Saturday, June 30, 2012

Why Did Roberts Reach the Commerce Clause on Obamacare?

I spotted this issue before I even read the opinion, and noted it in my initial post on the SCOTUS Obamacare opinion: If the individual mandate is a constitutional exercise of Congress's power under the Taxing Clause, then why address the Commerce Clause at all? If the Court finds one source of power, why exclude any others?

Having now read the opinion, it turns out that Chief Justice Roberts addresses this issue. Roberts sets forth a procedure for analyzing constitutional authority:
  1. Identify the most reasonable interpretation of the statute. In this case, that meant treating the mandate with a penalty... like a mandate with a penalty - a power that suggests Commerce Clause.
  2. Analyze whether the Constitution's enumerated powers give Congress the authority to enact the statute under its most reasonable interpretation. If so, then we're done: Constitutional. In this case, per the majority, the Constitution's Commerce Clause does not grant Congress the authority to enact the individual mandate.
  3. We're not done though - “[E]very reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Hooper v. California, 155 U. S. 648, 657 (1895). The Court will then turn to any reasonable interpretation it can find, even if it's not "the most natural interpretation." In this case, Roberts concluded that the mandate and penalty would be unconstitutional... but maybe there's a secondary interpretation that could save this thing. Here, Roberts accepts that interpreting the mandate and penalty as a tax is a reasonable, albeit not the most reasonable, interpretation.
  4. Analyze the constitutionality of the back-up interpretation. Here, the majority finds that the mandate is a valid exercise of Congress's taxing power (note: a different majority than rejected the Commerce Clause argument... which has led some to question whether the Commerce Clause issue is mere dicta). Therefore, the mandate is constitutional.
  5. Although it was not necessary here, I assume we repeat steps 3-4 going through every reasonable interpretation until we find one that is constitutional (law is constitutional) or run out (unconstitutional).
The downside of this procedure is that it creates the potential to distort a law and read it as something it is not to uphold an unconstitutional law. In fact, that's effectively what the dissent argues... Roberts turned a mandate and penalty into something it's not (a tax).

The upside is that it affords the legislative branch some deference so long as the Court can reasonably interpret a law as constitutional. This is the pro-democracy argument - elected legislators who can be voted out should be granted deference by nine unelected lifetime appointees.

Image: Chief Justice John Roberts - public domain as work of U.S. government.

Thursday, June 28, 2012

SCOTUS Obamacare Ruling in (mostly) Plain English - COTW #98

The Supreme Court issued its long-awaited opinion on "Obamacare" (aka Patient Protection and Affordable Care Act): National Federation of Independent Business, et al. v. Sebelius (opinion here). It's a 193-page monster, but here's what I've been able to make out so far:
  • The individual mandate is not a tax . . . so the Court could hear the case to rule that it is a tax. Huh? Basically, the Court held that the individual mandate was defined as not-a-tax by legislation and therefore fell outside of the Anti-Injunction Act (which would have barred the Court from hearing the case at this point in time).
  • But, the legislature cannot tell the Court what is and is not a tax for purposes of deciding whether the mandate is a valid exercise of Congress's power under the Taxing Clause. And, it is a tax for purposes of the Constitution - and therefore Constitutional (so the PPACA lives).
  • The Court also held that the mandate is not a valid exercise of Congress's power under the Commerce Clause and the Necessary and Proper Clause. I'm still trying to figure out why they even reached this issue. Once you identify a valid exercise of power, why identify powers that Congress did not (or can not) exercise? The Commerce Clause question seems no more relevant than whether Obamacare is a valid use of Letters of Marque and Reprisal. I'm anxious to dig through the opinion to see if they address why they reached the Commerce Clause at all.
  • Finally, per the syllabus: "[T]he Medicaid expansion violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion." My limited understanding at this point is that Congress cannot threaten existing Medicaid funding, but only new funding.
So, there you have it - Obamacare is (pretty much) constitutional. Almost no chance I'll have an opportunity to really dig through this thing until the weekend. I have a hunch that there will be plenty of coverage to satiate your curiosity.

Fired for WHAT!? - 6/28/2012

I thought I'd drop a not-so-serious post here before we get to the traditional week-ending Case of the Week (gee... I wonder what it could possibly be... I have a feeling we'll find out around 10:00 AM at One First Street in DC).

