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Monday, March 31, 2014

Lawffice Links - Hobby Lobby SCOTUS Oral Arguments

Last week, the Supreme Court heard oral arguments in Sebelius v. Hobby Lobby (aka the Obamacare Contraceptive Mandate Case). I baked some Lawffice Links for the occasion:

I suspect this will be one of the last SCOTUS opinions of the year, sometime in late June.

Instant Classic: The Motorboating Case

It's the age-old question: What's the sexual harassment price tag on a female boss motorboating her male employee? Wait, what!? Ummm, yes. That was essentially the question posed to a Galveston, Texas jury. The answer? $567,000.

If you're like, "what's motorboating?" - here are no fewer than 100 examples from a guy who doesn't appear to mind.

The plaintiff was a deputy constable who accused his female boss of "repeatedly making suggestive comments, of pressing his head between her breasts and of making other sexual advances." I should note that she denies it . . . sort of:
[She] denied pulling her blouse over [Plaintiff's] head, but said she did it to other deputies. "If anybody was in a bad mood, like if Phil was in a bad mood, I would say, 'Phil,' or to anyone, 'Do you need to go under the shirt?" she testified in a deposition.
Yes, she really said "Phil." No, I don't think she was referring to me.

So that's your HR practice tip of the day: DO NOT MOTORBOAT YOUR EMPLOYEES. This case also illustrates that, yes, female-on-male sexual harassment can lead to big lawsuits.

HT: At this point, pretty much every employment and HR blogger ever.

Thursday, March 27, 2014

Oh, and Michigan

Ya thought you could sneak one past me, huh? Nope, I'm on it. Yes, yet another federal district court has struck down yet another state same-sex marriage prohibition. This time, it's Michigan's. However, the decision is on hold pending appeal to the Sixth Circuit.

For Pennsylvania employers (and employers in other states that don't recognize same-sex marriages): why some other state's marriage laws matter to you.

Northwestern Football Players Win Round 1 in Union Battle

By now, you've probably already heard the big news. That's always a dilemma for niche bloggers like me. On the one hand, I'd be a pretty awful employment law blogger if I didn't tell you an NLRB regional director held that Northwestern's football players are employees who can vote on unionizing. On the other hand, it's such a big story that you've probably already seen it all over the news (and I just don't have time to keep up with the full time journalists).

Anyway, here's the opinion in Northwestern University and College Athletes Players Association. The decision notably holds that Brown University is inapplicable, but goes on to analyze the factors under Brown anyway (reaching the same conclusion - football players are employees). In Brown, the NLRB held that graduate student assistants were not employees.

I know everybody is excited/infuriated/elated about this decision, but a quick reality check: this will be appealed. The NLRB will review it and it will probably end up in the federal courts. I would be surprised if Northwestern football ever unionizes as a result of this petition. That said, agencies and courts have surprised me before.

One other quick note, many college football teams play for public colleges and universities. Those schools generally fall under a state public employee relations act (PERA). So, this decision will not directly affect them (it may provide some "persuasive" authority to the state labor relations boards though).

Image: NLRB seal used in commentary on NLRB. Not official use.

Tuesday, March 25, 2014

SCOTUS: Severance Payments are Taxable Wages Under FICA

This just in! Minutes ago, the Supreme Court issued its opinion in U.S. v. Quality Stores, Inc. If you want to plow through 15-pages of FICA analysis, be my guest. If you want the cut-and-paste of the bottom line:
This case presents the question whether severance payments made to employees terminated against their will are taxable wages under the Federal Insurance Contributions Act (FICA), 26 U. S. C. §3101 et seq . . . . The severance payments here were made to employees terminated against their will, were varied based on jobseniority and time served, and were not linked to the receipt of state unemployment benefits. Under FICA’s broad definition, these severance payments constitute taxable wages.
Justice Kennedy for a unanimous Court, minus Justice Kagan who did not participate.



Litigation Twitter Accounts? Hobby Lobby Says "Yes"

Yesterday, I came across the Twitter account for @HobbyLobbyCase (as I type this, Google Blogger politely nudges me that it is also a Google Plus account +Hobby Lobby Case ). I guess I shouldn't be surprised, but I find this fascinating.

