explain the basis for the employer's finding that substantial and grievous economic injury will result, and, if leave has commenced, must provide the employee a reasonable time in which to return to work, taking into account the circumstances, such as the length of the leave and the urgency of the need for the employee to return.
29 C.F.R. § 825.219(b). So, what happens when an employer fails to comply with the regulations? This:
The Court concludes that [the employer] interfered with [the employee's] FMLA rights by failing to provide her proper notice of its unambiguous intent to deny restoration, by failing to explain to her the basis for its determination that restoration would cause [the employer] substantial and grievous economic injury to its operations, and by failing to offer her a reasonable time in which to return to work after notification of its intent to deny restoration.
In short, a rare summary judgment victory for an employee. This one's not done though. Next up: further proceedings to determine remedies.

HT: Eric M. Leppo, Employer Fails to Establish Dispute of Fact in Former Employee’s Claim Under Family and Medical Leave Act.

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, June 7, 2011

Women Can't be Bartenders - SCOTUS Flashback

Can a state ban women from bartending except for the wives or daughters of male owners? You bet!... if it's 1948. The Supreme Court upheld just such a law, from Michigan, in Goesaert v. Cleary, 335 U.S. 464 (1948). I came across this case while reading Rehabilitating Lochner by Prof. David Bernstein (pictured). Sidenote: Bernstein was my Con Law II - Individual Rights professor at George Mason. It's an interesting book about the infamous liberty of contract case, Lochner v. New York, 198 U.S. 45 (1905), and its impact on subsequent civil rights issues.

But back to these female bartenders. The Court's analysis reflects a different time, and begins with the premise that "Michigan could, beyond question, forbid all women from working behind the bar." Although the Court recognized "vast changes in the social and legal position of women," Justice Frankfurter wrote that "[t]he Constitution does not require [state] legislatures to reflect . . . shifting social standards." The analysis was therefore limited to whether the Michigan law "play[ed] favorites among women without rhyme or reasons."

The Court found that the distinction between all women, and wives and daughters of owners, was grounded in sound reason:
Since bartending by women may, in the allowable legislative judgment, give rise to moral and social problems against which it may devise preventive measures, the legislature need not go to the full length of prohibition if it believes that as to a defined group of females other factors are operating which either eliminate or reduce the moral and social problems otherwise calling for prohibition.
And, "oversight [by a] husband or father minimizes hazards that may confront a barmaid without such protecting oversight." Thus, the Michigan law was a-ok.

Prof. Bernstein notes that 26 states prohibited women from working as bartenders by 1960. Such laws became illegal discrimination following enactment of Title VII and a "series of Supreme Court cases in the early 1970s." I can't help but think of the movie Coyote Ugly as a great contrast to the "protective" bartending laws of the mid-20th century.

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, June 6, 2011

Weiner and the Same Old Social Media Lessons

Social media disasters seem to teach the same lessons over and over (and over) again. But apparently, some guys never learn. By now, you've probably already heard the pathetic tale of Anthony Weiner, pictured... I know, you're probably having trouble recognizing a picture of his face. In case you haven't heard, the Congressman just admitted that he engaged in inappropriate Internet activity, including publicly tweeting a picture of his "bulging underwear" to a young woman. So, what lessons did we learn (for the billionth time) about misconduct and social media?

1. Don't Engage in Inappropriate Conduct Online
Sometimes "inappropriate" is a gray area... a married congressman sending pictures of his crotch in various states of undress to women-not-his-wife meets most people's definition. I won't dwell, or finger-wag, but I wanted to start with the obvious: the easiest way to avert a social media disaster is avoiding the inappropriate behavior in the first place. And remember, the Internet never forgets.

2. Check the Recipients
Who are you sending this to? Think about it every time. Are you publicly tweeting, or sending a private direct message? Are you posting on someone's public Facebook wall, or sending them a private Facebook message? Are you replying via email to your friend, or did you hit reply all? When you're sending something private, make sure you're sending it privately... which leads nicely in to point #3...

This goes double if you're a high profile person... ya know, like a United States Congressman! Before idiotically tweeting his underwear to the world, Weiner only sent pictures of his genitals in "private" messages. This explains why nobody knows about them... except for everyone in the world with Internet access, thanks to conservative blogger, Andrew Breitbart.

