Saturday, November 30, 2013
Posted by Philip Miles at 9:15 PM
Tuesday, November 26, 2013
All joking aside, the list has once again included some of my favorite employment law blogs. My only complaint is that all but one of the employment law blogs have already been on the list, most of them several times now. The only new blog comes from a BigLaw firm with 800 attorneys. There has to be something edgy/hip/underground to dig up, right?
Congrats to the bloggers on the list (in no particular order):
- Dan Schwartz - Connecticut Employment Law Blog
- Seyfarth Shaw - Trading Secrets
- Molly DiBianca (and others) - Delaware Employment Law Blog
- Jeff Nowak - FMLA Insights
- Eric Meyer - The Employer Handbook
- Donna Ballman - Screw You Guys, I'm Going Home
- Jon Hyman - Ohio Employer's Law Blog
Also, another shoutout to my Mason Law classmate, Josh Blackman, for returning to the list this year (he occasionally has some employment law stuff too).
I'm outta here for the holidays. Have a happy Thanksgiving! The campaign for the 2014 Blawg 100 starts Monday!
Friday, November 22, 2013
“Whether a case is a pretext case or mixed-motives case is a question for the court once all the evidence has been received.” Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1098 (3d Cir.1995) (citation omitted). In a pretext case, the plaintiff must show that gender was a “determinative factor” in an adverse employment decision, while in a mixed-motives case, the plaintiff need only show that gender was a “substantial motivating factor.” See Watson v. SEPTA, 207 F.3d 207, 215 (3d Cir.2000). A plaintiff must demonstrate with “sufficiently direct” evidence that gender was a motivating factor in the employer's decision to warrant a mixed-motives instruction. See id.
The District Court did not commit plain error in treating this as a pretext case and instructing the jury accordingly. Kull did not present “sufficiently direct” evidence that gender played a role in the University's decision. The evidence Kull presented was circumstantial. He testified that certain women had been tenured despite having fewer publications, while a man's contract had not been renewed. From this circumstantial evidence, the jury was to conclude that the University applied less stringent criteria to women. It is not “sufficiently direct” evidence to justify a mixed-motives instruction under Watson.The Court then affirmed the judgment in favor of the University.
Thursday, November 21, 2013
- For a description of vaping and one user's positive experience, check out I'm a Smoker and I Love e-Cigarettes.
- Not everyone is a fan - The National Business Group on Health released this fact sheet: What Employers Need to Know About Electronic Cigarettes.
- Bloomberg has coverage: E-Cigs Wafting Into Workplace 25 Years After Smoking Ban.
- And Penn-Live: Should Co-Workers be Allowed to Puff on E-Cigarettes at the Office?
- How can employers prohibit vaping in their employee handbooks? - E-cigarettes: A Burning New HR Issue (spoiler alert: just add vaping and electronic cigarettes to your existing no smoking policy).
Of course, maybe employers don't want to ban e-smoking in the workplace. Other options include: do nothing and let people e-smoke where they want (I have a feeling this will annoy at least one person in every office - but maybe I'm wrong); or designate an area for vaping. If you have a workplace vaping policy you'd like to share, drop a comment.
Tuesday, November 19, 2013
Maintaining Competence To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.Yup, some level of tech-knowledge is now mandatory.
Read more about the changes to the rules in The Disciplinary Board's Newsletter.
UPDATE: As a point of clarification, the guest post was the only thing on the line (no money).
Thursday, November 14, 2013
Other than that, you know what's unusual about this decision? The fact that there's really nothing unusual about this decision. The Court simply applies the McDonnell Douglas burden shifting framework to conclude that the employer proffered legitimate non-discriminatory reasons for terminating the employee, and she could not establish pretext. Summary judgment for the employer.
I should note what the Court did not hold. The Court did not specifically address whether transgender/gender identity discrimination is protected by Title VII and the PHRA because the employer conceded that the employee had set forth a prima facie case. Nevertheless, as I've stated previously, I think the writing is on the wall on this issue . . . transgender/gender identity discrimination will be treated as sex discrimination by courts (whether ENDA passes or not).
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?Sounds complicated, so I baked some Lawffice Links to help sort things out:
- SCOTUSblog has a nice argument preview: Unite or disunite - another roadblock to union organizing and collective bargaining.
- How big is this case? Even the NYT is on it: Supreme Court to Take Up Challenges to Union Practices (featuring the Sachs quote above).
- Let's not forget the transcripts from the oral arguments.
- Sachs and fellow Harvard prof. Jack Goldsmith have a blog called On Labor, with extensive coverage of the case and arguments.
- Reuters also chimed in with coverage of the arguments: Supreme Court weighs employer-union organizing deals.
Now we just sit back and wait for the Supreme Court to drop an opinion on us.
Monday, November 11, 2013
The mandate requires employers to provide coverage for contraception and sterilization procedures in their employee health-care plans on a no-cost-sharing basis. Noncompliance carries heavy financial penalties and the risk of enforcement actions.
The plaintiffs are two Catholic families and their closely held corporations—one a construction company in Illinois and the other a manufacturing firm in Indiana. The businesses are secular and for profit, but they operate in conformity with the faith commitments of the families that own and manage them.The plaintiffs object for religious reasons to providing the mandated coverage. They sued for an exemption on constitutional and statutory grounds
. . . . .