As my readers may recall from past entries, the Supreme Court will hear a challenge to the Obamacare contraception mandate from Hobby Lobby, a closely held corporation. The case will test the religious freedoms of such corporations against the mandates of the ACA. Oral arguments are today.

The case's Twitter account appears to be managed by Hobby Lobby itself. What kinds of things do they post? Well, this infographic is a good example:

Embedded image permalink
I'm guessing we'll see a lot of websites, twitter accounts, and facebook pages for some big cases that generate a lot of public interest. Is it right for all cases? Probably not. It's an interesting concept though.

I've been following Hobby Lobby (and the various contraceptive mandate cases) for awhile now. So, I'll keep you posted as this thing unfolds.

Do you have any other examples of a party using social media in connection with strategic litigation? Drop a comment!

Friday, March 21, 2014

Can I Just Quit and Claim Constructive Discharge?

If you want to sue your employer for losing your job, it generally helps if you were fired instead of quitting. However, under some circumstances, employees can claim they were "constructively discharged."

A recent Middle District of Pennsylvania case reiterated the "Clowes factors" that federal courts in the Third Circuit (including Pennsylvania) use to determine whether an employer constructively discharged an employee:
(1) threat of discharge; 
(2) suggesting or encouraging resignation; 
(3) a demotion or reduction of pay or benefits; 
(4) involuntary transfer to a less desirable position; 
(5) alteration of job responsibilities; and 
(6) unsatisfactory job evaluations.
Woods v. Salisbury Behavioral Health, Inc., 3:CV-13-539, 2014 WL 957342 (M.D. Pa. Mar. 12, 2014); quoting Clowes v. Allegheny Valley Hosp., 991 F.2d 1159 (3d. Cir. 1993).

I should note that the Clowes factors are not necessarily determinative. Courts engage in a broader inquiry: "an objective test to determine whether an employee can recover on a claim of constructive discharge ... [specifically,] whether a reasonable jury could find that the employer permitted conditions so unpleasant or difficult that a reasonable person would have felt compelled to resign." Woods; quoting Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir.2001).



Wednesday, March 19, 2014

The March Employment Law Blog Carnival is Live!

This month's Employment Law Blog Carnival is up. So head on over to HR Examiner and check out ELBC Walks Into a Bar. It features the comedic stylings of Heather Bussing, and of course, some of the best employment law blog entries from around the web.

3d Cir. on Severability of Indefinite CBA Termination Clause

The Third Circuit recently issued an interesting non-precedential opinion in the world of collective bargaining: Int'l Union of Op. Engineers, Local Union No. 542 v. Allied Erecting and Dismantling Co. (opinion here).

The setup is pretty simple. Management and the union entered into a CBA with a severability clause and the following termination clause:
[T]his Agreement shall terminate upon [Allied’s] completion of the [Fairless Hills PA dismantling] Project. As to any jobsite to which this Agreement is extended on a jobsite-by-jobsite basis[,] . . . the Agreement and [Allied’s] recognition of the Union for employees employed at such jobsite shall terminate upon the completion of [Allied’s] work at such jobsites.
Can you spot the issue? I've gotta say - this is a tough one (it would make a good bonus question for a labor law prof).

The Third Circuit held that the termination clause afforded the employer the power to extend the CBA to new jobsites at its discretion. Therefore, the agreement was for an indefinite term - a no-no under the NLRA. In the words of the Court, "The agreements are indefinite because one party unilaterally controls the termination event."

So, what did the Court do about it? The Court relied on the agreements severability clause to carve out the language that made the agreement indefinite - i.e. the language extending the agreement on a "jobsite-by-jobsite" basis. The end result being that the agreement would terminate upon completion of the Fairless Hills project.

This is some new ground in the Third Circuit, and they relied heavily on decisions from other circuits.

HT: I get these great emails about once a month from the FBA Labor and Employment Law Section with interesting cases from the Circuit Courts of Appeals. That's where I saw this case.

Monday, March 17, 2014

FiveThirtyEight is Here!

Well-kept Lawffice Space secret: my undergraduate major (Management Science and Information Systems, in the Penn State Smeal College of Business) focused heavily on statistical analysis. So, I was pretty excited to hear about Nate Silver's new "data driven" journalism project (he's the guy whose statistical models nailed all 50 states and DC this past presidential election).

