Fired for What!? - Farting While Singing

I don't want to set the bar too high - but this may be my best Fired for What!? yet. An opera singer claims she is no longer able to work (not clear if she was actually fired per se) because she can't stop farting while singing.

The problem allegedly arose following an episiotomy during child birth. Now, she has filed a lawsuit against the hospital, claiming that a nurse-midwife performed the procedure without consent.

C'mon, at least have the common courtesy to file some kind of ADA claim against someone! I can't generate a dozen blog posts off of a med-mal claim. Fingers crossed that she is able to cobble some type of ADA claim together.

In all seriousness, this actually sounds quite awful and I hope she recovers and finds work.

Northwestern Football Players . . . to Unionize?

I rarely blog mid-day, but this seems worthy. The National College Players Association (NCPA) has petitioned the NLRB to form a union comprised of college athletes. They filed the petition on behalf of Northwestern's football team, including an undisclosed number of signed union cards.

As Professor Paul Secunda tweeted:

Biggest problem: not covered employees under NLRA. RT @PhilipMiles: Northwestern players seek to join labor union http://t.co/1uyXi8ojpF
— Paul M. Secunda (@psecundaWrkProf) January 28, 2014

That does appear to be a problem. And one echoed by the NCAA's response:

This union-backed attempt to turn student-athletes into employees undermines the purpose of college: an education. Student-athletes are not employees, and their participation in college sports is voluntary. We stand for all student-athletes, not just those the unions want to professionalize. Many student athletes are provided scholarships and many other benefits for their participation. There is no employment relationship between the NCAA, its affiliated institutions or student-athletes. Student-athletes are not employees within any definition of the National Labor Relations Act or the Fair Labor Standards Act. We are confident the National Labor Relations Board will find in our favor, as there is no right to organize student-athletes.

The NCPA president claims an "overwhelming majority" of Northwestern's players support unionizing. It will certainly be interesting to see where this goes.

FMLA and the Sunset to Sunrise Requirement

I just came across an interesting FMLA case from the Western District of Pennsylvania. The FMLA provides certain leave requirements, including for employees with a "serious health condition" (or to care for a family member with a "serious health condition").

As the Court explained:

A “serious health condition” is defined as “an illness, injury, impairment, or physical condition that involves (A) inpatient care in a hospital, or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11); see 29 C.F.R. § 825.114 (defining inpatient care as “an overnight stay at a hospital”).

Bonkowski v. Oberg Indus., Inc., CIV.A. 12-00812, 2014 WL 199790 (W.D. Pa. Jan. 17, 2014). The Court couldn't find a definition of "overnight" in the statue or regulations so it turned to dictionaries:

The Merriam–Webster Dictionary defines “overnight” as “for or during the entire night.” The Oxford Dictionaries defines “overnight” as “for the duration of a night.” The ordinary meaning of “overnight” in this context is “for the duration of the night.” Plaintiff can establish he had a qualifying serious medical condition only if he is able to establish he spent the entire “night” as an inpatient at the hospital. In order to assess whether he presented sufficient evidence to do so, requires defining the word “night.” 

The Merriam–Webster Dictionary defines “night” as “the time from dusk to dawn when no sunlight is visible.” The Oxford Dictionaries defines “night” as “the period from sunset to sunrise in each twenty-four hours.” The Federal Aviation Administration in its regulations defines night as: “the time between the end of evening civil twilight and the beginning of morning civil twilight, as published in the Air Almanac, converted to local time.” 15 C.F.R. § 1.1. Based upon these definitions, an “overnight” stay at a hospital is a stay from sunset on one day to sunrise the next day.

(emphasis added). The Court used the Farmer's Almanac to determine the sunrise and sunset times on the dates in question.

This seems fair enough, although it creates some odd implications. For example, whether you have a "serious health condition" is in part contingent on the time of day you go to the hospital. It is also contingent on the day of the year you go to the hospital.

For example, a patient can go to the hospital just after sunset and stay in the hospital for over 24 hours and leave just before sunrise the following day - and that's not a serious health condition? Meanwhile, in the summer, another patient can go to the hospital just before sunset at 9:00 pm and leave just after sunrise at 6:00 am (a total of only 9 hours) and that is serious health condition?

