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Monday, June 30, 2014

Breaking: SCOTUS Affords Religious Exemption to Obamacare Contraceptive Mandate for Certain Employers

Well, it has been a big day at SCOTUS. Now, we have the opinions in Hobby Lobby and Conestoga Wood. The introductory paragraph from Justice Alito's majority opinion:
We must decide in these cases whether the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U. S. C. §2000bb et seq., permits the United States Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners. We hold that the regulations that impose this obligation violate RFRA, which prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest.
I'll need some time to digest the full opinion - but that's the gist of it.

Breaking: SCOTUS on Mandatory Union Fees in Harris v. Quinn

The Supreme Court just issued its opinion in Harris v. Quinn. The general holding is:
The First Amendment prohibits the collection of an agency fee from Rehabilitation Program PAs who do not want to join or support the union.
However, the Court has declined to reverse Abood (generally allowing mandatory fees to public employee unions). I'll need some time to fully analyze, but this looks like a narrow or limited holding. The Court notes that the employees in this case are "quite different from full-fledged public employees."

So, the Court will not reverse Abood, but will also not extend it to the employees in this case. It looks like the opinion includes some criticism of Abood too - its days may be numbered but it survives for now.

We have a 5-4 (conservative bloc plus Kennedy) split in this one.

Breaking: SCOTUS Grants Cert. in EEOC Duty to Conciliate Discrimination Claims

This just in: The Supreme Court issued an order granting certiorari in Mach Mining v. EEOC. Per SCOTUSblog, the issue presented is:
Whether and to what extent a court may enforce the Equal Employment Opportunity Commission's mandatory duty to conciliate discrimination claims before filing suit.
The Supreme Court is finishing up its 2013-14 season. So, they'll tackle this one next year.

Also, the Court did not act on Young v. UPS, the pregnancy workplace accommodation case. We'll have to wait and see whether they grant cert in that one.

Sunday, June 29, 2014

SCOTUS Season Finale Online Viewing Guide

Monday, June 30, 2014

9:15 - Coverage Begins

Let me be clear, there is only one place to go for good Supreme Court live coverage: SCOTUSblog liveblog. They'll start at 9:15 am, but the action doesn't really start until 9:30. That's when SCOTUS is expected to issue an order from its last conference, including cert. grants and denials (in other words, they announce some cases they will hear, and some they won't - along with a few other types of orders).

9:30 - Undercard

Keep the SCOTUSblog liveblog going, but open another tab to the Supreme Court's order list. When you see one for 6/30/2014 (you may need to refresh the screen periodically), open it and see what got granted. If you want to know what the different cases are about, SCOTUSblog has you covered there too - with petition's they're watching. If a case is not on their page, Google is your friend (or you can find the lower court's opinion in a legal research database like WestlawNext).

For employment law nerds, the case to watch for is Young v. UPS:
Whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”
The Court requested input from the SG and relisted the case after already going to conference once - both good signs that the Court is seriously considering granting cert.

10:00

THE MAIN EVENT!

Starting at about 10:00, you can start furiously hitting update/refresh on the Supreme Court's main page (okay, I'm only kidding - pace yourself, no need to crash the site - refresh periodically). Recent decisions are on the right side of the page.

Stick with the liveblog too though - they usually get the holding out a few seconds to minutes before the opinions appear on the Supreme Court website. Remember, you can not trust the mainstream media with Supreme Court coverage (okay - maybe we should give them a shot at redemption?).

What are we waiting for? I expect two opinions - and, if I had to guess, in this order:

Harris v. Quinn -
(1) Whether a state may, 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; and (2) whether the lower court erred in holding that the claims of providers in the Home Based Support Services Program are not ripe for judicial review.
The excitement (panic? controversy?) over this case is the possibility that the Supreme Court will hold that "fair share" public employee mandatory union dues are unconstitutional (plenty of other, frankly not-so-interesting, potential outcomes are possible though).

Burwell v. Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp. v. Burwell - 
Conestoga: Whether the religious owners of a family business, or their closely held, for-profit corporation, have free exercise rights that are violated by the application of the contraceptive-coverage mandate of the Affordable Care Act. 
Hobby Lobby: Whether the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq., which provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest, allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.
Annnnd, that's a wrap on the latest SCOTUS season. Then you can dig through the final opinions and/or sift through the coverage and reactions all over the Internet. For particularly amusing reactions, watch the Twitter-stream for #SCOTUS.

Enjoy!

Friday, June 27, 2014

Noel Canning (Recess Appointments) - Why Obama's Picks?