Fired for Letting Students Eat Moose Poop - "Two 8th grade students on a Canadian school trip were fooled into eating moose droppings by a chaperone and the teachers and principal didn't do anything to stop it." Wow. The kids were told that the Moose droppings were chocolate-covered almonds. The principal has reportedly been removed (he was supposed to be their "pal"! - anyone else remember that trick for remembering how to spell principal?)

Fired for Refusing to Charge Cigarettes to EBT Card - An EBT card is an "Electronic Benefit Transfer" card, which is effectively a charge card funded by government assistance. When a young man tried to use it to purchase cigarettes, the clerk said (paraphrasing), "Not on my watch!" Unfortunately, it turns out that people can use these cards (if they're a certain type - "cash cards") to buy things like cigarettes and beer. The clerk was told she had to accept the cards. I saw her on a talk show and she said something to the effect of "I was allowed to bow out gracefully." I'll call it constructive discharge and let her stay in today's Fired for What!? anyway.

If you have a good termination story, let me know. Or, use the hashtag #Fired4What on Twitter.

Tuesday, June 26, 2012

SCOTUS Grants Cert in ERISA Case

On Monday, while the Supreme Court was busy not deciding the health care case, it found time to grant certiorari in two employment law cases. I already blogged about the supervisor liability case, Vance v. Ball State Univesity. The other employment law case is U.S. Airways, Inc. v. McCutchen (3d Cir. opinion here).

My beloved home circuit (aka the Third Circuit) has parted ways with a number of other circuit courts on an important ERISA issue, creating a circuit split. It looks like the Supreme Court will now resolve that split. I try to avoid bold predictions... but when the Supreme Court allows five circuit court decisions to stand, and grants cert on the one with a different holding, you have to think the non-conforming decision is in trouble.

So, what's the issue? Per the Petition for Writ of Certiorari (available here), the question presented is:
Employee benefit plans often cover a participant’s medical bills in the event of injury but require that, if the participant obtains compensation from a third party for that injury, he or she reimburse the plan in full. Under Section 502(a)(3) of the Employee Retirement Income Security Act (“ERISA”), plans may enforce these reimbursement provisions in court by seeking “appropriate equitable relief” to enforce “the terms of the plan.” 29 U.S.C. § 1132(a)(3).
Twice in recent years this Court has resolved disputes about how Section 502(a)(3) works in reimbursement actions. In the more recent case, Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356 (2006), the Court expressly reserved a third question about the provision. The Third Circuit, in its words, has now “squarely” answered “the question that Sereboff left open,” Pet. App. 9a, and has done so in a way that, as it acknowledged, splits the circuits.
The question presented is: Whether the Third Circuit correctly held—in conflict with the Fifth, Seventh, Eighth, Eleventh, and D.C. Circuits—that ERISA Section 502(a)(3) authorizes courts to use equitable principles to rewrite contractual language and refuse to order participants to reimburse their plan for benefits paid, even where the plan’s terms give it an absolute right to full reimbursement.
Now, I know what you're thinking: "I love statutory interpretation of ERISA provisions!" Don't we all? It looks like we'll soon get a ruling on this issue from the highest court in the land.

Monday, June 25, 2012

SCOTUS Grants Cert in Supervisor Liability Case

Breaking news from the Supreme Court (sorry, no health care opinion today): The Supreme Court has granted certiorari in Vance v. Ball State University. You can read the order here in case you think I'm lying.

The Petitioner's Brief (available here) identifies the Question Presented as:
In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), this Court held that under Title VII, an employer is vicariously liable for severe or pervasive workplace harassment by a supervisor of the victim. If the harasser was the victim’s co-employee, however, the employer is not liable absent proof of negligence. In the decision below, the Seventh Circuit held that actionable harassment by a person whom the employer deemed a “supervisor” and who had the authority to direct and oversee the victim’s daily work could not give rise to vicarious liability because the harasser did not also have the power to take formal employment actions against her. The question presented is:
Whether, as the Second, Fourth, and Ninth Circuits have held, the Faragher and Ellerth “supervisor” liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or, as the First, Seventh, and Eighth Circuits have held (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.
The Court will likely resovle a circuit split on this issue. I was a little disappointed in the Supreme Court's employment law case load for this past season. I'm happy to see a case like this get its day in the Supreme Court, and hope it's a sign that SCOTUS will take on more employment law cases next season.

