Tuesday, October 29, 2013

Obamacare Individual Mandate Extension

This should hardly come as a surprise given the . . . shall we call it, "less than optimal" . . . rollout of the Affordable Care Act (aka "Obamacare") website. The Associate Press reports:
With website woes ongoing, the Obama administration Monday granted a six-week extension until March 31 for Americans to sign up for coverage next year and avoid new tax penalties under the president's health care overhaul law.
The extension applies to 2014 only.

A little known Lawffice Space secret: Before I became an attorney I was an information technology consultant in the DC area for about eight years, working primarily on federal contracts. I assure you that federal contractors are perfectly capable of creating databases, designing websites, capturing data, integrating multiple systems, and collaborating with multiple contractors to bring the pieces together - especially with the hundreds of millions of dollars supposedly available here. It's disappointing, and frankly baffling, how and why something as important as healthcare.gov could go so terribly wrong.

Contractors are blaming the federal government for last-minute changes and a lack of full system testing. It sounds like they just pushed something into production before it was ready; probably because of the *ahem* firm (until the Obama administration arbitrarily changes them) deadlines. In any event, the technology will surely get fixed. Meanwhile, the policy debate will rage on.

Monday, October 28, 2013

Friendly Reminder Re: Office Halloween Parties

Is your office planning a Halloween party? Or allowing people to dress up for the day? Chances are, the vaaaast majority of people will exhibit good taste and common sense. But, as a friendly reminder, people like this exist:


For my email subscribers, if the picture is not embedded, click here to see the picture online, along with some information (according to Gawker) about the folks who thought it would be a good idea to dress as a bloodied Trayvon Martin (in blackface - no, not just makeup to darken his skin tone - blackface) and Zimmerman. I'd like to believe they would at least be smart enough not to wear something like this to work . . . then again, they were apparently not smart enough to keep it off of social media (or better yet, forego the costumes altogether).

You're welcome.

In Review: Unprecedented - The Constitutional Challenge to Obamacare

It's not everyday that a friend and law school classmate publishes a book that overlaps with my profession. In fact, I don't think it has ever happened before. So, I guess you could call it . . . wait for it . . . Unprecedented! <- See what I did there. My Mason Law classmate, Josh Blackman, published Unprecedented: The Constitutional Challenge to Obamacare.

Unprecedented tells the tale of the 2012 blockbuster Supreme Court case, NFIB v. Sebelius (aka the constitutional challenge to the Patient Protection and Affordable Care Act or "Obamacare"). Prof. Blackman takes us from the casual conversations that spawned the strategy for the litigation, to the scramble of state attorneys general to initiate the litigation, to the lower court decisions, and ultimately to the Supreme Court case itself.

Prof. Blackman does a particularly good job of explaining the context of the litigation, and the history of health care reform leading up to the ACA. Readers will learn about the Reagan-era (yes, Reagan) legislation that made the individual mandate a necessary component of the ACA, the early conservative (yes, conservative) mandate proposals, and the similar flips and flops from prominent liberal proponents of the ACA (including a trip down not-so-distant memory lane of Obama's opposition to "Hillarycare's" mandate).

I thoroughly enjoyed Unprecedented from beginning to end. Prof. Blackman was present for a number of "behind the scenes" events, which provides a personal touch to a sometimes-sterile topic. Although I have greater familiarity with the law in this area than most, I still think it is accessible and understandable to laypeople (or attorneys who have only the vaguest understanding of it). The book strikes a nice balance of providing in-depth coverage while not getting bogged down in minutiae.

I don't think Blackman's ideology is any secret (I mean, he once had a John Galt license plate). That said, I think his commentary stayed pretty objective, although he did include some critical analysis of the law and the courts' decisions. I think people of all political stripes will enjoy Unprecedented and learn about health care reform along the way.

Friday, October 25, 2013

Who Decides UC Claims from UC Referees? - COTW #165

This Case of the Week answers an interesting question: Who decides unemployment compensation claims filed by unemployment compensation referees? I guess I had never thought about it before - but they're employees and presumably get terminated from time to time and seek UC benefits. Then what?

In Henderson v. UCBR (opinion here), the claimant was a referee. UC referees conduct the "trial" level hearings in UC benefits cases in Pennsylvania. Here, the referee was accused of dissuading claimants from pursuing their claims, including Ms. Huffman (this gets a little confusing because in the Commonwealth Court's decision, the "Claimant" is the UC referee):
Ms. Huffman testified that when she went before Claimant, Claimant never turned on the recorder and instead asked Ms. Huffman why she was there. Ms. Huffman testified that Claimant informed her that her appeal was untimely, there was nothing that Claimant could do, and thus it would be a waste of their time to hold a hearing. Ms. Huffman further testified that Claimant never allowed her to testify as to why her appeal was untimely or why she qualified for financial hardship. Ms. Huffman testified that she withdrew her appeal because Claimant told her to do so.
I think it goes without saying . . . the referees are not supposed to do that. The referee was then terminated.