While cruising the Internet for reactions to Noel Canning (the case striking down President Obama's NLRB "recess" appointments as unconstitutional), I saw a common question/criticism: Why Obama? They point to stats showing that President Obama has made relatively few recess appointments when compared to past presidents. Well, here are some of my thoughts:

1. It's not the number, it's the timing.
The Supreme Court did not hold that President Obama made *too many* recess appointments. It held that President Obama made the NLRB appointments during a three-day break between "pro forma" sessions of the Senate, which was too short of a window. The Senate said it was in session and President Obama tried to tell them that they were not.

A president unilaterally declaring that the Senate is not in session and making appointments during a three-day break is simply not a common practice. According to a Congressional Research Service report, the shortest intrasession "recess" in which an appointment was made between the start of President Reagan's first term (in January 1981) and December of 2011 was 10 days.

2. The NLRA created really easy judicial review
Some critics point to other controversial recess appointments, like U.S. Ambassador John Bolton. However, it's hard (for me at least) to think of a situation in which someone would have standing and a financial incentive to get judicial review of an ambassador's appointment. You can't just file a lawsuit because you don't like something (even if it is unconstitutional) - you have to suffer actual harm

In this case, the NLRB serves a judicial function. Under the NLRA, the parties can seek judicial review of an NLRB decision in the U.S. Circuit Courts of Appeals. That made challenging the validity of the appointments *really* easy. In this situation, every party who received a decision it didn't like from the NLRB could just file an appeal and raise both their arguments on the merits of the case and the recess appointments issue.

That's pretty much what happened. Inevitably, some circuits parted ways on their interpretations of the Recess Appointments Clause - setting up a perfect case for Supreme Court review.

3. Not partisan hackery
Some people immediately knee-jerked into cries of racism and partisan politics. The holding was unanimous, so I find it unlikely that all nine justices (including Justice Thomas) are racist and trying to block appointments based on President Obama's race. It's also highly unlikely that partisan politics motivated all nine justices to vote the same way. Finally, the controlling opinion was written by Justice Breyer, who was appointed by a democrat, as were three of the four justices who joined his opinion - two of them were appointed by President Obama himself.

Thursday, June 26, 2014

SCOTUS on NLRB Recess Appointments

At long last, the Supreme Court's opinion in NLRB v. Noel Canning is here! It's a long opinion and will take some time to analyze, but here's my first take:

The Court is unanimous in concluding that Obama's NLRB recess appointments were unconstitutional - he lacked the authority under the recess appointments clause to make the appointments.

However, there is a 5-4 split with the liberal bloc plus Kennedy in the majority. The majority gives the president a broad recess appointment power, allowing intrasession appointments during brief breaks. However, even under that broad interpretation, President Obama's appointments during the 3-day break between pro forma sessions of the Senate in this case was not sufficient.

Justice Scalia drops a great insult early in his dissent, calling the majority opinion an "adverse possession theory of executive authority." The dissent basically states that the vacancy must occur during the recess between formal Senate sessions and the appointment must likewise occur during such a recess. The fact that presidents have ignored these requirements for years does not make intrasession recess appointments okay.

I'm looking forward to really digging through this one.

Wednesday, June 25, 2014

Employment Law in SCOTUS's Final Week and Scalia on Loopholes

I haven't been blogging a lot lately, in part because I've been waiting for decisions from the Supreme Court in Hobby Lobby and Conestoga Wood, Noel Canning, and Harris v. Quinn. The Court is just not cooperating though! We should get all four of those decisions tomorrow (or in a yet-to-be scheduled date next week, probably Monday).

Heck, we can't even get a cert decision in the pregnancy accommodation case, Young v. UPS. It already went to conference last week, but no decision yet. It is scheduled to go back to conference on Thursday, with (hopefully) a cert decision soon thereafter (again, I think Monday).

In the meantime, I'm left trying to entertain myself with non-employment law cases. In dissent, Justice Scalia provided some interesting commentary on "loopholes" in ABC v. Aereo:
I share the Court’s evident feeling that what Aereo is doing (or enabling to be done) to the Networks’ copyrighted programming ought not to be allowed. But perhaps we need not distort the Copyright Act to forbid it. As discussed at the outset, Aereo’s secondary liability for performance infringement is yet to be determined, as is its primary and secondary liability for reproduction infringement. If that does not suffice, then (assuming one shares the majority’s estimation of right and wrong) what we
have before us must be considered a “loophole” in the law.It is not the role of this Court to identify and plug loopholes. It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes. Congress can do that, I may add, in a much more targeted, better informed, and less disruptive fashion than the crude “looks-like-cable-TV” solution the Court invents today.
I don't know enough about this specific case to offer commentary - but as a general premise, Scalia's comments seem reasonable enough.