4. Lying Only Makes it Worse
The truth will come out and you will look just as bad as if you admitted the misconduct in the first place... plus everyone will know that you're a liar. If people (the public, your wife, your employer, whatever) are willing to give you a pass for the underlying misconduct, you might not be so lucky when it comes to lying about it.

Same lessons, different day. And for employers, it may be time to double-check the ole' social media policy.

Image is public domain as work of the federal 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.

Sunday, June 5, 2011

First Amendment Right to Gay Softball

A federal court in Washington decided an interesting case last week – a case arising from the 2008 Gay Softball World Series. The North American Gay Amateur Athletic Alliance (NAGAAA) suspended the plaintiffs, three bisexual players, because the league found them not gay enough. Each team is allowed two heterosexuals, but the plaintiffs’ team allegedly exceeded this number.

The plaintiffs filed suit under Washington’s Law Against Discrimination (WLAD) which prohibits discrimination on the basis of actual or perceived sexual orientation in “public accommodations.” The Court found that the gay softball league was a public accommodation. But, the league was also an expressive association with First Amendment rights.

The league “[p]romotes the idea of athletic competition and good physical health in support of the gay lifestyle” and emphasizes “participation of members of the gay, lesbian, bisexual and transgender (GLBT) community.” As the Court noted:
The First Amendment guarantees the “right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.”
The Court quoted and relied on Boy Scouts of Am. v. Dale, 530 U .S. 640 (U.S. 2000). The irony here, being that Dale held that the Boy Scouts could exclude homosexuals, and it is now being used to protect a gay group’s right to exclude heterosexuals (or possibly bisexuals… the NAGAAA merely found the plaintiffs “non-gay”).

That is not the end of the analysis though. A state can override freedom of expression for a compelling state interest, unrelated to suppression of ideas, that cannot be achieved by less restrictive means. The Court holds that the plaintiffs “failed to argue that there is a compelling state interest in allowing heterosexuals to play gay softball.” Summary judgment for the defendants.

Citation: Apilado v. N. Am. Amateur Athletic Alliance, 2011 WL 2148816 (W.D. Wash. May 31, 2011).

Update 6/6/2011: Something I should have made clearer in the original post is that the defendants were granted summary judgment on the plaintiffs' request to enjoin the league from enforcing its policy. The Court also denied plaintiffs' motion for summary judgment on the unlawful discrimination claim.

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, June 3, 2011

3rd Circuit on Sua Sponte Dismissal for Failure to Exhaust Administrative Remedies - COTW #43

For my non-lawyer readers, don't be turned off by the technical jargon in the headline... we can work through this. "Sua sponte" just means the court did something all on its own, without a party asking the court to do that something. In this week's employment law Case of the Week, that something was dismiss a Plaintiff's discrimination claim. Let's see why.

Before you sue an employer for discrimination under Title VII, there are certain procedural requirements which must be met. One major requirement, is that you must file a complaint with the EEOC and/or the state equivalent (in Pennsylvania, the PHRC) within 300 days of the violation (the time limit gets a little tricky sometimes, contact a lawyer for help with the details). What if you don't do that?

Well, in Fernandez v. Rose Trucking, that's exactly what happened. Ordinarily, the defendant must raise the issue in its pleadings as an affirmative defense, which bars the lawsuit altogether. Here, the district court raised the issue all on its own and dismissed the case without the defendant raising the issue. Just last week, the Third Circuit held, on appeal, that it is OK for district courts to dismiss cases on their own... sometimes.

When? "[D]ismissal may be appropriate where the plaintiff concedes that he failed to exhaust." In Fernandez, the plaintiff expressly stated that he was ignorant of the need to contact the agencies. When he finally did, the EEOC informed him that "the time limit . . . had expired." He also stated that he was not aware that he could contact the state agency. Thus, the Court concluded that sua sponte dismissal was appropriate "under these limited circumstances."

There are a few lessons here. For employees with claims of discrimination, you need to get in touch with a lawyer, state agency, or EEOC as soon as possible to jump through the proper procedural hoops. For employers, you ordinarily need to raise failure to exhaust administrative remedies as an affirmative defense. But, sometimes, the court can dismiss the case for failure to exhaust administrative remedies all on its own.

Citation: Fernandez v. Rose Trucking, 2011 WL 2065064, No. 10-3409 (3d Cir. May 26, 2011).

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.