Tuesday, December 31, 2013

Miles on Duck Dynasty

Between Christmas, New Year's, and an extended daycare closure, blogging has been a little light lately. Fear not, I'll be back to "normal" (whatever that means) in 2014. I don't want you to think I've been totally slacking though. I did manage to crank out an article for the Reading Eagle: Phil Robertson's Comments on Gays Create Legal Tangle. Enjoy! And, see you next year!

Endnote: If you're interested in the citations for the cases referenced in the article:

Gadling-Cole v. W. Chester Univ., 868 F. Supp. 2d 390, 392 (E.D. Pa. 2012)(denying motion to dismiss); and 2013 WL 4602848 (E.D. Pa. Aug. 29, 2013)(denying motion for summary judgment as to religious discrimination claim).

Mendenhall v. Hanesbrands, Inc., 856 F. Supp. 2d 717, 720 (M.D.N.C. 2012).

Monday, December 23, 2013

Annual Update: Christmas Holiday and the Constitution

Every year at about this time, I like to revisit the issue of whether a Christmas federal holiday violates the Constitution. The leading case on this issue is Ganulin v. U.S., 71 F.Supp. 2d (S.D. Ohio 1999), holding that a Christmas federal holiday did not violate the Establishment Clause. I just checked . . . and it remains good law for another year (although a trial court ruling in Ohio is not binding in other jurisdictions).

To see my take on this case and participate in a lively discussion, check out my earlier post: Is a Christmas Federal Holiday Constitutional? See also, my even earlier post: Christmas and the Constitution.This will most likely be my final post before Christmas - so Merry Christmas to all my readers and/or happy whatever-holiday-you-celebrate.

Monday, December 16, 2013

SCOTUS on ERISA Plan Limitations Provisions

The Supreme Court just unleashed its unanimous opinion in Heimeshoff v. Hartford Life and Accident Ins. Co. Justice Thomas did a nice job of succinctly stating the gist of the case in plain English:
A participant in an employee benefit plan covered by the Employee Retirement Income Security Act of 1974(ERISA), 88 Stat. 829, as amended, 29 U. S. C. §1001 et seq., may bring a civil action under §502(a)(1)(B) to re- cover benefits due under the terms of the plan. 29 U. S. C. §1132(a)(1)(B). Courts have generally required participants to exhaust the plan’s administrative remedies before filing suit to recover benefits. ERISA does not, however, specify a statute of limitations for filing suit under §502(a)(1)(B). Filling that gap, the plan at issue here requires participants to bring suit within three years after“proof of loss” is due. Because proof of loss is due before a plan’s administrative process can be completed, the administrative exhaustion requirement will, in practice, shorten the contractual limitations period. The question presented is whether the contractual limitations provision is enforceable. We hold that it is.
Is there anything to prevent a dastardly plan-provider from adopting a limitations provision that effectively cuts off all claims? Well yes, there is. The limitations provision must be "reasonable."

What does "reasonable" mean? We're not exactly sure. But in this case, Justice Thomas noted that the provision would give the employee on-average two years from the conclusion of the administrative review process to file suit. In this case, the employee actually had only one-year from the conclusion of the process. The Court concluded that the one year was still reasonable.

So, what would be unreasonable? We don't know for sure. Justice Thomas notes prior precedent, Occidental Life Ins. Co. of Cal. v. EEOC, 432 U. S. 355 (1977), in which the Court held that 12-month state statutes of limitations for filing Title VII claims were unreasonable given an EEOC backlog of 18-24 months. So, we can probably assume that a limitations provision in a benefits plan that expired before the required administrative review was even completed would be unreasonable. Numerous courts have addressed the reasonableness of contractual alterations of statutes of limitations in other contexts, so there's some guidance out there.

What if a plan includes a "reasonable" limitations period but a dastardly administrator stalls to run out the clock? Justice Thomas notes that traditional doctrines apply and that courts may apply equitable tolling in such circumstances.