Monday, June 23, 2014

DOL Proposes New Definition of "Spouse" for FMLA

The Department of Labor proposed a new rule, redefining "spouse" under the Family and Medical Leave Act (FMLA). You can read the DOL's notice here. The new definition will specifically affect same-sex marriages:
Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.
First, the new definition changes from a "state of residence" rule to a "place of celebration" rule - in other words, the recognition of same-sex marriages will be based on the laws of the state in which the marriage took place instead of the laws of the state in which the employee resides. The new definition also affords protection to same-sex couples who got legally married outside of the United States.

Friday, June 20, 2014

SCOTUS on Public Employee Free Speech

We're coming down the home stretch of another SCOTUS season. We still have a few labor and employment law cases left (Noel Canning and Harris v. Quinn) - we should have decisions in the next week or two. Yesterday, the Supreme Court issued its opinion in Lane v. Franks.

In public employee free speech cases, the courts generally balance the government's interest in managing its employees with the individual's right to speak freely on matters of public concern without government interference.

The big takeaway from Lane v. Franks is:
Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment.
The employee in this case, the director of a program receiving federal funding, had testified under subpoena in a criminal trial against a state representative who was on the payroll until the director terminated her. The director himself was subsequently terminated. He claims he was fired in retaliation for his testimony.

The Court recognized that the testimony was protected by the First Amendment. However, the analysis must weigh the individual's interest against the government's needs as an employer (the Pickering balancing test). Here the Court held that the government's side of the Pickering scale was "entirely empty."

Frankly, this seems like an easy case to me - and the Court was unanimous in its decision. Justice Thomas (joined by Scalia and Alito) wrote a concurring opinion to explain that this case did not address employees who testify as part of their job duties (like a designated representative or a police officer who testifies regularly as part of his or her job duties).

Sidenote: The employee in this case won, but still lost, as the defendant was granted qualified immunity. The employee also has a remaining claim that was not addressed by this decision.

Wednesday, June 18, 2014

Obama to Sign Executive Order Prohibiting Sexual Orientation Discrimination

With no legislative remedy in sight, President Obama is once again turning to his executive authority to address workplace issues. President Obama is expected to sign an executive order "banning federal contractors from discriminating against gay men, lesbians and others on the basis of sexual orientation."

The executive order is not yet available online, but will be posted here. In my experience, when the press discusses "executive orders," President Obama is actually issuing a combination of executive orders and presidential memoranda, which are available here.

Wednesday, June 11, 2014

Judge Strikes Down California Tenure Laws

I don't practice in California, and I don't know anything about California law - but this decision was so fascinating that I decided to throw it up on the ole' blog anyway. In Vergara v. California (opinion here), a state judge ruled that certain teacher tenure laws were unconstitutional:
Substantial evidence presented makes it clear to this Court that the Challenged Statutes disproportionately affect poor and/or minority students.
The judge left it up to the legislature to fix the problem (although I assume this will be appealed). The case has generated some MSM buzz. Here's one of many articles out there: California Teacher Tenure Ruling May Fuel Debate.

Tuesday, June 10, 2014

"English Only" - Discrimination or Legit Job Requirement?

Are "English only" workplace policies legitimate job requirements or unlawful discrimination? This issue flares up from time to time, and like many areas of the law, the answer is "it depends."

The EEOC has staked out its position in a variety of ways. According to the EEOC's National Origin Discrimination guidance:
An employer can only require an employee to speak fluent English if fluency in English is necessary to perform the job effectively. An “English-only rule”, which requires employees to speak only English on the job, is only allowed if it is needed to ensure the safe or efficient operation of the employer’s business and is put in place for nondiscriminatory reasons.
The EEOC has also stated that an "English only" rule may be justified by "business necessity." In its Compliance Manual - Section 13: Nation Origin Discrimination, the EEOC identified some examples of business necessities:
  • For communications with customers, coworkers, or supervisors who only speak English 
  • In emergencies or other situations in which workers must speak a common language to promote safety 
  • For cooperative work assignments in which the English-only rule is needed to promote efficiency 
  • To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers.
Yesterday, the EEOC announced a new lawsuit captioned EEOC v. Wisconsin Plastics, Inc. (E.D. Wisc. Civil Action No. 1:14-cv-00663), claiming employees were unlawfully terminated based on an English proficiency evaluation. Per the press release:
"Our experience at the EEOC has been that so-called 'English only' rules and requirements of English fluency are often employed to make what is really discrimination appear acceptable," said EEOC Chicago Regional Attorney John C. Hendrickson. "But superficial appearances are not fooling anyone. When speaking English fluently is not, in fact, required for the safe and effective performance of a job, nor for the successful operation of the employer's business, requiring employees to be fluent in English usually constitutes employment discrimination on the basis of national origin -- and thus violates federal law."
The bottom line: An employer can have an "English only" policy, but must have a non-discriminatory reason for it.

