Friday, June 28, 2013

SCOTUS Employment Law-Palooza - Case(s) of the Week #149

I couldn't do it. I absolutely could not pick just one case and run with it for the COTW. Instead, I'm going to take a look back at this crazy week of important Supreme Court employment law developments.

We started off with a bang, as SCOTUS issued two wins for employers in what I'll call "pure" employment law cases:
Before the Court even started handing down opinions on Monday, it issued an order with some employment law implications:
  • The Court granted certiorari in Noel Canning. This is technically a constitutional law case about the recess appointment power of the president . . . but the recess appointments in question are NLRB appointments so there are labor issues at play.
  • Things were so crazy that SCOTUS granted cert in a Labor Management Act case and I didn't even have an opportunity to blog about it. But check out the SCOTUSblog page for Unite Here Local 355 v. Mulhall (about bargaining away labor rights - employer promised not to oppose union representation and granted union access to its property, and union agreed to forego rights to picket, boycott, etc.).
Finally, we had some not-quite-employment-law cases that still drew some interest from the employment law crowd.
I'm not saying this was the most important week in employment law history . . . but in terms of quantity of Supreme Court employment law-related decisions, it has to be one of the busiest.

Thursday, June 27, 2013

What About Pennsylvania Employees in Out-of-State Same-Sex Marriages?

Well, that didn't take long. Earlier today I drafted a blog entry regarding the limited impact of the Supreme Court's same-sex marriage decisions on employers in Pennsylvania. In fairness to me, I did offer it as a "first take" while reserving the right to amend after giving things more thought.

To that end, I think there's a "catch" to the Supreme Court's ruling. What about employees who are lawfully married in one state and work in another state? For example, Delaware will recognize same-sex marriages starting on July 1, 2013. A lot of people live in Delaware and work in Pennsylvania (Philadelphia in particular). What about them?

Jeff Nowak has a great post on FMLA leave after the DOMA decision. As he points out, the FMLA defines family members based on residence:
[A] husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized. 29 C.F.R. 825.102 (emphasis added).
So, what about those employees residing in Delaware but working in Pennsylvania? But what about all that states' rights talk in the Supreme Court decision? Will Pennsylvania employers be required to recognize out-of-state same-sex marriages under the FMLA? And what about s2 of DOMA (allowing states to disregard legal same-sex marriages from other states)?

I'm sure similar issues arise in other statutes covering spouses.

For now, what if a Pennsylvania employee requests FMLA leave to care for his/her same-sex spouse in a state that recognizes the marriage? My gut reaction is that you're better off granting the leave than winding up the first post-Windsor test case. But the bottom line is that there will be some issues to sort out.

Image: SCOTUS Seal. Not official Use.

How Do SCOTUS Same-Sex Marriage Decisions Affect Pennsylvania Employers?

My first take? Not at all. I reserve the right to amend this post after I've given it some more time and thought - but let's walk through this.

Update (6/27/2013): What about Pennsylvania employees who live out-of-state where they are legally married to a same-sex spouse?

Hollingsworth v. Perry - The Prop 8 Case

First, let's look at Hollingsworth v. Perry (opinion). You may have seen headlines that the Supreme Court "struck down" Prop 8 (California's anti-same-sex marriage law). Not exactly.

The District Court struck down Prop 8, which was defended in part by proponents of the law (the California government was also a party). The proponents, and not the California government, appealed to the Ninth Circuit and then appealed again to the Supreme Court. The problem? The "proponents" didn't have standing to appeal the lower court's decision. So, as a practical matter, the appeals don't count. That means the lower court decision stands.

Hollingsworth's impact on Pennsylvania employers: The important thing to understand about this decision is that the Supreme Court did not address a constitutional right to same-sex marriage or the constitutionality of a state law banning it. The majority based its decision solely on standing. Accordingly, unless you're an employer hoping to intervene in a case to defend the constitutionality of a statute (in which case you probably lack standing), this decision will not impact employers.

(Note: This may impact California employers pending new legal wrangling over Prop 8).

United States v. Windsor - The DOMA Case

Now, let's look at United States v. Windsor (opinion). The Supreme Court held that a provision in the Defense of Marriage Act (DOMA) was unconstitutional. Specifically, the Court struck down s3 providing that "marriage" and "spouse" under federal statutes meant only heterosexual couples. The SCOTUS majority held that the law violated the equal protection and due process rights of same-sex married couples, with an emphasis on states' rights to define marriages for themselves.

