Today is Constitution Day!

Ah yes, today is Constitution Day! We celebrate on the date the Constitutional Convention signed the document back in 1787. Of course, it would take some time and fierce debate before it was ratified.

I recently read a good book on the ratification debates: Pauline Maier's Ratification The People Debate the Constitution, 1787-1788. If you're interested in the debates, check it out. I think people, on average, underestimate how close "we the people" came to rejecting this thing.

I guess I should bust out an employment law tie-in, since this is an employment law blog. The Constitution provides numerous protections for public employees, including due process, equal protection, free speech, free exercise, and more.

For a good example of how the Constitution impacts employment laws in other contexts, check out the Supreme Court's 2012 opinion in Hosanna-Tabor v. EEOC. The Court analyzed some First Amendment issues, including the ministerial exception to federal employment laws.

Finally, what would Constitution day be without the Constitution!? Read it here.

"Upskirt" Shots Lead to Attorney Suspension - COTW #160

I don't write a lot of posts about professional licensing issues, although I contend they count as employment law. The latest Case of the Week deals specifically with attorney licensing.

Last week, the Pennsylvania Supreme Court issued this order, suspending an attorney for 6 months (plus probation for 3 years and some mental health stuff). Nothing too interesting in the order - it's basically just accepting the recommendations of the Disciplinary Board.

But fear not, The Legal Intelligencer has the scoop in "Upskirt" Corporate Counsel gets Six-Month Suspension. If you're not familiar with the concept of "upskirts," they're photos and/or videos that creepy people take by secretly shooting/filming up girls skirts.

So, what did this attorney allegedly do? Per the article:

According to the report, on September 9, 2008, Boulware, in a Springfield Township, Montgomery County, Acme Market, followed a 16-year-old girl and her mother throughout the store, filming the girl with a video camera attached to his shoe as she bent over to pick up store items. Earlier that same day, Boulware followed an adult woman into the same market and similarly videotaped her up her skirt by standing close to her, the board noted in its report. Both incidents occurred without the knowledge and consent of the victims, the board's report said.

Seriously? At what point does someone decide that it's a good idea to strap a camera to his shoe and chase young girls around the grocery store trying to film up their skirts? Frankly, I think six months is light.

The Obamacare Employer Mandate that's Still On

First post of the week on Thursday!? What's up with this dereliction of duty!? Sorry, it has been busy week.

I wanted to remind employers of an Obamacare mandate that as far as I know is still "on" - i.e. not delayed until next year like the employer insurance mandate. Under new provisions in the Fair Labor Standards Act, passed as part of the Affordable Care Act:

In accordance with regulations promulgated by the Secretary, an employer to which this chapter applies, shall provide to each employee at the time of hiring (or with respect to current employees, not later than March 1, 2013), written notice--

(1) informing the employee of the existence of an Exchange, including a description of the services provided by such Exchange, and the manner in which the employee may contact the Exchange to request assistance;

(2) if the employer plan's share of the total allowed costs of benefits provided under the plan is less than 60 percent of such costs, that the employee may be eligible for a premium tax credit under section 36B of the Internal Revenue Code of 1986 and a cost sharing reduction under section 18071 of Title 42 if the employee purchases a qualified health plan through the Exchange; and

(3) if the employee purchases a qualified health plan through the Exchange, the employee may lose the employer contribution (if any) to any health benefits plan offered by the employer and that all or a portion of such contribution may be excludable from income for Federal income tax purposes.

29 U.S.C.A. § 218b. Of course, we all know silly things like laws are just recommendations with no actual binding effect, right? (sadly, I'm not sure if that's sarcasm or honest analysis).

The Department of Labor has announced that employers may ignore that March deadline, and announced a new deadline of October 1, 2013. For the Department's specific guidance, see Guidance on the Notice to Employees of Coverage Options under Fair Labor Standards Act §18B and Updated Model Election Notice under the Consolidated Omnibus Budget Reconciliation Act of 1985.

Fox Business has some more coverage, and suggests that employers face a $100/day fine for noncompliance.

Image: DOL Seal - Not official use.

"Protected Activity" No Shield for Insubordination - COTW #159

An employee in the Third Circuit learned a tough lesson: "P
rotected activity" may protect you from retaliation, but it doesn't protect you from termination for insubordination.