Friday, June 22, 2012

Knox v. SEIU - COTW #97

The Supreme Court issued its opinion in Knox v. SEIU yesterday. It probably felt a bit like the wrong person walking in to a surprise party: the room is filled with anticipation... deep breath... annnnd... and then universal disappointment. "You're not the health care opinion!" said everyone. But, Knox is still an important opinion, and it's a labor and employment law opinion... and now it's truly blessed because it's also the Lawffice Space Case of the Week!

The background of the case is that a public sector union can take "chargeable expenses" from nonmembers for union services related to collective bargaining. But, the union cannot require nonmembers to fund political projects (compelled speech is a First Amendment no-no). In this case, the union provided notice of the dues and chargeable expenses and nonmembers had an opportunity to opt-out of the dues.

Then, the union levied a special assessment for political purposes. Per the syllabus, "Nonunion employees were not given any choice as to whether they would pay into the fund." And therein lies the First Amendment concern.

The Court first decided a mootness issue, which hardly broke any new ground. If a party voluntarily ceases the challenged conduct, the Court will hear the case anyway because the party could just start back up after the case is dismissed.

The meat of the case is its First Amendment holding:
Under the First Amendment, when a union imposes a special assessment or dues increase levied to meet expenses that were not disclosed when the regular assessment was set, it must provide a fresh notice and may not exact any funds from nonmembers without their affirmative consent.
Justice Alito, for the majority, spent a good deal of time laying into opt-out schemes that require nonmembers to opt out of funding political speech instead of affirmatively opting in:
To respect the limits of the First Amendment, the union should have sent out a new notice allowing nonmembers to opt in to the special fee rather than requiring them to opt out.
Justice Alito finished with a concise summary of the case:
Public-sector unions have the right under the First Amendment to express their views on political and social issues without government interference. See, e.g., Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010). But employees who choose not to join a union have the same rights. The First Amendment creates a forum in which all may seek, without hindrance or aid from the State, to move public opinion and achieve their political goals. “First Amendment values [would be] at serious risk if the government [could] compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side that [the government] favors.” United Foods, 533 U. S., at 411. Therefore, when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent.
By my count, that's the last true labor and employment law case of the Supreme Court season. Of course, employers and employees (and pretty much everyone) is waiting for the health care opinion, which should be here at about 10:00 AM on Monday.

Wednesday, June 20, 2012

EEOC Appellate Briefs Now Available Online

The Equal Employment Opportunity Commission (EEOC) has made its briefs available online (here). Per the EEOC's press release:
These briefs from the EEOC’s Appellate Services Division represent litigation in the U.S. Circuit Courts of Appeals in which the Commission was a party, or briefs filed as a ‘friend of the court’ (amicus curiae) in those courts, as well as in U.S. District Courts and state courts.
The new database allows full text searches for key words or phrases, such as “reasonable accommodation diabetes” or “race harassment nooses,” as well as searches by case name, court, statutes involved, basis and type of brief. New briefs will be added within several weeks of being filed in court.
The database does not include briefs filed in the Supreme Court, either as party or amicus. These are available from the Office of the Solicitor General at the Department of Justice.
The briefs go back to 2000. Pre-2000 briefs are available from the court clerks. Yay open government!

HT: Ross Runkel via LawMemo.

Image: EEOC logo used in commnetary on EEOC. Not official use.

NLRB Launches "Protected Concerted Activity" Page

The National Labor Relations Board (NLRB) launched a new Protected Concerted Activity web page this week. The NLRB's press release provides a nice summary. The new page begins with:
The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren't in a union.
(emphasis added). Yes non-union employers, the NLRA applies to you. Several bloggers see the NLRB's big push to promote protected concerted activity as a play for the non-union employees. Or, as Jon Hyman calls it, Reaching the 93% (of private employees who are non-union). See also, Eric Meyer's NLRB Continues Preaching to Your Non-Union Employees, and Molly DiBianca's NLRB's New Web Page Targets Your Employees.

Monday, June 18, 2012

Lawffice Links - SCOTUS FLSA Edition 6-18-2012

Today, the Supreme Court (in Christopher v. Smithkline Beecham), held that pharmaceutical sales reps fall within the FLSA's outside sales exemption, and were therefore not entitled to overtime pay. I already threw my initial two cents in. I also baked up some fresh Lawffice Links to mark the occasion:
I'll have more of my own analysis in the coming days. In the meantime, if you have a blog entry on this case then just drop a link in the comments below.

