Saturday, November 30, 2013

Lawffice Space Site Redesign

I made a few changes to the website. So, if you haven't been there in a while, pop on over to to see the new look. Overall, I think it's cleaner and less cluttered. I moved the badges over to their own page, Swag - Awards and Badges. I'm always interested in feedback, so drop a comment if you love it, hate it, or just have a suggestion.

Tuesday, November 26, 2013

ABA Journal Publishes 2013 Blawg 100

Yesterday, the ABA Journal published its 2013 Blawg 100. The list is obviously defective as it omitted the greatest employment law blog on the planet (as voted by Mrs. Miles - four years running!). Oh well. You can take me off the list for 2013, ABA Journal, but you can never take away my badge for making it in 2012 (if you're on the website right now, it's over there on the right)!

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):

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

Mixed Motive vs. Pretext Jury Instruction - COTW #169

The Third Circuit posted an unpublished opinion recently in Kull v. Kutztown University (opinion here) (let's pause for a moment so my non-attorney readers can digest that an opinion that was just published is "unpublished"). The Court included some nice and concise analysis of "mixed motive" vs. "pretext" jury instructions. I should note that the Plaintiff in this case failed to object at trial, so this analysis falls under a plain error standard:
“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

Lawffice Links - Workplace Vaping (E-Cigarettes)

I have to admit, I have had exactly zero people ask me about this subject. But the Internet assures me it's a hot topic, so I thought some Lawffice Links would be in order:

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

New Requirement: PA Attorneys Must be Tech Savvy

The Pennsylvania Supreme Court recently adopted several changes to the Rules of Professional Conduct. You can view the changes here. One particularly interesting change is the addition of a formal comment to Rule 1.1. Competence:
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.

Why I Don't Bet Money on Sports . . .

. . . I do stupid things like bet against the defending national champion, #1-ranked UConn Huskies versus my beloved Penn State Lady Lions in basketball. I didn't even take the line, just straight up.What does this have to do with employment law? Well, nothing really - except that it means I had to write a guest post in tribute to the awesomeness that is UConn (available here) on Dan Schwartz's Connecticut Employment Law Blog.

UPDATE: As a point of clarification, the guest post was the only thing on the line (no money).

Thursday, November 14, 2013

Third Circuit Decision in Transgender Discrimination Case - COTW #168

On Wednesday, the Third Circuit issued a non-precedential opinion in Stacy v. LSI Corp. The case is noteworthy because the plaintiff's claims were based on transgender/gender identity discrimination (framed as Title VII sex discrimination, sex and disability (gender identity disorder) discrimination and retaliation under the PHRA (PA's state discrimination statute), and gender identity, sex, and disability discrimination and retaliation under Allentown's discrimination act).

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).

Lawffice Links - SCOTUS hears "the most significant labor case in a generation.”

Yesterday, the Supreme Court heard oral arguments in Unite Here Local 355 v. Mulhall.Harvard prof. Ben Sachs describes it as potentially "the most significant labor case in a generation." The question presented is:
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:

Now we just sit back and wait for the Supreme Court to drop an opinion on us.

Monday, November 11, 2013

7th Circuit Weighs in on Contraceptive Mandate

Well, the Circuit split widens in the Affordable Care Act ("Obamacare") contraception mandate litigation. On Friday, the Seventh Circuit issued its opinion in Korte v. Sebelius. It's a lengthy opinion, but the Court provides a nice summary of the issue and the holding:
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.

Friday, November 8, 2013

3d Cir. on FLSA Collective Action Appellate Procedure - COTW #167

I know, I know - FLSA collective action appellate procedure is probably not the most exciting topic in the world. But when the Third Circuit issues a precedential opinion on the topic, I feel an obligation to give it some time here at Lawffice Space.

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

Fired for What!? - Even NFL Locker Rooms Have Limits

Have your co-workers ever expressed a desire to smack around your mother and then defecate in your mouth? Ummmm yeeeaaahhhh, I'm gonna go ahead and guess that's a 'no'. It turns out even NFL locker rooms have limits, in what is currently a Suspended for What!? reportedly on its way to a bona fide Fired for What!?

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.

Some Thoughts on ENDA

Suddenly, the Employee Non-Discrimination Act (ENDA - text here) is a hot topic again. ENDA would prohibit employment discrimination based on sexual orientation and gender identity. President Obama endorsed the legislation via HuffPo op-ed, and the Senate voted to move forward with debate - a full vote is expected later this week.

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 (work of federal government).

Monday, November 4, 2013

Remember Ladies, No Giggling and Speak Like Lauren Bacall... Whoever that is....

The Internet has spilled a lot of pixels over this memo from a "BigLaw" firm directed at its female attorneys. I thought I'd pass it along. The memo includes gems such as, "Don't Giggle", "Your Friends will still like you afterwards, even if you adopt a more formal tone", and of course, "No one heard Hillary the day she showed cleavage." I'm assuming that last one is a reference to Ms. Clinton.

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

$666 Raise Spawns Devilish Claim - COTW #166

Just in time for Halloween, the latest Case of the Week prominently features Satan and the mark of the beast - 666. The Cleveland State University Chapter of the American Association of University Professors filed this unfair labor practice charge.

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.