The employee noticed an error in her paycheck and notified the manager - who immediately cut her a check for the difference. Nevertheless, the employee emailed the Pennsylvania Department of Labor, and also complained to her supervisor noting that the employer could get in trouble. Perhaps a little overkill, but generally so far, so good - right?

Well, a co-worker complained that the employee was being disruptive that morning and . . . I'll, let the Third Circuit take it from here:

When [the employee] arrived at the Theatre that evening, [her supervisor] told her that she needed to speak with her immediately. [the employee] stated that she had a scheduled sales call at 6:00 p. m. and did not have time to speak with [the supervisor] at the moment. [The supervisor] continued to insist, and [the employee] finally said, “I'll eat your ass if you want me to, but I have to make this phone call first .” She then proceeded to make the telephone call. [The supervisor] told [the employee] she was fired and tried to remove the phone receiver from [her] hand.

Garges v. People's Light & Theatre Co., 13-1160, 2013 WL 3481723 (3d Cir. June 28, 2013). And so she was fired.

Her response? A lawsuit under the FLSA, Title VII, and the Equal Pay Act. The result? She lost because she "did not show that the Theatre's reason for terminating her—insubordination—was a pretext for discrimination." Lesson learned.

HT: Janine Gismondi via the August 2013 Pennsylvania Employment Law HR Specialist.

NLRB? There's an App for That

Last week, the National Labor Relations Board announced (press release here) a new iPhone/Android app. Per NLRB Chairman Pearce:

With this app, we are using 21st Century technology to inform and educate the public about the law and their rights.

The app is largely informational. Aside from a link to the NLRB website and a "phone" button to contact the NLRB, there really isn't much functionality there. The main show seems to be a collection of information about the NLRA that users can drill down into by selecting broad categories (starting with a menu of Employee, Employer, or Union).

Just another example of the NLRB's extensive outreach efforts.

Image: NLRB Seal - Not official use.

Lawffice Links - Ronald Coase and the Coase Theorem

Ronald Coase passed away on Monday at the age of 102. If you're not familiar with him, he was one of the founding scholars in the field of law and economics. I attended George Mason Law School, which emphasized law and economics. A running joke was that you could raise your hand in any class at any time and simply say "Coase Theorem" and inevitably be deemed correct and insightful. The least I could do was bake some Lawffice Links in his memory:

• A summary of the aforementioned Coase Theorem.
• His article, The Problem of Social Cost, the most cited law review article of all time.
• He won the Nobel Prize in Economics, here is his Nobel Prize Lecture.
• The University of Chicago has a great tribute to his life.
• For more, Volokh has compiled some notable remembrances.

IRS Addresses Same-Sex Marriages Post-Windsor

Federal agencies are starting to stake out their positions following the Supreme Court's decision in U.S. v. Windsor. The Court struck down the part of DOMA that defined marriages as only those between one man and one woman for over 1,000 federal statutes.

The IRS recently issued Rev. Rul. 2013-17, which addresses same-sex marriages for purposes of federal taxes. Cutting straight to the holdings:

1. For Federal tax purposes, the terms “spouse,” “husband and wife,” “husband,” and “wife” include an individual married to a person of the same sex if the individuals are lawfully married under state law, and the term “marriage” includes such a marriage between individuals of the same sex.

2. For Federal tax purposes, the Service adopts a general rule recognizing a marriage of same-sex individuals that was validly entered into in a state whose laws authorize the marriage of two individuals of the same sex even if the married couple is domiciled in a state that does not recognize the validity of same-sex marriages.

3. For Federal tax purposes, the terms “spouse,” “husband and wife,” “husband,” and “wife” do not include individuals (whether of the opposite sex or the same sex) who have entered into a registered domestic partnership, civil union, or other similar formal relationship recognized under state law that is not denominated as a marriage under the laws of that state, and the term “marriage” does not include such formal relationships.

Now, if you're wondering what this will mean for employers, my friend Mike Chittenden emailed me about some IRS Q&A on benefits plans (and other issues arising from the new ruling). Specifically, check out Q&A 16-19. For example, qualified retirement plans must recognize legal same-sex marriages based on where the couple married, regardless of where they live (but domestic partnerships and civil unions do not count).

Image: That is apparently the IRS logo - not official use.