Windsor's impact on Pennsylvania employers: It's important to understand what Windsor did not do. First, the holding was expressly limited to those "who enter into same-sex marriages made lawful by the unquestioned authority of the States." Also, despite headlines that SCOTUS struck down DOMA - it expressly left untouched s2:
Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States.
So, we have a pretty limited holding. Generally, Congress cannot deny federal benefits to same-sex marriages made lawful by a state, but states are still not required to recognize same sex marriages from other states.

Let's focus on Pennsylvania now. To my knowledge, Pennsylvania does not recognize any same-sex marriages. So there exist no "same-sex marriages made lawful" by Pennsylvania. And, Pennsylvania still has no obligation to recognize same-sex marriages from any other states. If anything, this decision supports the proposition that defining marriage is within the authority of the state.

So, I can't think of how this impacts Pennsylvania employers at all. I'm open to feedback and criticism, so drop a comment if you feel differently.

(Note: This decision may impact employers in states that do recognize same-sex marriage. For example, federal laws addressing benefits (ERISA) and family leave (FMLA) will likely be interpreted as defining "spouses" to include those lawful same-sex marriages).

Monday, June 24, 2013

BREAKING: SCOTUS Requires "But For" Causation in Title VII Retaliation Cases

Wow, huge employment law day at the Supreme Court! We have another opinion, this time in UTSMC v. Nassar (opinion here). Per a 5-4 majority:
Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in §2000e–2(m).
The "lessened causation test" referenced is also called the "motivating factor" or "mixed-motive" test. So, the majority endorsed the tougher standard in retaliation claims under Title VII. Again, I'll have more analysis once I've had an opportunity to read and digest the opinions.

BREAKING: SCOTUS Decides Supervisor Liability in Vance v. Ball State University

Minutes ago, the Supreme Court issued its long-awaited opinion in Vance v. Ball State University (opinion here). Per the Supreme Court's syllabus, the holding is:
An employee is a “supervisor” for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim.
Examples of "tangible employment actions" include:
[A] significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.
I'll have more analysis once I've had an opportunity to read and digest the opinions.

BREAKING: SCOTUS to Decide Noel Canning (NLRB Recess Appointments)

This just in . . . SCOTUS has agreed to hear NLRB v. Noel Canning (order here). The Supreme Court will address the constitutionality of President Obama's "recess" appointments to the NLRB. Specifically, whether I can stop putting scare quotes around recess.

You can read briefs and other filings at the SCOTUSblog case page. According to the Petition for Writ of Certiorari, the issues presented are:
1. Whether the President's recess-appointment power may be exercised during a recess that occurs within the session of the senate, or is instead limited to recesses that occur between enumerated sessions of the senate.
2. Whether the President's recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess.
Put another way: Under the Constitution, when can the President make the appointment, and when must the vacancy occur?

Per the Order, SCOTUS has also asked the parties to address:
In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: Whether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.
I have been on this one for a while. Here's some background on the issue from my post of January 2012. And some Lawffice Links from the DC Circuit's decision that the appointments were unconstitutional. I find this issue fascinating, and it has the potential to impact recess appointments across presidents and agencies.

Image: Supreme Court seal. Not official use.

Friday, June 21, 2013

SCOTUS: Arbitration Clause Prevails Over Class Actions (Shocker) - COTW #148

Well, the Supreme Court was extremely disappointing yesterday . . . they didn't decide a single case on my watch list. Since next week will likely be the last week of the term, things should get crazy around here with a number of important decisions.

The Supreme Court did, however, issue an opinion with employment law implications: American Express v. Italian Colors (opinion here). The case involved the enforceability of an arbitration clause, which is pretty much all you need to know to guess how this case turned out. SCOTUS LOVES ARBITRATION (at least a majority does).

So, what was the actual holding? I like the way Mike Gottlieb describes it on SCOTUSblog:
[A]n arbitration agreement that precludes arbitration brought by a class of plaintiffs is enforceable under the Federal Arbitration Act (FAA) even if the proposed class of plaintiffs proves that it would be economically infeasible for individuals to pursue arbitration on their own.
The case involved a credit card company against a potential class of merchants . . . so, what does this have to do with employment law?

