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Monday, May 23, 2022

Third Circuit to NLRB: You can investigate complaints from random people... but take a joke!

Remember this one? The National Labor Relations Board (NLRB) concluded that an executive officer of The Federalist violated the National Labor Relations Act (NLRA) with the following joke tweet:


"FYI @fdrlst first one of you tries to unionize I swear I'll send you back to the salt mine." On Friday, the Third Circuit (my home circuit!) reversed in a precedential opinion in FDRLST Media, LLC v. NLRB

Notably, "the record does not show that any employee expressed concern over [the tweet's] message," but some guy named Joel Fleming in Massachusetts with no connection to the employer filed an unfair labor practice charge (apparently based on ideological opposition to the publication). The first part of the Court's ruling is important:

We reaffirm today that [the NLRA] places no limitations on who may file an actionable unfair labor practice charge. So the Board had statutory authority to address Fleming’s charge.

So, even though nobody with any connection to The Federalist (let alone an aggrieved party) filed a complaint - the NLRB could still pursue it. 

Not official use.
The Court went on to provide about 17 pages of analysis to conclude that the tweet seemed more like a joke about a recent current event (here, the Vox walkout that had just occurred) than an actual threat. The Court noted several contextual clues: the farcical nature of a "salt mines" reference, the forum (Twitter) and the fact that it was a personal tweet, the nature of The Federalist as a small employer that provides commentary on such issues, the subjective interpretation of the tweet by the employees, etc. 

Judge Matey authored an opinion concurring in the judgment that the tweet was not a violation of the NLRA, but parting ways with the majority on the jurisdictional issue:

[T]he National Labor Relations Act cabins charging authority to those who suffered some adverse effect in the workplace. Not, as here, someone who took offense to something seen while scrolling Twitter. As the filer was not aggrieved under the NLRA, the Board lacked jurisdiction to launch this case . . . . the best reading of the NLRA trims the NLRB’s jurisdiction and prevents unaffiliated parties from searching the internet for wisecracks to transform into workplace violations that unleash the NLRB’s sweeping power.

Fleming's response to this ruling seems to only confirm the problem: 

lulz. It took me less than fifteen minutes to file the charge and the action was litigated exclusively by the NLRB after that.
To him: "less than fifteen minutes." To The Federalist: Nearly three years of litigation. 

Tuesday, May 17, 2022

EEOC publishes technical assistance document on artificial intelligence and the ADA

Not official use.
What if an employer uses a "chatbot" to screen applicants? And, let's say the chatbot is programmed to screen out applicants who have a gap in their resumes. But, wait! What if the gap was caused by the applicant having a disability and needing time off for treatment? That could raise some ADA issues!

That's just one of the examples provided by the EEOC in its latest technical assistance document: The ADA and AI: Applicants and Employees. Employers who use software, algorithms, and AI to assess job applicants and employees should check out this document. It's mostly a high-level overview, but some good food for thought. 

Monday, May 2, 2022

SCOTUS to review SCOPA on personal jurisdiction for corporations

It's not every day that the Supreme Court of the United States (SCOTUS) grants certiorari to hear a case from the Supreme Court of Pennsylvania (SCOPA) - but it just happened! SCOTUS will hear Mallory v. Norfolk Southern Railway Co., and the issue presented is:

Whether the due process clause of the 14th Amendment prohibits a state from requiring a corporation to consent to personal jurisdiction to do business in the state.

 From SCOPA's opinion:

Under Pennsylvania law, a foreign corporation "may not do business in this Commonwealth until it registers" with the Department of State of the Commonwealth. 15 Pa.C.S. § 411(a). Further, "qualification as a foreign corporation under the laws of this Commonwealth" constitutes a sufficient basis to enable Pennsylvania courts to exercise general personal jurisdiction over a foreign corporation. 42 Pa.C.S. § 5301(a)(2)(i).

Put differently: a corporation that registers to do business in Pennsylvania is forced to "consent" to jurisdiction here, even if the corporation lacks "continuous and systematic affiliations" with Pennsylvania. Cutting to the chase, SCOPA ruled:

Legislatively coerced consent to general jurisdiction is not voluntary consent and cannot be constitutionally sanctioned. Accordingly, our statutory scheme is unconstitutional to the extent that it affords Pennsylvania courts general jurisdiction over foreign corporations that are not at home in the Commonwealth.

Many other courts have chimed in on this general issues (involving other states' statutory frameworks). This could be a big personal jurisdiction case for corporate parties. 

Sunday, March 27, 2022

5th Circuit: One N-word is enough to create a hostile work environment

Under Title VII, a hostile work environment claim requires harassment that is "severe or pervasive." A single incident can be severe enough to meet this standard. Ordinarily though, a single incident of verbal (as opposed to physical) harassment will not meet this standard. 