For plaintiffs' attorneys this means getting a copy of the plan and checking for limitations provisions immediately. I suspect plan administrators will check their existing plans for limitations provisions and adding them or altering them based on today's decision (and including them in future plans).

Image: The image is Justice Thomas' official portrait and is in the public domain as a work of the federal government.

OK Employers, You Sorted Out Same-Sex Marriage - But Are You Ready for Polygamy?

Just when employers thought they had sorted out the minefield of same-sex marriage legal issues created by U.S. v. Windsor (striking down parts of DOMA as unconstitutional) . . . . a federal court just recognized a constitutional right to polygamy! Are you ready?

Well, that's not exactly what happened. A federal court in Utah held part of Utah's anti-bigamy statute was unconstitutional in Brown v. Buhman (as in Kody Brown for all you Sister Wives fans out there). However, it's important to understand which part was at issue. The statute provided that:
A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
Utah Code Ann. § 76-7-101(1) (2013).

Here, the Court lopped off that last bit ("or cohabits with another person") as a violation of the Browns' First Amendment Rights under the Free Exercise Clause, without a rational basis under the Fourteenth Amendment's Due Process clause. So, don't expect polygamous marriage licenses any time soon. The case presents an interesting development in the law, but I wouldn't go rewriting employee handbooks to address polygamy based on this decision.

Tuesday, December 10, 2013

NJ Ban on Employers Requiring Facebook Passwords Takes Effect

Last week, a new law went into effect in New Jersey - see, NJ Employers Can't Demand Your Facebook Password Under New Law. The law prohibits employers from requiring employees and/or applicants to provide passwords to secured online accounts (like Facebook and other social media). Per the article, "Employers who violate the password law are subject to a $1,000 fine for the first violation and $2,500 for subsequent violations."

I continue to think requiring passwords is a bad practice whether your state has this kind of law or not, and it might violate the Stored Communications Act.

HT: Jennifer White via email.

SCOTUS DIGs "most significant labor case in a generation"

This just in, the Supreme Court issued this order dismissing Unite Here Local 355 v. Mulhall (SCOTUSBlog page) as improvidently granted (i.e. DIG'd). This case was dubbed, "the most significant labor case in a generation." The Court was supposed to decide:
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?
For those of you keeping track at home, this is the second labor and employment law case that SCOTUS has DIG'd this term. Earlier they dismissed Madigan v. Levin, a public employee age discrimination case. Knock it off SCOTUS (or, if you must, DIG some of those patent or criminal procedure cases I don't follow instead)!

The dismissal in Unite Here was a one-line per curiam. That said, Justice Breyer (joined by Justices Sotomayor and Kagan) penned a three-page dissent.

SCOTUS on Forum Selection Clauses

Last week, the Supreme Court issued its opinion in Atlantic Marine Cons. Co. v. U.S. Dist. Ct. W.D. Tex. (opinion here). From the unanimous opinion:
[A] forum selection clause may be enforced by a motion to transfer under §1404(a) . . . . When a defendant files such a motion, we conclude, a district court should transfer the case unless extraordinary circumstances unrelated to the convenience of the parties clearly disfavor a transfer.
This is something of a win for forum selection clauses.

The Delaware Employment Law Blog has more: SCOTUS Ruling on Forum-Selection Clauses Good News for Employers.

Monday, December 9, 2013

SCOTUS Grants Sen. McConnell Argument Time in Noel Canning

Moments ago, the Supreme Court issued an order granting Senate Republican Leader Mitch McConnell 15 minutes of argument time in Noel Canning (aka the NLRB Recess Appointments case):
The motion of Senate Republican Leader Mitch McConnell, et al. for leave to participate in oral argument as amici curiae and for divided argument is granted, and the time is to be divided as follows: 45 minutes for petitioner, 30 minutes for respondent Noel Canning, and 15 minutes for amici curiae Senate Republican Leader Mitch McConnell, et al. The motion of Professor Victor Williams for leave to participate in oral argument as amicus curiae and for divided argument is denied.
McConnell filed this brief on behalf of 45 U.S. Senators. McConnell argues that the Senate was in session while it held pro forma sessions, and the President cannot unilaterally declare a recess so as to make recess appointments.