I don't fault the Court. It applied the text of the statute - but it leads to some bizarre applications.

Breaking: SCOTUS Decides "Changing Clothes" Wage and Hour Case

This just in: The U.S. Supreme Court has decided what constitutes "changing clothes." Belive it or not, it's actually an important issue. The opinion is Sandifer v. U.S. Steel (available here).

Justice Scalia, for a unanimous court (except Sotomayor opts out of footnote 7), makes my job easy by providing a cut-and-paste-able description of the issue:

The question before us is the meaning of the phrase“changing clothes” as it appears in the Fair Labor Standards Act of 1938, 52 Stat. 1060, as amended, 29 U. S. C. §201 et seq. (2006 ed. and Supp. V). . . . Petitioners point specifically to 12 of what they state are the most common kinds of required protective gear: a flame-retardant jacket, pair of pants, and hood; a hardhat; a “snood”; “wristlets”; work gloves; leggings; “metatarsal” boots; safety glasses; earplugs; and a respirator. At bottom, petitioners want to be paid for the time they have spent putting on and taking off those objects. In the aggregate, the amount of time—and thus money—involved is likely to be quite large. Because this donning-and-doffing time would otherwise be compensable under the Act, U. S.Steel’s contention of noncompensability stands or falls upon the validity of a provision of its collective-bargaining agreement with petitioners’ union, which says that this time is noncompensable. The validity of that provision depends, in turn, upon the applicability of 29 U. S. C. §203(o) to the time at issue. That subsection allows parties to decide, as part of a collective-bargaining agreement,that “time spent in changing clothes . . . at the beginning or end of each workday” is noncompensable.

So, what's the bottom line? Does putting this stuff on and taking it off count as "changing clothes," thus allowing the parties to collectively bargain to render it noncompensable?

The short version is that almost all of that stuff sounds a lot like "clothes" to the Court. So almost everything was properly excluded as noncompensable. The Court noted that some of the stuff - safety glasses, earplugs, and a respirator - might not be "clothes." But, the Court does not require a minute-by-minute breakdown of how much time is spent on those particular items. Instead:

[I]f the vast majority of the time is spent in donning and doffing “clothes” as we have defined that term, the entire period qualifies, and the time spent putting on and off other items need not be subtracted.

Another SCOTUS labor and employment law case is in the books.

Butt-Grabber Clears Summary Judgment Hurdle

When an employee assaults a woman in the course of his employment, that's usually a pretty safe termination right? That's what I thought until I read Mitchell v. City of Pittsburgh (opinion here). HT: Eric Meyer who put the Complaint on Scribd and blogged about this case yesterday.

Prior to terminating the now-plaintiff, the employer received the following complaint:

[A nurse] stated . . . that as the patient was about to be moved, [Plaintiff, an EMT,] walked up behind her and brushed up against her, which took her by surprise. [The nurse] stated that seconds later [Plaintiff] grabbed her buttocks, and placed his fingers “very close to [her] private area.” [The nurse] stated she objected immediately, and [Plaintiff] responded: “That was for Valentine’s Day, they call me walking chocolate.” . . . . [The nurse] related that “[Plaintiff] placed both hands . . . near her vaginal area and her heels lifted off the ground,” adding that she “bolted upright” and said, “Excuse me! What was that?”

After an investigation, the employer terminated the plaintiff. The plaintiff filed race and age discrimination claims against the employer.

He has no chance of winning, right? Not so fast. The Court noted several "similar" incidents in which white employees were not terminated. I put "similar" in quotes because I think it's at least questionable whether they are really similar to the allegations against the plaintiff here.

Generally, they entail paramedics striking patients who were intoxicated and/or combative. Call me crazy, but I think smacking someone who is punching you is slightly different from randomly groping a co-worker's butt. The Court saw it differently though and held that a jury could find that the employer treated "similarly situated" white employees better than it treated the black plaintiff.

Raiders Cheerleader Files Wage and Hour Lawsuit

Give me an 'L'! Give me an 'A'! Give me a 'W-S-U-I-T'! What's that spell!? LAWSUIT! An Oakland Raiders cheerleader has filed a lawsuit (Complaint available here) asserting assorted California labor law violations.