His new ESPN-affiliated site launched today: FiveThirtyEight.com. I can already tell I'll love it. For an employment law tie-in, may I point you to: Three Rules to Make Sure Economic Data Aren't Bunk:
For example, for all the talk of constant turnover and the end of the “lifetime job,” Labor Department data show that Americans are actually spending longer with their employers than at any point in the past 30 years. The median “tenure” of a worker — how long the typical worker has been with the same employer — rose by 14 percent between 1983 and 2006, to four years from 3.5. When the recession hit, the trend accelerated, with median tenure hitting 4.4 years in 2010 and 4.6 years in 2012. As counterintuitive narratives go, it would be hard to beat, “Job security continues to rise.”
But let's get real, what you really want are their March Madness predictions, am I right? OK, here you go: FiveThirtyEight's NCAA Tournament Predictions. If you like numbers and data analysis (and who doesn't?), then check it out.

Friday, March 14, 2014

Obama Proposes New Overtime Regs

Yesterday, President Obama called on the Department of Labor to update the FLSA regulations regarding overtime. In a White House Fact Sheet, he identified the following reforms:

  • Update existing protections in keeping with the intention of the Fair Labor Standards Act.

  • Address the changing nature of the American workplace.

  • Simplify the overtime rules to make them easier for both workers and businesses to understand and apply.
That's a little vague - what does it mean? One thing Pres. Obama specifically referenced was the minimum threshold salary for certain overtime exemptions. It is currently $455 per week, set in 2004, which he noted would be $561 in today's dollars. I think it's a safe bet that number will increase under the new regs.

You can also read the President's actual memo to Secretary of Labor Thomas Perez. There are not a lot of clues there either. Both documents focus on the "white collar" exemptions (administrative, executive, and learned professional). No doubt, the regulations will further limit those exemptions in some way.

As the President noted, exempt employees may actually earn less than minimum wage. For a salaried employee making the minimum $455 per week, the tipping point is 63 hours (62 hours is $7.34/hour, and 63 hours is $7.22/hour).

Now we must wait and see what the DOL proposes.

Happy Pi Day!

Tuesday, March 11, 2014

Those Bieber Depo Clips . . .

What kind of law blogger would I be if I didn't pass along these priceless video clips of Justin Bieber's deposition?

I don't know what kind of depo prep he went through, but I generally include a portion I call "don't be an *sshole" (except I frame it professionally and courteously of course). The gist of it should be pretty obvious: the deposition "counts" as testimony and anything you say may find its way in front of a judge and a jury so don't come off as a jerk.

In Justin Bieber's case: Mission NOT-Accomplished.

Here's one clip (embedded - email subscribers should just click the link above to view online).



Closest thing I could find to an employment law tie-in:

ATTORNEY: Have you ever disciplined [name]?
BIEBS: Disciplined? What kind of question is that? Is he my son?

No Biebs, sometimes you have a duty to supervise your agents, employees, etc.

EEOC and FTC Tips on Background Checks

Yesterday, the EEOC issued a press release: EEOC and FTC Offer Joint Tips on Use of Employment Background Checks. The agencies were kind enough to break it into employer and employee sections:

Hmmm, I wonder why the employers need to know but the employees only should know? In any event, check out the info.

Friday, March 7, 2014

EEOC Issues Publications on Religious Garb and Grooming

Yesterday, the EEOC issued some guidance on handling religious garb and grooming in the workplace under Title VII:
They're helpful resources for employers and employees. 

The EEOC clearly addresses some common issues. For example:
5. Can an employer exclude someone from a position because of discriminatory customer preference? 
No. If an employer takes an action based on the discriminatory religious preferences of others, including customers, clients, or co-workers, the employer is unlawfully discriminating in employment based on religion. Customer preference is not a defense to a claim of discrimination.
So, check out the links.

Thursday, March 6, 2014

Miles in Bloomberg BNA on EEOC Enforcement

Breaking news, straight from the shameless self-promotion department! Lydell Bridgeford recently interviewed me for a piece in Bloomberg BNA. Check it out: Q&A: All Eyes on EEOC’s Lawsuit Challenging Severance Agreement.