Not official use. 
Last week, in Woods v. Cantrell, the Fifth Circuit held that a supervisor calling his subordinate a "Lazy Monkey A__ N_____" in front of his co-workers was severe enough to state claim. I've published the racial epithet as it appears in the (very short) opinion, which includes a footnote, "The racial epithet is not further spelled out anywhere in the record." 

The Court relied in part on a case I wrote about when then-Judge Kavanaugh was nominated to SCOTUS in which he noted "No other word in the English language so powerfully or instantly calls to mind our country's long and brutal struggle to overcome racism and discrimination against African–Americans" (similarly concluding that a single use of the N-word by a subordinate would create a hostile work environment). 

Monday, March 21, 2022

Ketanji Brown Jackson and Labor and Employment Law

President Biden nominated Judge Ketanji Brown Jackson to the Supreme Court, and the Senate hearings are set to begin today. She has only been on the D.C. Circuit for about 8-9 months, so she does not have a huge appellate record to pull from. She did, however, recently author the opinion in AFL-CIO v. Federal Labor Relations Authority (FLRA)

This was really more of an admin law decision, but it dealt with a labor issue. Specifically, the Federal Service Labor-Management Relations Statute requires federal employers to engage in collective bargaining with their employees' representatives when management initiates changes to the terms and conditions of employment. The change, however, must "have more than a de minimis effect on such working conditions."

The FLRA adopted a new standard, where "the duty to bargain is triggered only if a workplace change has 'a substantial impact on a condition of employment.'" Judge Jackson for a three-judge panel wasn't having it:

[W]e hold that the FLRA’s decision to abandon its de minimis exception in favor of a substantial-impact threshold was not sufficiently reasoned, and thus is arbitrary and capricious in violation of section 706 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A). 

I'd generally describe the decision as skeptical of agency rule-shifting, and a favorable outcome for labor. That said, I'd also caution about reading too much into a single decision. 

For a deeper dive on Judge Jackson's labor and employment law history, including her substantial time as a trial court judge, check out Judge Ketanji Brown Jackson’s Labor Decisions on On Labor. 

Wednesday, February 2, 2022

Third Circuit: University can be held liable for harassment by non-student guest under Title IX

The Third Circuit issued an interesting opinion analyzing a university's potential liability under Title IX for sex discrimination and harassment against a student by a non-student guest. The case is Hall v. Millersville University, et al. The underlying facts are horrific. A student was murdered in her dorm room by her non-student boyfriend. The precedent here, however, applies to Title IX, which covers sex discrimination and harassment more broadly (and ordinarily far short of murder).  

Several of the elements of a Title IX claim warrant little attention: the university received federal funds, sexual harassment occurred, and the harassment deprived the victim of her access to educational opportunities. The remaining elements required some in-depth analysis, which I will only briefly touch on:

Not official use.
The university can be held liable for the non-student's conduct if it "exercised substantial control over the harasser and the context in which the harassment occurred." In concluding that the university exercised such control, the Court noted the university's guest policies, ability to remove people from the premises, and ability to issue "No Trespass Orders."

The university must also have had knowledge of the harassment. Here, it is undisputed that a resident assistant (RA) had reported prior violence in the dorm that had left the student with a black and blue eye. The non-student harasser (i.e. murderer) had been removed from the dorm on multiple occasions. The roommate's mother had also reported concerns to the police. 

Finally, the university must have showed "deliberate indifference" to the harassment. Here, the university got the harasser out of the dorm when it received notice of an incident, which it argued was sufficient to meet its burden. The Court saw it differently:

The record shows that after receiving [the] report, neither Millersville’s Deputy Title IX Coordinator nor its Area Coordinator ensured the report was received by Millersville’s Title IX Coordinator, as they were required to do under Millersville’s own Title IX policy. Moreover, the record reveals Millersville did not reach out to [the victim] after the October 4th incident, and that it did not take any action in response to [the victim's roommate's mother's] calls other than to tell her nothing could be done without a complaining witness. 

Ultimately, the Court concluded that summary judgment was inappropriate here and remanded the case back to the district court where it will presumably be on track for a trial. 

This case will likely cause universities to re-examine how they respond to sexual harassment against  students by non-students. 

Wednesday, January 26, 2022

OSHA withdraws vax-or-test ETS, but plows ahead with proposed rule

Not official use.
Yesterday, OSHA announced that it will withdraw its COVID-19 vaccine-or-test emergency temporary standard effective January 26, 2022. But, ETS's are generally submitted as proposed rules that will go through the administrative rulemaking process and grow up into "real" regulations. OSHA announced it "is not withdrawing the ETS as a proposed rule."

Given the Supreme Court's ruling, I doubt OSHA will plow ahead with a rule that is identical to the ETS. For now, the vax-or-test ETS mandate is off, but a final rule is still coming together.