The claims are generally wage and hour claims. The cheerleader alleges that she gets paid a flat fee per game, which does not add up to minimum wage. She cites factors such as required appearances, disciplinary fines, and required out-of-pocket expenses. She also claims that the Raiders don't pay them until January, which violates California law requiring timely payment.

You can read the Complaint for the full rundown but other claims include: failure to pay overtime, unlawful pay deductions, failure to provide wage statements, an unlawful restriction prohibiting discussion of wages, failure to provide meal breaks and breach of contract. She also appears to be filing on behalf of a class of Raider cheerleaders.

One interesting component of the Complaint is that it includes a Raiderette contract as an exhibit.

Now, I know what you're thinking - doesn't getting the opportunity to watch McMoxie up close in all of his glory constitute an affirmative defense of *overcompensation*? I don't know enough about California law to say for certain . . . .  but I'm guessing no.

Image: Oakland Raiders logo used in commentary on Oakland Raiders.

Volokh to WaPo!?

My apologies for departing from the usual employment law programming on this blog, but this is big news. One of the most popular law blogs has a new gig . . . Volokh Conspiracy is now part of the Washington Post!

You can see their new home here. Volokh features a number of law professors who provide insightful commentary on the (mostly) current legal issues of the day. It features three of my old George Mason profs (although David Bernstein is the only one I actually had for class).

Unfortunately, it will be behind a paywall (booooo), but not for six months (yaaaaayyyyy), but then you'll have to pay (boooooo), unless you access it via .edu or .gov domains, via RSS feed, or via Twitter (yaaaayyyyy).

This gives blawgers hope that their content may one day reach a large audience in the big leagues of mainstream media. No truth to the rumors that Lawffice Space is heading to the New York Times. Now excuse me while I go wait by the phone.

SCOTUS Grants Cert in First Amendment Public Employee Retaliation Case

On Friday, the Supreme Court granted certiorari in Lane v. Franks (SCOTUSblog page here) (as an aside, Tom Goldstein, the publisher of SCOTUSblog, appears to be lead counsel on this case). Per the Petition, the issue presented is:

Is the government categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities?

With a follow-up question of whether qualified immunity precludes damages.

If you're wondering how this issue pops up, here's a brief statement of the facts from the Petition:

This is a First Amendment retaliation case arising from a public employee’s truthful subpoenaed testimony in a federal fraud prosecution. Petitioner alleges that respondents terminated him in retaliation for his compelled testimony at the criminal trial of a corrupt legislator who abused her position to defraud the government.

The Eleventh Circuit held that the testimony received no First Amendment protection, in conflict with prior decisions from the Third, Seventh, and Ninth Circuits. The Supreme Court has not yet scheduled arguments.

Pennsylvania Martin Luther King Jr. Day Holiday Statute

Pennsylvania has a fairly extensive list of holidays. In fact, we have a whole title, Title 44, dedicated to "Legal Holidays and Observances." The section identifying the major holidays specifically identifies, "the third Monday of January, known as Dr. Martin Luther King, Jr. Day." 44 Pa. Stat. Ann. § 11 (West). Which, by the way, is today.

Westlaw's "Editor's and Revisor's Notes" explain that we swapped Lincoln and Washington's birthdays for President's Day and MLK Day in 1978:

The 1978 amendment substituted “the fifteenth day of January, known as Dr. Martin Luther King, Jr. Day, the third Monday of February, known as Presidents' Day” for “the twelfth day of February, known as Lincoln's Birthday, the third Monday of February, known as Washington's Birthday”.

We moved MLK day from January 15th to the third Monday in January in 1985.

Pennsylvania also recognizes MLK Day in its banking provisions as a "fixed" holiday that covered institutions "shall" observe. 7 Pa. Stat. Ann. § 113.

Fun fact: MLK is not the only individual with a holiday in Pennsylvania. We also celebrate (I use the term loosely) Commodore John Barry Day, Hubert H. Humphrey Jr. Day, Columbus Day, William Penn's Birthday, Rosa Parks Remembrance Day . . . and, of course, who could forget Rachel Carson Day in celebration of the "Mother of the Age of Ecology?" (May 27th - mark your calendars!).

For more history, check out my 2012 post on MLK Day (featuring a great Public Enemy video).