Well, just maybe, employers want to include clauses in employment contracts that prohibit their employees from combining to file class action lawsuits . . . or say, FLSA collective actions. Thomas Kaufman has a nice rundown of arbitration decisions, noting:
[A]ny argument that FLSA collective actions are immune from class/collective action waivers because the FLSA (like the ADEA in Gilmer) itself provides for collective actions is also dead.
Michael Fox also has some "jottings" on the employment law implications of this case.

Bottom line: Class action waivers in arbitration clauses are starting to look pretty darned good . . . and enforceable.

Wednesday, June 19, 2013

Are Payroll Cards Illegal in Pennsylvania?

Are payroll cards illegal in Pennsylvania? Beats me. But we might find out soon.

A former McDonald's employee is suing the franchisee for paying her through a debit card.
Natalie Gunshannon, a single mother, 27, said she and other workers were paid through a JPMorgan Chase Payroll Card, which has a $1.50 fee for ATM withdrawals, a $10 inactivity fee after 90 days, and a 75 cent online payment fee per transaction and other fees.
According to the linked article, she is bringing the claim under the Pennsylvania Wage Payment and Collection Law (WPCL).

The WPCL does provide that "wages shall be paid in lawful money of the United States or check . . . ." 43 P.S. § 260.3. In the nearly 30 seconds I spent researching the issue for this blog post, I didn't see any further explanation.

If you pay Pennsylvania employees with these payroll cards, you should probably follow this case pretty closely.

Tuesday, June 18, 2013

EEOC Targets Criminal Background Checks

In the suit against BMW, the EEOC alleges that BMW disproportionately screened out African Americans from jobs, and that the policy is not job related and consistent with business necessity . . . . The policy is a blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the claimants' respective positions.
And, the second lawsuit:
In Illinois, the Chicago office of the EEOC filed a nationwide lawsuit based on discrimination charges filed by two rejected black applicants. That lawsuit charges that Dollar General conditions all of its job offers on criminal background checks, which results in a disparate impact against blacks.
Both lawsuits are disparate impact lawsuits, meaning that the criminal background check policies are not necessarily intended to discriminate based on race. But the policies disproportionately harm employees/applicants based on race. Employers can defend against such claims by establishing that the policy is job-related and consistent with a "business necessity."

If you'd like some guidance about how to avoid the EEOC's wrath, check out last year's enforcement guidance: Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

HT: Friend and employee benefits attorney, Mike Chittenden via email.

Image: EEOC seal. Not official use.

Monday, June 17, 2013

Employment Law SCOTUS Watch

Update (6/24/2013): We're still waiting on all of the following cases. We should get a cert. decision on Noel Canning at 9:30 am today.

We only have about two weeks left in the current Supreme Court season (or "term" as they call them). Some important employment law cases are still out there, and we should get some news as early as today:
  • Vance v. Ball State (SCOTUSblog page): This one was argued last November and it's not clear what is taking the Court so long. The issue is generally who is a "supervisor" for purposes of employer harassment liability.
  • Fisher v. University of Texas at Austin (SCOTUSblog page): The only other case argued in 2012 that has yet to be decided. This is the huge affirmative action case that's getting a ton of media attention. Technically, it's not an employment case but I take note of any decisions in which the Supreme Court addresses race discrimination.
  • UTSMC v. Nassar (SCOTUSblog page): Recently argued, but we're down to the end of the season so we should get a decision soon. This case will address whether Title VII retaliation claims can be "mixed motive" or instead require "but for" causation.
  • NLRB v. Noel Canning (SCOTUSblog page): This case hasn't even been accepted by the Supreme Court yet, but they have a conference scheduled for June 20th to discuss it. The smart money is on SCOTUS granting certiorari to decide whether President Obama's NLRB "recess appointments" were constitutional.
That's a lot of employment law goodness that should all come out within the next week or two. We could see developments as early as 10 AM this morning. Check out the newly redesigned SCOTUSblog for liveblogging at 10 AM for opinions (9:30 for orders).