Just In: SCOTUS Issues Opinon on FLSA Outside Sales Exemption for Pharmaceutical Sales Reps

Minutes ago, the Supreme Court issued its opinion in Christopher v. Smithkline Beecham. I blogged about this case when the Court granted Cert., and identified the issues as:
(1) Whether deference is owed to the Secretary [of Labor's] interpretation of the Fair Labor Standards Act’s outside sales exemption and related regulations; and
(2) Whether the Fair Labor Standards Act’s outside sales exemption applies to pharmaceutical sales representatives
After a brief skim of the opinion, the 5-4 majority of the Court held that:

(1) The Department's interpretation was "flatly inconsistent with the FLSA," and an evolving view that didn't provide an opportunity for public comment. It also didn't provide "clear notice" that the practice in question constituted a violation of the FLSA and therefore amounted to an "unfair surprise." In this instance, the Department's interpretation is "only as strong as the reasoning underlying its conclusion." This holding could have significant admin law implications in cases well outside of the employment law arena.

(2) The Court held that pharmaceutical sales reps fall under the FLSA's outside sales exemption. The reps "obtain nonbinding commitments from physicians to prescribe [pharmaceutical compaies'] drugs." Accordingly, they do not make direct sales. The Court relied on textual clues, and the purpose of the FLSA to conclude that the pharmaceutical reps are "hardly the kind of employees that the FLSA was intended to protect." No mandatory overtime wages for the reps.

The opinion was the standard 5-4 conservative split, with Justice Alito authoring the opinion, and Breyer for the dissenters. More analysis forthcoming (after I've had a chance to read the full opinion and digest it a little bit).

Friday, June 15, 2012

Cha-Ching! $25 Million Race Discrimination Verdict - COTW #96

You put up numbers this big, and you've got a good great shot at landing Case of the Week honors. A New York jury awarded a steelworker $25 million in a race discrimination suit. What kind of treatment puts up numbers like this?
Elijah Turley still remembers the stuffed monkey with a noose around its neck found hanging from his driver's side mirror. He also remembers the "KKK" and "King Kong" graffiti on the walls of the Lackawanna steel plant where he worked for 14 years. And if that wasn't bad enough, there were the racial slurs from co-workers.
Sometimes it's hard to believe these things still go on in modern workplaces. And that was the line of attack the plaintiff's attorney used:
This case is about the breakdown of a man . . . . He wanted to be treated equally, treated equally in a culture that hadn't changed since the '50s.
Well, he has $25 million to build himself up again (alright, it will probably get reduced in one way or another - but still be a lot).

To the employer's credit, it did hire a private investigator, suspend employees, and install security cameras. I guess the jury felt that it just wasn't enough under the circumstances.

HT: Rich Meneghello via Twitter.

Tuesday, June 12, 2012

Do Noncompetes Kill Creativity?

I recently finished reading Jonah Lehrer's Imagine: How Creativity Works. It's an interesting book about innovation, creativity, and imagination. The book spends almost no time on the law . . . except for a brief discussion of noncompetes.

Once upon a time, Boston's Route 128 was the hot tech corridor. Lately, Silicon Valley in California has had the hot hand. What does this have to do with noncompetes?
[The Boston] companies strictly enforced noncompete clauses and nondisclosure agreements; former employees couldn't work for competitors . . . . This meant that at the Route 128 companies, information tended to flow vertically, as ideas and innovations were transferred within the firms. While this vertical system made it easier for Route 128 companies to protect their intellectual property, it also made them far less innovative . . . . Although the Boston area had a density of talent, the talent couldn't interact - each firm was a private island. The end result was a stifling of innovation. 
The vertical culture of the Boston tech sector existed in stark contrast to the horizontal interactions of Silicon Valley. Because the California firms were small and fledgling, they often had to collaborate on projects and share engineers . . . . It also helped that noncompete clauses were almost never enforced in California, thus freeing engineers and executives to quickly reenter the job market and work for competitors.
If true, this presents something of a prisoner's dilemma for employers. The optimal strategy is to expand innovation by allowing employees (and presumably ideas) to float between firms. However, employers have an incentive to defect - that is have their own employees sign noncompetes so their ideas don't get out, while allowing other companies' ideas to come in.