The Court denied Prof. Williams' request. I briefly blogged about Prof. Williams' position here. He wants SCOTUS to stay out of it by holding that the issue is a political question left to the democratically elected branches of our government (while also supporting the appointments generally).

Friday, December 6, 2013

Fired for What!? - WeedBurger and Tom Brady Pics

Welcome to the Lawffice Space Fired for What!? weekend special - buy none, get two free:

  • Tom Brady pics - Two security guards at Reliant Stadium in Houston were fired for posing for innocuous pictures with Tom Brady. Best comment from the story: "So instead of firing Kubiak & Schaub they fire 2 security employees. [Now] I see why we (Houston Texans) are 2-10." - Deon Thornton. Ouch.
  • WeedBurger - A Wendy's employee was fired for misplacing her marijuana joint . . . in a customer's cheeseburger. (HT: Eric Meyer via Twitter - Bonus points for hashtagging it #FastFoodJoint).
So, my PSA for the day is "Don't do drugs at work." Another invaluable lesson from Lawffice Space.

Thursday, December 5, 2013

Update on Protected White Males (I Got the Doc!)

Ask and ye shall receive. In my last post, explaining that white males are a protected class, I asked readers for docs pertaining to the case in which the Archie's Comics CEO claimed white males are not a protected class. Well, reader Mark E. Moore came up huge!

He emailed me the Defendant's brief, which I have uploaded to Google Docs (here). Upon review, here are some additional thoughts:

  • It's a motion to dismiss relying on several arguments. Defendant is hardly hanging her hat on the defense that white males are not a protected class. That said, the brief clearly states in no uncertain terms, "White males are not a member of a protected class under this section of the HRL (New York's Human Rights Law)."
  • In my post, I explained that white males are protected under federal law with the caveat that it might be different under state law. Here, the NY statute uses the same "because of . . . race/sex" language used in Title VII. Presumably, it protects whites and males as well (although I have not researched the issue under NY law at all).
  • The brief fails to cite the specific section of the HRL to which it is referring, and similarly fails to cite anything supporting the assertion that white males aren't protected. I am not persuaded.
In any event, I thought you might be interested in reading the actual arguments in the docs. Thanks again Mark!

Tuesday, December 3, 2013

Yes, White Males Are a Protected Class

I feel like this story is too stupid to be true . . . yet here we are. I first heard about it via Jon Hyman, although it is now blowing up into the mainstream media (see CNN front page news item here). The CEO of Archie Comics is accused of calling male employees "penis" in a recent lawsuit - and her defense? According to the reports, her lawyer (really?) is proffering as her defense that white males are not a protected class under employment discrimination statutes.

Let me assure you that this is wrong - at least as it pertains to federal employment discrimination laws.
It is well settled that Title VII's prohibition of race-based discrimination protects white employees as well as minority employees. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 278–79, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976) (stating that Title VII is “not limited to discrimination against members of any particular race”).
Burlington v. News Corp., 759 F. Supp. 2d 580, 596 (E.D. Pa. 2010). The plaintiff in Burlington? A white guy claiming he was fired for using the n-word while black employees used it without discipline. The Court allowed his claim to proceed past summary judgment to a jury (although I'm not sure what ever happened to this case - chime in with a comment if you know). So yes, whites are covered.

And what about men? Yup. Covered. In fact, EEOC charge statistics show that as of 2011, over 16% of sexual harassment charges were filed by men.
Title VII's prohibition of discrimination “because of ... sex” protects men as well as women.
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78, 118 S. Ct. 998, 1001, 140 L. Ed. 2d 201 (1998). And, in case you're wondering, Oncale also explains that employees may face race and/or sex discrimination from members of the same race and/or sex.

I'd like to see a copy of the actual court filing to see if there's some unreported nuance in this Archie case (like the lawsuit was brought under some state law that actually doesn't protect white males). If you have a link, drop a comment.