SCOTUS Hears Argument on Tax Withholdings for Severance Payments

I know, I know - nothing is more exciting than FICA and the tax implications of severance payments! Well, great news! The Supreme Court heard oral arguments on a case involving precisely that issue.

On Tuesday, the Court heard oral arguments in U.S. v. Quality Stores, Inc. (SCOTUSblog case page here). According to the government's brief, the issue presented is:

Whether severance payments made to employees whose employment was involuntarily terminated are taxable under the Federal Insurance Contributions Act, 26 U.S.C. 3101 et seq.

You can read the full transcript here (audio should be up here by Friday afternoon). According to Bradley Joondeph on SCOTUSblog, the smart money is on the government. We'll probably have to wait a few months for the formal decision.

Municipal Employee Fired for DUI Still Gets Unemployment Compensation

Under Pennsylvania law, an employee is generally ineligible for unemployment compensation benefits if he was terminated for willful misconduct. One of the trickier areas of UC law is determining when off-duty misconduct precludes UC benefits.

In a recent Commonwealth Court decision, Palladino v. UCBR, 2013 WL 6685015 (Dec. 19, 2013), the Court analyzed a municipal employee's UC claim after he was fired for an off-duty DUI conviction. The Court reiterated the legal standard from Dunbar v. UCBR, 475 A.2d 1355 (1984):

[a]lthough the executive may and does properly require that Commonwealth employees should obey the law off their job as well as on and may discharge them for failing to do so, a worker is not ineligible for unemployment compensation unless his discharge is for willful misconduct connected with this work.

In Palladino, the employee supervised plant operators and truck drivers at a Bethlehem wastewater treatment plant. The Court concluded:

Employer in this case did not terminate Claimant's employment based upon an inability to perform his job as a result of the off-duty conduct; rather, Employer terminated his employment for off-duty conduct unrelated to his work (i.e., violation of the Code of Ethics).

The Court held that the DUI conviction was non-work-related and the employee was therefore eligible for unemployment compensation benefits.

Image: My personal photograph of the Centre County Career Link where UC referee hearings are held (it recently moved to a new location).

SCOTUS Hears Noel Canning (Recess Appointments)

Yesterday, the Supreme Court heard oral arguments in NLRB v. Noel Canning (SCOTUSblog page), the constitutional challenge to President Obama's recess appointments to the NLRB. You can read a full transcript of the oral arguments here.

I have pulled a few quotes that I think sum up the dilemma the Court faces.

First, the Recess Appointments clause was designed for a different time and to address a different problem. Justice Kagan ponders aloud:

You know, absence in this day and age -­ this is not the horse and buggy era anymore. There's no real -- there's no such thing truly as congressional absence anymore. And that makes me wonder whether we're dealing here with what's essentially an historic relic,something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have.

As Justice Ginsburg bluntly put it, nowadays "the Senate is always
available." Which leads to the question of what to do about it if in fact the Recess Appointments clause is an "historic relic" that has morphed into something different from what the Constitution actually says.

Justice Scalia frames it as:

What do you do when there is a practice that -- that flatly contradicts a clear text of the Constitution? Which -- which of the two prevails? . . . . So if you ignore the Constitution . . . often enough, its meaning changes?

Or, as Justice Kagan puts it:

The idea that we would wake up one fine morning and chuck all of that because all of a sudden we happened to read the clause, I mean, that at least needs to be defended.

The Court seemed to focus on this notion that President Obama's recess appointments (and many, many recess appointments by numerous presidents before him) bear little resemblance to the actual Recess Appointments clause as originally ratified. Do we just accept the new balance that has played out over the years? Or stick to the text and original meaning of the Constitution (I think this is a no-brainer for at least a few of the Justices).

Even if we allowed intrasession recess appointments - the appointments in this case occurred while the Senate purported to be in session, albeit holding only "pro forma" sessions in which no work was actually done. Does the Senate decide when it's in session?

We'll have to wait a few months to get answers to these questions. I think the smart money is on some type of limitation on the president's recess appointments power. I think it remains a mystery as to just how far the Supreme Court will go.