Of course, there are a number of other factors to consider.

Monday, June 11, 2012

Pennsylvania Adopts E-Discovery Rules

On June 6, 2012, the Pennsylvania Supreme Court issued an Order amending the Pennsylvania Rules of Civil Procedure to include e-discovery provisions. They also announced the changes via Twitter. Yup, they have their own Twitter account - one of the reasons my state's high court is cooler than yours.

You can view the Amendments here. All told, they're pretty modest. Electronically Stored Information is expressly included in 4009.1 (Production of Documents and Things). The rules also address the format of the responses:
A party requesting electronically stored information may specify the format in which it is to be produced and a responding party or person not a party may object. If no format is specified by the requesting party, electronically stored information may be produced in the form in which it is ordinarily maintained or in a reasonably usable form.
Sounds a lot like the federal rules, huh? Not so fast! The explanatory comment expressly states that "there is no intent to incorporate the federal jurisprudence surrounding the discovery of electronically stored information."

Instead, Pennsylvania utilizes its own proportionality standard. How does that work with ESI? I'm glad you asked . . . the court is required to consider:
(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.
It will be interesting to see if Pennsylvania's proportionality standard can control costs any better than the federal rules.

HT: Jon Stepanian, my McQuaide Blasko colleague and blogger at Defense of Medicine.

Friday, June 8, 2012

Perfect Overtime Defense: Plaintiff Never Worked Here! - COTW #95

Navigating overtime pay can be a mine field for employers. Are you properly classifying employees as exempt/non-exempt? Which activities constitute "work" under the FLSA? How are the hours and mandatory overtime pay calculated?

But you know who unquestionably does not receive overtime pay? People who don't work for you! In an almost-unbelievable story, a plaintiff filed an overtime lawsuit against her "employer"... but it turns out she never worked there.

The woman who filed the lawsuit was actually on the payroll at one point and was paid $21,218. But strangely, "no one had hired her, and no one remembered her ever working" there. Throw in a payroll coordinator who turned out to be a thief, now on 20 years probation and paying restitution, and a boyfriend (and co-plaintiff) who worked there . . . and I think we can guess what was going on here.

It also turns out that the plaintiff had another full-time job at the same time she claimed she was working for the defendant. She "said she sometimes did work for Miller's company by telephone while she was physically at her job in Pasco County." Riiiight. And that leads to this exhange at her deposition:
"So you were getting paid for working at Southeast but also getting paid for working for [the defendant's company] at the same time?" attorney Siegel asked her.
"Yes," she said.
"And you see nothing ethically wrong with that?"
She later developed a "headache" and had to stop the deposition. And then, the lawsuit was dismissed - but it will live on forever as the Lawffice Space Case of the Week!

HT: Donna Ballman via Twitter.

Wednesday, June 6, 2012

Follow-the-Spouse to Unemployment Compensation

A recent Commonwealth Court of Pennsylvania case, Pa. Gaming Control Bd. v. UCBR, 927 C.D. 2011, 2012 WL 1860807 (Pa. Commw. Ct. May 23, 2012), provided a nice overview of the "follow-the-spouse" doctrine in Pennsylvania unemployment compensation law. It also included a little bit of a twist, and what may be viewed as an expansion of the rule.

Generally, an employee who quits his job voluntarily is not eligible for unemployment compensation benefits. An employee who leaves voluntarily may be eligible if he can establish that he quit for a "necessitous and compelling" reason.

As the Court has previously explained:
Family obligations or joining a spouse at a new location can constitute a necessitous and compelling reason to leave one's employment. However, a claimant voluntarily terminating employment for family obligations must establish that the action was reasonable and undertaken in good faith. The actual reasons may not be purely personal. Although the preservation of the family unit is socially desirable, this desire to maintain the family unit is not in and of itself sufficient cause to terminate employment and become eligible for unemployment compensation benefits.
(internal citations omitted). The classic "follow-the-spouse" scenario involves an employee who resided with his spouse, who then quits his job to follow a relocating spouse. Relying on past precedent, the Court explained:
Where a claimant terminates employment to join a relocating spouse, the claimant must demonstrate an economic hardship in maintaining two residences or that the move has posed an insurmountable commuting problem. The claimant must also show that her resignation was the direct result of her spouse's relocation, i.e., the necessity to relocate must be caused by circumstances beyond the control of the claimant's spouse and not by personal preference, and the decision to relocate must be reasonable and be made in good faith. These principles reflect the General Assembly's intent to permit the obligation of joining one's spouse, under the proper circumstances, to constitute cause of a necessitous and compelling nature to leave one's employment. The desire to maintain the family unit is not by itself sufficient cause to terminate one's employment and receive benefits.
(internal citations omitted). So, why was this case different?