Law Profs Weigh in on Noel Canning

Next month, the Supreme Court will hear arguments in NLRB v. Noel Canning, aka the challenge to President Obama's "recess appointments" to the NLRB. SCOTUSblog has a full rundown of briefs filed in this case. I haven't had time to read them all, but several interesting amicus briefs have been filed by law professors.

The case revolves around the Constitution's Recess Appointments clause:
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Brief of Constitutional Law Scholars
Filed on behalf of thirteen law professors, this brief makes three primary arguments:

1. "The original meaning of the text . . . empowered the President to fill vacancies only if they arise while the Senate is in recess."
2. "'[R]ecess' is the formal recess that occurs between formal 'sessions' of the Senate, not including adjournments while a session is in progress."
3. Alternatively, the Senate's pro forma sessions were legitimate and precluded so-called intrasession recess appointments.

In other words, intrasession recess appointments are unconstitutional (in fact, there's no such thing as an intrasession "recess"). Even if they were allowed, the Senate's pro forma sessions would preclude them in this instance.

Brief of Originalist Scholars
The originalist profs similarly concluded that:
(1) the vacancy must arise (“happen”) when the Senate is in recess; and 
(2) “the Recess” refers only to the break between legislative sessions.
However, they did not address the Senate's pro forma sessions.

Brief of Professor Victor Williams
Professor Williams backs the President's appointments, but his brief urges an alternate resolution to the case: "[T]he President's discretionary exercise of of his recess appointment powers is a nonjusticiable political question."

One of the interesting aspects of this case is that it has so many potential outcomes. The Court could conclude that intrasession recess appointments are unconstitutional, or that recess appointments during the Senate's pro forma session are unconstitutional, or that the appointments were a proper exercise of the President's power. Or, the Court could duck the issue altogether by deeming it a "political question." We'll have to wait and see. 

Monday, December 2, 2013

Lawffice Links - Pending Obamacare Challenges

Oh c'mon, you didn't think NFIB v. Sebelius (opinion here) would be the end of the Obamacare legal challenges did you? Here, digest some Lawffice Links to keep you up to speed:

Phew! That should keep you busy for awhile. 

Sunday, December 1, 2013

Cyber Monday is Here - 54% of Workers to Shop Online at Work this Season

It's Cyber Monday! Do you know what that means? No, not great Internet sales - well, I mean that too - but this is an employment law blog after all. So, it means a blog entry about Internet shopping at work.

An AllVoices article discusses some interesting stats from a recent CareerBuilder survey, including the titular warning: Some Employers Fire Workers for Shopping Online. The interesting stats:

  • 54% of employees expect to spend at least some time at work online holiday shopping;
  • 10% say they will spend at least three hours shopping at work; and
  • 7% of employers have fired someone for shopping online at work.
The article is aimed at employees, and provides three rules summarily described as:
  1. Learn the Rules
  2. Don't Get Carried Away; and
  3. Show Some Restraint.
I think this provides a nice framework for me to lay down some rules of thumb for employers:

1. Explain the Rules - If you don't already have one, adopt a policy regarding Internet usage and include it in your employee handbook (which you've no doubt made readily available to employees, right?). Also, explain employees' expectation of privacy (or more likely, lack thereof) on work computers and networks. If online shopping has been problematic, you may even go so far as to send an email out reminding employees of the applicable policies.

2. Don't Let Employees Get Carried Away - It's one thing for an employee to pop over to Amazon on a lunch break, or even a "coffee break" - but it is quite another to spend over three hours shopping (reminder: stat above claims 10% of employees will). If it becomes a problem, do something about it.

3. Show Some Restraint - Nobody wants to be the employer who fired an employee for buying little Johnny a rocking horse for Christmas at work. This is probably an area where a warning is appropriate if online shopping becomes a problem. Unless you want to be viewed as a modern-day Scrooge, wait until you've explained the rule (see 1), identified employee(s) getting carried away (see 2), and warned them of the problem (see 3) to pull the trigger on a termination.