Publishing Disciplinary Actions on Twitter

Just a quick post to introduce readers to Police Chief David O. Brown. He announces disciplinary actions and terminations (and the basis for them) on Twitter. For example:

I have terminated 911 Call Taker Moises Limon today for driving while under the influence and not reporting his arrest to his supervisor.

To his credit, he does appear to note that the employees have certain civil service appeal rights.

So, is this a good idea from a legal perspective? My biggest concern is that the information may turn out to be false. Then you're flirting with some type of defamation or interference with economic opportunities tort action. From a non-legal perspective, he runs the risk of being perceived unfavorably. This apparently is a concern of his as he does not like being called . . . I'll let you scroll to the bottom of the linked story to see (parental advisory).

HT: Derek Bottcher, my fellow Mason Law classmate and attorney, via email.

Attorney Duped by Nigerian Inheritance Scam Suspended

I like to believe that somewhere in Nigeria there is a prince with extraordinary wealth who can't understand why nobody will help him transfer some funds to the United States. He asks his right-hand-man about it, and he responds, "sire, I have emailed literally millions of Americans and offered them literally millions of dollars, but unfortunately none of them are willing to help us!" The prince responds, "then you shall email them again and offer even more money!"

Of course, we've all received these emails. And almost all of us have recognized it as a scam with no real prince, no millions of dollars, just an attempt to get rich quick by duping some random person on the Internet. You may be surprised to learn that an attorney actually fell for it (a similar scam at least) and got suspended for roping his clients into this mess. From the Iowa Supreme Court opinion:

While representing Floyd Lee Madison in a criminal case in 2011, [Attorney] Wright was presented with documents purporting to evidence that Madison was the beneficiary of a large bequest from his long-lost cousin in Nigeria. Madison represented to Wright that upon payment of $177,660 in taxes owed on the inheritance in Nigeria, the sum of $18,800,000 would be released to Madison. He asked Wright to represent him in securing the transfer of the funds from Nigeria. In consideration for a fee equal to ten percent of the funds recovered, Wright agreed to represent Madison in the Nigerian transaction.

Sadly, the attorney came up with the "taxes" due by getting the money from a handful of his clients. Needless to say, the $18M never came through. In fact, the scammers claimed the money was detained in Spain and they needed 25,600 Euros in "logistics charges." The attorney's license was suspended for twelve months.

RIP NLRB Poster Requirement

The long-troubled NLRB poster requirement appears to finally and officially be dead. Last year,

two different circuit courts struck down the rule that would have required employers to display a poster about NLRA rights.

Now, the NLRB has issued an announcement, including:

The National Labor Relations Board (NLRB) has decided not to seek Supreme Court review of two U.S. Court of Appeals decisions invalidating the NLRB’s Notice Posting Rule, which would have required most private sector employers to post a notice of employee rights in the workplace.

That pretty much settles that (unless the NLRB decides to spontaneously reinstate the rule in other circuits - which I find implausible).

HT: WorkplaceProfBlog.

Image: NLRB Seal - Not official use.

Religious Discrimination for Mandatory Screaming at Ashtrays

I highly recommend checking out EEOC.gov periodically to look at their news releases and keep up with current events. If I have time, I read the releases. But, if I'm busy I might not read the full release, just the headline - especially if the headline is something innocuous like, Dynamic Medical Services to Pay $170,000 to Settle EEOC Religious Discrimination Suit.

Well, apparently I should have clicked the link! The allegations are as follows:

The EEOC charged in its suit that Dynamic Medical Services, Inc. ("DMS") required Norma Rodriguez, Maykel Ruz, Rommy Sanchez, Yanileydis Capote and other employees to spend at least half their work days in courses that involved Scientology religious practices, such as screaming at ashtrays or staring at someone for eight hours without moving. The company also instructed employees to attend courses at the Church of Scientology. Additionally, the company required Sanchez to undergo an "audit" by connect­ing herself to an "E-meter," which Scientologists believe is a religious artifact, and required her to undergo "purification" treatment at the Church of Scientology.

I think it goes without saying (but what the heck, I'll say it anyway), that forcing employees to participate in religious practices is a no-no (whether it's going to church or screaming at ashtrays).

HT: Eric Meyer (who apparently did click the link), EEOC Thrashes Scientologist Employer that Allegedly Made Workers Scream at Ashtrays. That's why he has the #1 employment law blog in the ABA Blawg 100 ladies and gentlemen!