So, who decides whether this referee gets UC benefits?
The Service Center determined that Claimant was ineligible for unemployment compensation benefits under Section 402(e) of the Law. (Certified Record (C.R.), Item No. 4.) Claimant appealed the determination, and, because Claimant was a former referee, the Board assumed jurisdiction over the appeal pursuant to Section 504 of the Law. The Board assigned a hearing officer to hold an evidentiary hearing and to certify the record to the Board for review.
So, the Board (i.e. UCBR) made the determination. The former referee (now-claimant) argued that the UCBR should have recused itself because it was effectively her employer and the judge of her claim.

Not a bad point . . . isn't there a conflict here? The Commonwealth Court says nope. First, the referees are actually appointed by the Secretary of Labor and Industry, not the UCBR, and the UCBR was not involved in the investigation or discharge of this referee. Furthermore, who the heck else is gonna do it? Or, as the Court described it:"[T]he rule of necessity prevents recusal of all members of an agency because an agency is either statutorily or constitutionally bound to carry out its duties."

The Court addressed a number of other issues but ultimately affirmed the UCBR's ruling that the referee engaged in willful misconduct and was ineligible for benefits.


Thursday, October 24, 2013

Conde Nast Cuts Internship Program

Last year, I blogged about Unpaid Internships Under Attack! One specific case I cited was a lawsuit against magazine Harper's Bazaar, published by Hearst. More recently, I blogged that unpaid interns on the set of Black Swan had actually prevailed on their FLSA claims.There have been several lawsuits filed by unpaid interns seeking compensation, including some claims against publisher Conde Nast.

Well, guess what? Conde Nast publications will end their internship program beginning in 2014. I suspect many employers will view their options as: 1. Kill the internship program; 2. Pay the interns; 3. Keep free interns and eat the litigation costs if they arise. There is another option though. Employers with unpaid internship programs could ensure compliance with the DOL guidance on this issue. The problem, of course, is that many of the programs in place do not comply, constraining the employers' options.

HT: Josh Blackman.

Tuesday, October 22, 2013

New Jersey Recognizes Same Sex Marriages - Why it Matters for Pennsylvania Employers

On Monday, New Jersey became the fourteenth state to allow same sex marriages.A trial court ordered that such marriages would begin on Monday. Governor Christie appealed to the state Supreme Court, but after a an adverse preliminary ruling he saw the writing on the wall. He withdrew his appeal.

Why does this matter to Pennsylvania employers? Well, if a Pennsylvania employer has an employee who lives in New Jersey and has a same sex spouse, then he or she may qualify for FMLA leave to care for that spouse. If a same sex couple gets married in New Jersey, then they are treated as married for federal tax purposes regardless of where they live. Such couples are also recognized as "spouses" under the Department of Labor's guidance on ERISA (addressing benefits plans).

Welcome to the post-Windsor world! Employers must keep tabs on what other states are doing with same sex marriages to properly handle taxes, benefits, FMLA leave, and a host of other federal law issues.

Tuesday, October 15, 2013

SCOTUS Dismisses Constitutional Age Discrimination Case

Oh, Madigan v. Levin, we hardly knew ye. I blogged about this case when cert was granted, it was just my Case of the Week two weeks ago, and I briefly addressed it again in my annual SCOTUS preview. The Court was supposed to address whether a public employee had to comply with the administrative exhaustion requirements of the ADEA, or if the employee could instead just file an age discrimination claim under the Equal Protection Clause of the Constitution and skip that EEOC (or other agency) stuff.

Today, the Court issued this order: "The writ of certiorari is dismissed as improvidently granted." Or "DIG'd" as the kids say. Hardly a surprise, SCOTUSblog suggested this might be the outcome following oral arguments. Happy trails Madigan v. Levin.

Friday, October 11, 2013

"Bow at the Altar . . . of Political Correctness" - COTW #164

Gender stereotyping claims, meet the super-manly world of ironworkers - men's men. Macho men. Masculine men. What "real men" should be (you get the idea). In EEOC v. Boh Brothers Construction Co. (opinion here), the Fifth Circuit, sitting en banc, provided us with 68 pages of analysis on same-sex gender stereotyping harassment.

Let's start with the harassing conduct. The crew superintendent called the plaintiff "pu--y," "princess," and "fa--ot"; often approached him from behind and simulated intercourse; exposed his penis while urinating in front of him; and teased him for using Wet Ones instead of toilet paper because (and I quote) that's "kind of gay."