Image: EEOC seal - Not official use.

Wednesday, June 4, 2014

Miles on Workers' Compensation Act "Statutory Immunity"

Yes, I realize that my last four blog entries are all links to my own articles and presentations. What can I say? The shameless self-promotion department has been working overtime. In any event, the latest issue of the PBA Civil Litigation Section Update is now available.

And yes, it includes my case summary of Patton v. Worthington Associates, Inc., 32 MAP 2013, 2014 Pa. LEXIS 788 (Pa. Mar. 26, 2014). The gist of the case is that "statutory immunity" provides general contractors with immunity from tort claims from subcontractors - but read the whole summary to get a fuller picture.

This issue also includes case summaries from my McQuaide Blasko colleagues Sebastian Conforto, Chena Glenn-Hart, Jon Stepanian, and Carolyn Smith. Enjoy!

Note: I think the newsletter is temporarily available to the public, but the archives are subscription only - don't quote me on that though.

Miles on Pregnant Workers Fairness Act

Straight from the shameless self-promotion department: my new article on the Pregnant Workers Fairness Act is now available in the Reading Eagle Business Weekly. It may require a subscription or login - but with great content like articles by me, it's gotta be worth it right?

Monday, June 2, 2014

15 New Developments in Employment Law

On Friday, I had the pleasure of presenting 15 New Developments in Employment Law (slides here) to the Healthcare Human Resources Association of Central Pennsylvania. I thought others might be interested in the presentation so I posted the slides. Here are some links that correspond to the slides:

1. PA Same Sex Marriage
- Judge Jones's opinion
- SSM in PA is Here to Stay
- Why PA Employers Should Still Monitor Other States' Laws on the Issue

2. Severance Pay and Taxes
- Supreme Court's opinion in U.S. v. Quality Stores, Inc.

3. Focus on Pregnancy in the Workplace
- Pregnant Workers Fairness Act
- SCOTUSblog case page for the potential pregnancy accommodation case

4. Your Separation Agreements are Illegal! (maybe)
- Lawffice Space blog entry with links to Complaint, and tips from other bloggers (Jon Hyman and Dan Schwartz)

5. President Obama's Executive Orders (and Memos)
- Overview of Equal Pay issue (and links to the order and memo)
- Obama's proposals regarding overtime regs

6. Is Telecommuting a Reasonable Accommodation
- Lawffice Space blog entry on topic

7. A Noncompete Without Consideration?
- Socko v. Mid-Atlantic Systems of CPA, Inc. (Pa. Super. Ct.)
- Lawffice Space blog entry on topic

8. EEOC Charge Data Through FY 2013
- Chart and analysis on Lawffice Space

9. NLRB Quickie Elections
- Helpful update from Jackson Lewis
- I mentioned Noel Canning - that's a Supreme Court case that will be decided any day now addressing the constitutionality of the president's recess appointments to the NLRB. SCOTUSblog case page here.

10. RIP NLRB Poster Requirement
- Lawffice Space entry on point

11. Transgender Discrimination = Sex Discrimination
- Third Circuit's opinion in Stacy v. LSI Corp.
- Brief summary of case
- EEOC's decision in Macy v. Holder

12. Third Circuit Provides Retaliation Recap
- Third Circuit's opinion in Blakney v. City of Philadelphia
- Brief summary on Lawffice Space

13. Duck Dynasty - First Amendment and Private Entities
- Here's an article I wrote regarding the legal implications of the Duck Dynasty controversy. It doesn't capture the full thrust of this part of my presentation. I'm hoping to address these issues in a new article of some sort, tentatively titled "The First Amendment Generally Does Not Protect Employees BUT . . . " - addressing the general notions of free speech, free religion, and how they impact teh employment relationship.

14. The Expanding NLRB
This one could be an entire book, but here are a few links to capture the flavor:
- Article: NLRB to Employers: You Can't Prohibit Negativity and Gossip
- One of many Lawffice Space entries on the NLRB's foray into social media conduct
- NLRB Regional Director's Decision regarding Northwestern Football (.pdf)

15. Fun Cases
I had a bunch of interesting cases lined up to fill time if I got to the end with plenty of time to spare. I only got to a few, but here are some more:
- Daughter's Facebook Posts Costs Dad his Settlement
- Iowa Court Allows Firing of "Irresistible" Dental Assistant
- Fired for posing at work in KKK garb (Eric Meyer - The Employer Handbook)
- Yoga instructor claims she was fired for being "too cute" sues Playmate and husband

Feedback is always welcome. What did I miss? The timeframe is about the last 10-11 months (I presented to this same group last year, after the Supreme Court term had ended - so those cases are outside of the scope).