UPDATE: The Supreme Court didn't address any of this today (Monday, 6/17/2013) and the next scheduled opinion release date is Thursday. In other words, from this Thursday through next Thursday we should get all of the above (that's a lot to cram into one week!).

Another Day, Another Setback for the NLRB Poster Requirement

Last Friday, the Fourth Circuit Court of Appeals struck down the NLRB's poster requirement in Chamber of Commerce v. NLRB (opinion here). From the Court's introduction:
We agree with the district court that the rulemaking function provided for in the NLRA, by its express terms, only empowers the Board to carry out its statutorily defined reactive roles in addressing unfair labor practice charges and conducting representation elections upon request. Indeed, there is no function or responsibility of the Board not predicated upon the filing of an unfair labor practice charge or a representation petition. We further note that Congress, despite having enacted and amended the NLRA at the same time it was enabling sister agencies to promulgate notice requirements, never granted the Board the statutory authority to do so. We therefore hold that the Board exceeded its authority in promulgating the challenged rule, and affirm.
The D.C. Circuit similarly struck down the rule last month. An interesting aspect of the Fourth Circuit decision is that two of President Obama's own appointees were on the unanimous panel.

While there is a chance the Supreme Court will take the case and side with the NLRB, I wouldn't bet on it. The NLRB poster requirement looks like it's done for awhile.

Image: Fourth Circuit seal is public domain as work of federal government. Not official use.

Thursday, June 13, 2013

Black Swan Unpaid Interns Win FLSA Claim - COTW #147

Some unpaid interns from Black Swan sued the production company for actual wages, and guess what? They won. A couple days ago the Southern District of New York issued its opinion in Glatt v. Fox Searchlight Pictures (opinion here).

The Court broke it down into two issues:

1. Were the interns employees under the FLSA?
2. If so, did they fall under the narrow "trainee" exception?

On the first issue, the Court applied Second Circuit utilizing the "formal control" and "functional control" tests. This determination will vary from jurisdiction to jurisdiction. But, as the Court noted, "in the end, it is all about control." And that's pretty consistent no matter what court you're in.

The second issue is the particularly interesting part of this case. In determining whether the interns fell under the trainee exception the Court relied heavily on the six factors identified in a DOL fact sheet from 2010 (I blogged about this back in 2010):

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

The Court ruled that the unpaid interns were employees who did not fall under the trainee exception. Now, a Time magazine article is declaring this decision The Beginning of the End of Unpaid Internships. I don't know about that . . . but I do know that this case is generating a ton of buzz, and it's difficult for unpaid internships to be FLSA-compliant.

Lawffice Links - Snowden: Whistleblower or Criminal

Employment law doesn't usually entail top secret national surveillance programs, accusations of treason, and international media firestorms . . . so the least I can do is bake some Lawffice Links when it does:

  • THE ORDER: The top secret order that kicked off the media coverage (fun fact: the judge who signed the order, Roger Vinson, is the same Florida judge who ruled that Obamacare was unconstitutional and struck down the entire law).
  • TREASON: Senator Nelson accuses Edward Snowden of treason.
  • DEBATE: New York Times Room for Debate:Leak Case, a Whistle-Blower or a Criminal.
  • LEGAL RISKS: CNN Video: Legal Risks for NSA Leaker.
  • WHISTLEBLOWER PROTECTION: Loopholes Exclude Intelligence Contractors Like Snowden from Whistleblower Protections.

Monday, June 10, 2013

BREAKING: SCOTUS Defers to Arbitrator on Class Arbitration

A few minutes ago, the Supreme Court released its opinion in Oxford Health Plans, LLC v. Sutter (opinion here). I think there was some hope/fear/expectation that SCOTUS would issue a groundbreaking opinion about when contracts provide for class arbitration.

Instead, the Court essentially just said (paraphrasing): "meh, whatever the arbitrator says is fine." Or, in the actual words of Justice Kagan for a unanimous court:
In sum, Oxford chose arbitration, and it must now live with that choice. Oxford agreed with Sutter that an arbitrator should determine what their contract meant, including whether its terms approved class arbitration. The arbitrator did what the parties requested: He provided an interpretation of the contract resolving that disputed issue. His interpretation went against Oxford, maybe mistakenly so. But still, Oxford does not get to rerun the matter in a court. Under §10(a)(4), the question for a judge is not whether the arbitrator construed the parties’contract correctly, but whether he construed it at all. Because he did, and therefore did not “exceed his powers,” we cannot give Oxford the relief it wants.
Affirming the Third Circuit. Justice Alito (joined by Justice Thomas) filed a concurring opinion.