These cases—two among many currently pending in courts around the country—raise important questions about whether business owners and their closely held corporations may assert a religious objection to the contraception mandate and whether forcing them to provide this coverage substantially burdens their religious-exercise rights. We hold that the plaintiffs—the business owners and their companies—may challenge the mandate. We further hold that compelling them to cover these services substantially burdens their religious-exercise rights. . . . . [We] remand with instructions to enter preliminary injunctions barring enforcement of the mandate against them.As SCOTUSblog notes, "the Tenth Circuit ruled that profit-making companies can exercise religious beliefs and thus are protected from the mandate, while the Third and Sixth Circuits have ruled in the opposite way." Meanwhile, the D.C. Circuit took a "split approach" that "profit-making corporations cannot make a religious challenge . . . however, if the firm is owned by only a few individuals, they can challenge it to defend their own religious objections, and they may well win."
Due to the wide circuit split, the Supreme Court will likely rule on this issue. It touches on some hot topics in the law, such as religious freedom, corporate personhood, and of course, Obamacare. So, I expect that it will get a fair amount of mainstream media attention.
Image: Seventh Circuit seal in public domain. Not official use.
Posted by Philip Miles at 11:14 AM
Friday, November 8, 2013
In Camesi v. UPMC (opinion here), the Third Circuit addressed an appeal after "manufactured finality." Plaintiffs filed FLSA actions contending their employers failed to pay them for work performed during meal breaks. The FLSA allows collective actions, but in these cases (did I mention the appeal involved consolidated cases?) the district court decertified the classes and dismissed the opt-in plaintiffs.
The named plaintiffs wanted the Third Circuit to review the decertification decisions, but there was a problem. Generally, parties cannot appeal to the Third Circuit until the lower court renders a final decision. Decertification is generally not a final decision because the named plaintiffs continue to have live claims. So, what do the plaintiffs in these FLSA claims do? They voluntarily dismiss their claims with prejudice to "manufacture finality."
Now that all the claims are gone, can the plaintiffs appeal the decertification decisions to the Third Circuit? Nope. The Third Circuit held:
In sum, the District Courts’ orders decertifying the collective actions were interlocutory. Appellants were not entitled to appeal these orders directly under § 1291. Nor can Appellants avoid the strong presumption against interlocutory review of such orders by voluntarily dismissing all of their claims under Rule 41. Thus, these appeals must be dismissed for lack of appellate jurisdiction.The appeals were dismissed for lack of jurisdiction.
Tuesday, November 5, 2013
ESPN reports that Miami Dolphins offensive lineman Richie Incognito delivered the following voicemail to one of his teammates:
Hey, wassup, you half n----- piece of s---. I saw you on Twitter, you been training 10 weeks. [I want to] s--- in your f---ing mouth. [I'm going to] slap your f---ing mouth. [I'm going to] slap your real mother across the face [laughter]. F--- you, you're still a rookie. I'll kill you.Aside from the racial slurs, bodily functions, and threats of violence, it sounds like a pretty healthy relationship! Incognito has now been suspended indefinitely, and is reportedly "done."
In case you're wondering whether this was just a momentary lapse in judgment, please allow me to assure you that he has always been a classless lowlife. PennLive reports on his ejection from a 2002 game against Penn State (a game I happened to attend - I remember the play, but only for the "game-breaking interception" which was probably the loudest I've ever heard Beaver Stadium). The 2002 article also notes Incognito spitting on a player earlier that season.
I have a few observations about ENDA:
1. "Because of" is key language. The proposed legislation prohibits discrimination "because of" an employee's real or perceived sexual orientation or gender identity. The retaliation provision is similarly based on the word "because." What does that mean? Well, based on Gross v. FBL and UTSMC v. Nassar it almost certainly means that sexual orientation and gender identity claims would have to meet the higher "but for" standard, as opposed to the mixed motive (or "motivating factor") analysis applied to Title VII discrimination cases.
2. Don't get hung up on "gender identity". I have seen a lot of Internet banter over the inclusion of gender identity as a protected class. However, this is most likely a non-issue. The EEOC already treats gender identity discrimination as unlawful sex discrimination under Title VII. And, the District of DC and the Eleventh Circuit treat gender identity discrimination as sex discrimination as well. I wouldn't go so far as to say this is settled law all over the country . . . but the writing is on the wall.
3. The religious exception battleground. If this thing gets close to passing, I expect the religious exemption to be a huge battleground. ENDA includes an exemption for religious organizations excluded from Title VII (EEOC guidance on the topic here). However, Senator Toomey and others have already stated that they will introduce amendments to strengthen protections for religious organizations. Religious freedom for employers and corporations has been something of a hot topic itself lately. The Supreme Court weighed in on the ministerial exception to employment discrimination laws in Hosanna-Tabor v. EEOC. The Supreme Court is also expected to address corporate religious freedom in the context of the ACA's ("Obamacare's") contraceptive mandate.
ENDA still has a long way to go. John Boehner has already indicated it will have a tough time in the House of Representatives. Between the presidential push, and the (admittedly limited) bi-partisan support in the Senate, this may be the year.
Image: Capitol Building photograph from http://www.visitthecapitol.gov/about-the-capitol (work of federal government).
Monday, November 4, 2013
One note reminds women to "Think Lauren Bacall, not Marilyn Monroe." I gotta be honest here . . . I'm 37 and have absolutely no idea what that means. I'm sure younger associates are similarly clueless. Perhaps an example from the past 50 years would be appropriate here?
In any event, the recommendations are not necessarily bad advice - the memo just comes off as condescending and sexist.
Friday, November 1, 2013
The charge is based in part on the following allegations:
[F]aculty generally received one of the following merit raises: $5,000, $3,000, $666, $0. Dean Boise manipulated [the] merit raise increases in order to . . . award the bulk of AAUP organizers a six-six-six wage increase . . . . In effect Dean Boise has called AAUP's organizers and AAUP Satan.Maybe it's just me, but that sounds like a bit of a stretch.
HT: Volokh Conspiracy post emailed to me by Mike Chittenden of Miller & Chevalier.