The majority concluded that the evidence was sufficient to support a jury verdict that the defendant was liable for the harassment under Title VII. The divergent opinions in this case highlight a rift among judges when analyzing "shop talk" types of cases. One particular dissent pulled no punches in its condemnation of the majority (pardon the lengthy cut-and-paste, but this really highlights the differences among the judges):
By deftly extending the applicable law, Judge Elrod and the en banc majority—with the best of intentions—take a deep bow at the altar of the twin idols of political correctness and social engineering. Because that is a demonstrable departure from reason and experience and imposes an unsustainable burden on private employers in Texas, Louisiana, and Mississippi, I respectfully dissent . . . . 
In a world in which comments on Wet Wipes or pink shirts can be considered discrimination on account of sex, the American workplace becomes more like a prison than a place for personal achievement, individual initiative, and positive human interaction; one's speech is chilled as a condition of keeping one's job. As Judge Jones accurately observes, the majority opinion “portends a government-compelled workplace speech code”—“a ‘code of civility’ [imposed] on the American workplace.” Instead of resisting such an Orwellian regime, in which Big Brother (in the form of the EEOC or otherwise) constantly monitors the worksite to detect “improper” words and thoughts, the en banc majority fosters it without Congressional mandate. 
The hypersensitivity that is blessed unintentionally by the majority nudges the law in a direction that hastens cultural decay and undermines—if even just a little bit—an important part of what is good about private employment in the United States. Societies, and the legal systems of which they are mutually supportive, decline slowly, but ultimately with tragic consequence: “Not with a bang but a whimper.”
Wow, tell us how you really feel! So, what's the takeaway for employers? Crackdown on same-sex harassment and gender stereotyping. The dissent demonstrates that employers might have a receptive ear in litigation - but trust me, if you're counting votes at a circuit court in an en banc review of a jury verdict then you've already lost even if you win. That type of legal battle doesn't come cheap.

Thursday, October 10, 2013

SCOTUS 2013-14 Employment Law Preview

Slim employment law pickings at the Supreme Court this term (at least among cases granted thus far). As a reminder, I broke labor law into a separate preview this year. Let's check out the docket:

Age Discrimination Claims Under the Constitution
In Madigan v. Levin, the Court will hopefully decide:
Whether the Seventh Circuit erred in holding, in an acknowledged departure from the rule in at least four other circuits, that state and local government employees may avoid the Federal Age Discrimination in Employment Act’s comprehensive remedial regime by bringing age discrimination claims directly under the Equal Protection Clause and 42 U.S.C. § 1983.
In other words, can public employees skip all that administrative stuff under the ADEA, like filing a charge with the EEOC, and just go straight to court with a claim under the Equal Protection Clause? And I say "hopefully" the Court will decide the issue because there are significant procedural hurdles, and early reports from oral arguments suggest the case might get DIG'd (or otherwise decided without resolving the big question).

ERISA Statute of Limitations
In Heimeshoff v. Hartford Life and Accident Ins. Co., the Supreme Court granted certiorari on one specific question: "When should a statute of limitations accrue for judicial review of an ERISA disability adverse benefit determination?" Oral argument is set for October 15, 2013.

SOx Retaliation
In Lawson v. FMR LLC, the Supreme Court will likely determine:
Is an employee of a privately-held contractor or subcontractor of a public company protected from retaliation by section 1514A (of the Sarbanes-Oxley Act)?
Argument on November 12, 2013.

Employment Law-ish
And then there are the cases that are kinda sorta employment law-ish. Like, U.S. v. Quality Stores, Inc. (Whether severance payments made to employees whose employment was involuntarily terminated are taxable under the Federal Insurance Contributions Act, 26 U.S.C. 3101 et seq.) and an obligatory arbitration case, BG Group PLC v. Republic of Argentina (In disputes involving a multi-staged dispute resolution process, does a court or instead the arbitrator determine whether a precondition to arbitration has been satisīŦed?).

So, to recap - an age discrimination case that will only impact public employees that probably won't even be resolved by the Court; an ERISA statute of limitations case; a SOx case applicable only to (sub)contractors of certain public companies; a FICA case; and an arbitration question. I'm having trouble getting pumped up for this term. There's some chance SCOTUS will grant cert on an interesting pregnancy accommodation issue though so cross your fingers!

Tuesday, October 8, 2013

Fired for What!? - My Little Brony and Hot Housewife

I haven't done a Fired for What!? in awhile . . . so let's do a double-feature!