Friendly Reminder: "Anonymous" Internet Comments . . . Not So Anonymous

The Legal Intelligencer reports:
A Philadelphia judge has ordered the owners of Philly.com to disclose the identity of an anonymous poster who allegedly called city International Brotherhood of Electrical Workers, Local 98, leader John Dougherty a "pedophile" in the comments section of an online article.
It's another helpful reminder that anonymous comments on the Internet are not so anonymous. And, you certainly don't have free reign to hurl allegations (especially allegations like that) just because it's the wild wild web.

That said, I'm not sure how much Mr. Dougherty's damages will be. I doubt many people rely on Internet comments from user "fbpdplt." We'll see if anything comes of this case.

Wednesday, March 5, 2014

SCOTUS Adopts Broad Interpretation of SOx Whistleblower Retaliation Provision

Basic Holding

Yesterday. the Supreme Court issued its opinion in Lawson v. FMR LLC (opinion here). The Court interpreted Sarbanes Oxley's whistleblower retaliation provision:
No [public] company . . . , or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of [whistleblowing or other protected activity].
18 U.S.C. § 1514A(a) (2006 ed.). Protected activity under SOx includes reporting fraud against shareholders of publicly traded companies. The opinion describes the issue presented as:
This case concerns the definition of the protected class: Does §1514A shield only those employed by the public company itself, or does it shield as well employees of privately held contractors and subcontractors—for example, investment advisers, law firms, accounting enterprises— who perform work for the public company?
Of course, my ears perked up at "law firms." So, what's the bottom line? The Court concluded that the "whistleblower protection extends to employees of contractors and subcontractors."

The Lineup

We got an interesting lineup in the majority opinion. Justice Ginsberg wrote for Justices Roberts, Breyer, Kagan, Scalia, and Thomas. However,. Justices Scalia and Thomas broke off in a concurring opinion by Scalia.

The gist of that opinion was that Ginsberg was spot on with her interpretation of the text of the statute and its context - but, her reliance on congressional intent was misplaced. Anyone who has followed Justice Scalia's career is familiar with this rant (does he just cut and paste these from one case to the next?). In any event, he and Thomas believe that we should look to the original meaning of the text of the law, and that congressional intent is "fiction."

The Dissent

Justice Sotomayor wrote a dissent, joined by Justices Kennedy and Alito (another odd matchup). She opens with a colorful description of how the Court's majority opinion may be applied:
The Court’s interpretation gives §1514A a stunning reach. As interpreted today, the Sarbanes-Oxley Act authorizes a babysitter to bring a federal case against his employer—a parent who happens to work at the local Walmart (a public company)—if the parent stops employing the babysitter after he expresses concern that the parent’s teenage son may have participated in an Internet purchase fraud. And it opens the door to a cause of action against a small business that contracts to clean the local Starbucks (a public company) if an employee is demoted after reporting that another nonpublic company client has mailed the cleaning company a fraudulent invoice.
She concludes by noting that Congress has the power to restrict the reach of SOx to preclude the broad reach of the Court's majority interpretation.

Monday, March 3, 2014

SCOTUS Grants Cert: Security Screening Compensable Time Under FLSA?

This just in: SCOTUS granted certiorari (order here) in Integrity Staffing Solutions, Inc. v. Busk (SCOTUSblog page here).

From the Petition for Writ of Certiorari:
The question presented is whether time spent in security screenings is compensable under the FLSA, as amended by the Portal-to-Portal Act.
That sounds like a nice, concise issue. The appeal comes from the Ninth Circuit, which concluded that time spent in security screening was compensable. The Petition explains that this creates a split with the Second and Eleventh Circuits.

Daughter's Facebook Post Costs Dad his Settlement

USA Today reports Teen's Facebook Post Costs Dad $80K. The father settled his age discrimination suit against Gulliver Prep School for $80,000. The settlement agreement included a confidentiality provision.

And then, the daughter posted this on Facebook: "Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT."

The school claimed the father breached the agreement and refused to pay up. Last week, an appellate court agreed with the school.

The daughter better get a job, because I have a feeling she's going to be paying for her own trip to Europe.

HT: Coincidentally, my own father emailed me this story. You can also read more about this case over at Eric Meyer's The Employer Handbook.