Friday, June 7, 2013

Lactation Discrimination - COTW #146

In EEOC v. Houston Funding II, Ltd., the Fifth Circuit held that "lactation is a related medical condition of pregnancy for purposes of the PDA (Pregnancy Discrimination Act)." In other words, lactation discrimination is illegal. The Court reversed the district court's decision (which was Case of the Week #79).

The holding is not all that shocking, but the factual background is a little unusual:
Venters told Fleming that she was breastfeeding her child and asked him to ask Cagle whether it might be possible for her to use a breast pump at work. Fleming stated that when he posed this question to Cagle, Cagle “responded with a strong ‘NO. Maybe she needs to stay home longer.’ “ On February 17, 2009, Venters called Cagle and told him her doctor had released her to return to work. Again, she mentioned she was lactating and asked whether she could use a back room to pump milk. After asking this question, Venters testified that there was a long pause, and when Cagle finally responded, he told her that they had filled her spot.
So, this sounds a little bit like an accommodation case. But it's not. The Court made clear that it's decision to allow the woman to proceed with her sex discrimination claim was not an accommodation case:
The issue here is not whether Venters was entitled to special accommodations—at the time, she was not entitled to special accommodations under Title VII—but, rather, whether Houston Funding took an adverse employment action against her, namely, discharging her, because she was lactating and expressing breast milk.
And, in case that wasn't clear enough, Judge Edith Jones issued a concurring opinion:
[T]his court held that the PDA does not mandate special accommodations to women because of pregnancy or related conditions. It follows that if Venters intended to request special facilities or down time during work to pump or “express” breast milk, she would not have a claim under Title VII or the PDA as of the date of her lawsuit. Indeed, if providing a plaintiff with special accommodation to pump breast milk at work were required, one wonders whether a plaintiff could be denied bringing her baby to the office to breastfeed during the workday.
Bottom line: lactation discrimination is unlawful, but failure to accommodate is probably not.

Wednesday, June 5, 2013

Fired for What!? - Social Media Triple Play

When it rains it pours. Three social media stories for you today (although the last one is not a firing . . . yet).
Got a great termination story? Drop a comment or tweet #Fired4What.

Tuesday, June 4, 2013

In Review: PLI Employment Law Yearbook 2013

The fine, fine folks at the Practising Law Institute sent me a review copy of their Employment Law Yearbook 2013. I have to admit, I was skeptical at first . . . I don't ordinarily research the law by year. So why would I want a "yearbook"?

Well, the book is not just 2013 case law. Which is great news, because it makes the book a handy resource for nailing down the basics (like the prima facie elements of assorted employment law claims, for example). As a desk manual for the basics, the book does a great job.

But, if you're like me, you can recite the Burlington retaliation standard from memory, and mumble the McDonnell Douglas burden-shifting framework in your sleep. I don't say this to brag (you'd be surprised how few people are impressed by this skill), but as a setup to illustrate where this book really shines.

Sure, you're familiar with retaliation claims. But are you familiar with the Supreme Court's decision in 2011 recognizing third-party retaliation? Maybe you are familiar with that case (Thompson v. N. Am. Stainless) . . . but have you seen the analysis of such claims from the District of D.C. and the Northern District of Florida (now you're just lying!).

That's the really great thing about this book. It takes the basics, and then tacks on new developments. It not only touches on new developments, but provides detail with summaries of district and circuit court decisions from the past few years. It's a great way to get caught up in areas that you may have heard of (like third party retaliation) but probably haven't actually litigated or kept up with the subsequent cases applying the new precedent.

Weighing in at 1290 pages of actual content (excluding index, table of cases, etc.), PLI's Employment Law Yearbook covers a broad range of topics from wage and hour to OFCCP to privacy law to guarding trade secrets to the ADA to . . . well, you get the idea. It covers a lot. Overall, the book is a great resource for the basics and cutting edge employment law developments alike.

Disclaimer: I did not receive any compensation aside from a copy of the book with a simple request to review it and provide my thoughts.