  • My Little Brony - A man claims he was fired for coming out to his co-workers as a brony. Don't know what a brony is? Watch this short YouTube clip. In short: a 'brony' is a grown man who watches My Little Pony (Bro + Pony = Brony). It's probably not a protected class, although maybe you could put together a colorful (very colorful) gender stereotyping claim . . . . 
  • Hot Housewives - A woman claims she was fired after appearing on the cover of Playboy's Hot Housewives issue. She has filed a lawsuit claiming that she received permission to do the shoot beforehand. Can an employer fire an employee for appearing in Playboy? Probably (unless the employer treats men and women differently in this regard). Can the employer give her permission to do it and then fire her? Well, now you might have a promissory estoppel issue. 
Correction: Yesterday, I erroneously listed the oral argument date for Harris v. Quinn as November 13, 2013. In fact, it has not been scheduled yet. My bad (I misread the listing I was using). The corrected information now appears on the post.

Monday, October 7, 2013

SCOTUS 2013-14 Labor Law Preview

Another Supreme Court season is upon us! The Court has a pretty decent lineup of labor law cases this year. I'll break the employment law cases into a separate post. Let's cut to the chase:

Recess Appointments
NLRB v. Noel Canning will probably get the most media attention of the bunch. The case will address whether President Obama's appointments to the NLRB were constitutional. Per the cert. petition, the questions presented are:
1. Whether the President's recess-appointment power may be exercised during a recess that occurs within a 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.
This case could have a big impact on the President's recess-appointment power beyond just the NLRB. Argument set for December 4, 2013.

Compensation for Changing Clothes
Sounds silly, right? But, in Sandifer v. U.S. Steel, steel workers claim they spend up to a few hours per week changing into their work attire. Under an FLSA exception, "changing clothes" may be excluded from compensation by a CBA.

Here, the "clothes" include things like flame-retardant jackets, metatarsals (steel-toed boots), and "snoods" (head and neck protectors). In other words, "donning and doffing" safety gear that is ordinarily compensable - but the gear is kind of clothes-y so maybe it's not. SCOTUS will hopefully draw the line.

Fun fact: I interned at a U.S. Steel plant in Pittsburgh in the IT department in 1998. When I went into the mill I wore the jacket and metatarsals (and hardhat and goggles), but no "snood" - I guess they didn't care that much about me ;-). Argument set for November 4, 2013.

Mandatory Dues
In Harris v. Quinn, the Supreme Court was petitioned to review the following questions:
1. May a State, consistent with the First and Fourteenth Amendments to the United States Constitution, compel personal care providers to accept and financially support a private organization as their exclusive representative to petition the State for greater reimbursements from its Medicaid programs?

2. Did the lower court err in holding that the claims of providers in the Home Based Support Services Program are not ripe for judicial review?
This could make union dues-collecting more difficult. Set for argument on November 13, 2013. Update: Not yet set for argument, but probably January of February 2014.

Labor-Management Organizing Agreements
In Unite Here Local 355 v. Mulhall, the employer promised not to oppose union representation and granted union access to its property, and the union agreed to forego rights to picket, boycott, etc. The question presented:
Whether an employer and union may violate § 302 [of the Labor-Management Relations Act] by entering into an agreement under which the employer exercises its freedom of speech by promising to remain neutral to union organizing, its property rights by granting union representatives limited access to the employer’s property and employees, and its freedom of contract by obtaining the union’s promise to forego its rights to picket, boycott, or otherwise put pressure on the employer’s business?
Set for argument on November 13, 2013 (same day as Harris v. Quinn - it's a labor law doubleheader!).

Friday, October 4, 2013

SCOTUS Returns on Monday with Age Discrimination Case - COTW #163

It takes more than a federal government shutdown to stop the Supreme Court! They granted certiorari in eight cases on Monday, including two labor and employment law issues. I may jump on them next week - in the meantime check out Ross Runkel's blog for details on the issues in the two cases:
  1. Constitutionality of compelled payments to labor union; and
  2. FICA Tax on Severance Payments to Involuntarily Terminated Employees.
The Court has announced that it will remain open and continue to hear oral arguments until October 11 (at which point they'll reassess the situation if need be).

The first day of oral arguments features an interesting confluence of age discrimination statutory law and constitutional law. When plaintiffs file age discrimination claims under the ADEA they must "exhaust their administrative remedies" - i.e. they must go through the EEOC process before running to court.

However, public employees can file suit under the United States Constitution (and a statute that allows lawsuits for infringement of constitutional rights, 42 USC s1983). Specifically, the Fourteenth Amendment's Equal Protection Clause prohibits certain types of discrimination. Can 14th Am plaintiffs just run straight to court without jumping through those administrative hurdles?

SCOTUS will hopefully answer that question (there's another qualified immunity issue at play here too). The case is Madigan v. Levin, you can check out the SCOTUSblog page here, and my initial post when the Supreme Court granted cert here.

Tuesday, October 1, 2013

They're Heeeerrrreeee . . . Obamacare Exchanges Go Live

Just a quick reminder that the Affordable Care Act's Health Insurance Marketplace is open for business! I don't know what it says about me as a person that the first thing I did when I got up this morning was check out the new website to see what it looked like . . . . but that's what I did.