In Pa. Gaming Control Bd., the spouse relocated before the couple got married. Does that matter? Per the Court's opinion, not really - it's still the same test. Here, the relocation was based in part on personal preference, but also the "economic hardship" of maintaining two residences and the "insurmountable commuting distance" (in this case, Pennsylvania to Louisiana). Accordingly, the claimant was eligible for benefits.

Tuesday, June 5, 2012

Fire for What!? - 6/5/2012

Welcome to a very special (and creepy) edition of Fired for What!? Ordinarily, I feature three great termination stories from around the web . . . but I'm willing to make an exception for this case.

A Pennsylvania man has been arrested for using a hidden camera to spy on a co-worker. But wait, it gets worse:
[The female co-worker] noticed that a small hole had been drilled into a ceiling tile above her desk. Upon further investigation, the 32-year-old woman "observed a camera lens" had been positioned above her desk. In an interview with officers, the victim said that she had gone into her office "for the purpose of utilizing a breast pump to pump milk for her baby."
The report includes the probable cause affidavit.
When confronted by investigators, Bednarik handed over a Sony camcorder, which he later admitted placing above the woman’s desk (after creating a small hole in the ceiling tile) . . . "for the purpose of sexual arousal and gratification."
Another report indicates that the man was terminated from his position. I would certainly hope so.

Friday, June 1, 2012

Last Chance Agreement Creates Retaliation Liability - COTW #94

The latest Case of the Week is a rare bird indeed - a summary judgment win for an employment discrimination plaintiff! The case is EEOC v. Cognis Corp., 2012 WL 1893725 (C.D. Ill. May 23, 2012)(EEOC press release here), and it's a retaliation claim arising from a "last chance agreement", or an "LCA" as the cool kids might call them.

As you can probably guess, an LCA is an employee's last chance to get it right. In this case, the employee signed the LCA in lieu of termination, agreeing to "fully comply with all requirements of the job." The LCA included another requirement though:
For and in consideration of the mutual promises set forth herein, Whitlow does hereby release and waive any claim of liability against Cognis, its affiliates, partners, agents and employees, for, on account of, or in relation to Whitlow's rights' [to] employment with Cognis or its affiliates, or his status under this [LCA], and agrees not to commence any action or proceeding, including but not limited to any common law claim or statutory claim under Title VII of the Civil Rights Act of 1964, and similar state or local fair employment practices law, regulations, or ordinance, the Age Discrimination in Employment Act (ADEA), the Rehabilitation Act of 1973, or the Americans with Disabilities Act of 1990(ADA), the National Labor Relations Act (NLRA), the Family and Medical Leave Act (FLMA), or before any state, federal or court or administrative agency, civil rights commission or agency, or any other forum.
And that's where the problems come in.

The employee revoked the LCA because he felt it restrained his civil rights, and was then fired. The Court held:
Whitlow's act of opposing the LCA and revoking his agreement to the LCA because it restrained his civil rights also was protected activity. The LCA, by its clear language, threatens retaliation for protected activity. Cognis' requirement that Whitlow be subject to an agreement restraining his statutory rights to avoid termination is an unlawful employment practice. Therefore, opposing this practice by revoking his agreement to the LCA certainly qualifies as protected activity.
And that's pretty much game over.

The employer advanced an argument that the Court found "defies simple logic." Specifically, they argued that they made the decision to terminate him when they gave him the LCA. Obviously a loser of an argument as the LCA expressly states that "The Company agrees to offer [the employee] the opportunity to retain his position."

I guess the takeaway here is that employers shouldn't present ultimatums to employees to either sign away their civil rights or get fired. In the words of the Court, "[An employer's] requirement that [an employee] be subject to an agreement restraining his statutory rights to avoid termination is an unlawful employment practice."

Note: I pulled some of the facts from an earlier decision in this case, 2011 WL 6149819.