It's the Most Miserable Day of the Year!

You know that song, "It's the Most Wonderful Time of the Year"? Of course you do - you just heard it 500 million times last month. At first it really got you in the holiday mood, but by the end of December you wanted to defenestrate your stereo every time it came on (just me?).

Well, today is apparently the most miserable time of the year. Researchers have concluded that today is "Blue Monday" and it's the most miserable day of the year, citing everything from shopper's remorse to relationship trouble to the weather. At this point I should note that we're supposed to hit -5 here in State College, PA.

In any event, happy worst day of the year!

Books I Read in 2013

Back in April, I started using Shelfari (my profile) to track my reading. One particularly useful feature is that you can import your LinkedIn Amazon Reading List, a plug-in that was inexplicably killed by LinkedIn. As I started in April, I don't have my full list for 2013, but I think this is just about everything I read in chronological order:

• The Hobbit; or, There and Back Again by J.R.R. Tolkien (one of the very few books I have now read twice in my life);
• America's Unwritten Constitution: The Precedents and Principles We Live By by Akhil Reed Amar
• Killing Kennedy: The End of Camelot by Bill O'Reilly
• The Price of Justice: A True Story of Greed and Corruption by Laurence Leamer
• Lawyer Lincoln by Albert A. Woldman
• The Employer Bill of Rights: A Manager's Guide to Workplace Law by Jon Hyman (author of the Ohio Employer's Law Blog)
• Ender's Game (The Ender Quintet) by Orson Scott Card
• Thinking, Fast and Slow by Daniel Kahneman
• The Ox-Bow Incident (Modern Library Classics) by Walter Van Tilburg Clark
• Unprecedented: The Constitutional Challenge to Obamacare by Josh Blackman (blogger at JoshBlackman.com)
• David and Goliath: Underdogs, Misfits, and the Art of Battling Giants by Malcolm Gladwell
• Speaker for the Dead (The Ender Quintet) by Orson Scott Card
• The Right to Earn a Living: Economic Freedom and the Law by Tim Sandefur (technically finished in 2014, but read most of it in 2013).

Mostly the law, constitution, history, and economics-y stuff I  ordinarily read. This year, I made an effort to add some fiction into the mix. I'm always interested in recommendations, so comment away!

Tough Working Conditions do not Equal Slavery

Sometimes judges have to make tough calls. This is not one of those times.

In Mulqueen v. Energy Force, the plaintiff was assigned to work in a hotel room. She claims she "worked with two younger women in a suite that was disorganized, loud and unprofessional." Worse still, she was assigned work to take home over the weekends and was not compensated for these extra hours.

Okay, we can all probably spot a potential FLSA wage/overtime claim here, right? She claims it was discriminatory and also filed suit under some discrimination statutes. Okay, so far nothing out of the ordinary. And then there's Count 2 of her complaint . . . under 18 U.S.C. §1584 for "Sale into involuntary servitude" under the slavery provisions of the federal criminal code. Ummm, what!?

Yes, §1584 is a statute implementing the Thirteenth Amendment, which prohibited slavery following the civil war. If Plaintiff's comparison of her job to slavery strikes you as appallingly off-base . . . well, that's because it is.

The Court made quick work of this asinine claim:

In the present case, plaintiff alleges challenging working conditions. Plaintiff's work environment, however, “does not evoke in the court's mind the burdens endured by the African slaves in the cotton fields or kitchens of the antebellum south.” United States v. Bertoli, 994 F.2d 1002, 1022 (3d Cir.1993). Moreover, the general defense against oppressive hours, pay, working conditions or treatment is the right to change employers. Pollock v. Williams, 322 U.S. 4, 17–18, 64 S.Ct. 792, 88 L.Ed. 1095 (1944). Plaintiff never claimed that the defendants physically restrained her or prevented her from leaving work. Rather, she always maintained the right to walk away from defendants' employment. In short, plaintiff has not alleged that her employment with defendants rose to the level of involuntary servitude.

Her claim was dismissed with prejudice.

HT: HR Specialist Pennsylvania Employment Law (Dec. 2013) - brought to my attention by Janine Gismondi.