Meisburg renominated to NLRB
January 26, 2005 by Ross Runkel at LawMemo
The President has re-nominated Ronald E. Meisburg to the NLRB. Meisburg served as a Member of the National Labor Relations Board under a recess appointment made by President Bush on December 26, 2003. That appointment expired December 16, 2004.
Meisburg can be counted on to provide a clear pro-management view on matters of NLRB policy. At the same time, his votes have demonstrated that he will not strain the facts in order favor an employer. On the facts, he calls 'em the way he sees 'em.
I assume the Senate will wait until the President nominates a Democrat before they confirm the nomination. I also assume that this won't happen until the President makes some kind of deal with Senate Democrats. Meanwhile, the Board is working with only three Members instead of five.
Prior to serving on the Board, Meisburg had been a shareholder with Ogletree, Deakins, Nash, Smoak & Stewart, P.C. in Washington, D.C. He previously was a partner with Heenan, Althen & Roles in Washington, and served at the U.S. Department of Labor in the Office of the Solicitor of Labor. While at the Department of Labor, Mr. Meisburg served in the Division of Employee Benefits and the Division of Mine Safety and Health and was awarded the Secretary of Labor's Distinguished Achievement Award. He received a B.A. degree from Carson-Newman College in 1969 and a J.D. from the University of Louisville in 1974.
Mr. Meisburg was president of the Energy and Mineral Law Foundation (1994 - 1995); a member of the Employment Lawyers Advisory Council of the National Association of Manufacturers (1996-1998); and a member of the Industrial Relations Committee of the U.S. Council for International Business (1993-1998).
Mr. Meisburg is married to Mary Helen Ratchford. The family resides in Arlington, VA.
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Plaintiffs pay tax on portion of settlement that went to attorneys
January 24, 2005 by Ross Runkel at LawMemo
The US Supreme Court held this morning that plaintiffs must pay tax on that portion of a settlement that went to attorneys as a contingent fee. Commissioner v. Banks (US Supreme Court 01/24/2004).
Former employees sued their former employers claiming various legal theories under state law and federal law. In each case settlements were reached. The employees filed federal income tax returns that excluded from income that portion of the settlements that the plaintiffs had to pay to their attorneys under contingent fee agreements. The Internal Revenue Service said these amounts should have been included as taxable income, and the Tax Court agreed. The 6th Circuit and the 9th Circuit both reversed, holding that these amounts were not part of the plaintiffs' taxable income. The US Supreme Court unanimously reversed, holding that plaintiffs must pay tax on that portion of the settlement that went to attorneys as a contingent fee.
The Court relied on two basic taxation principles. (1) "Gross income" as defined by the Internal Revenue Code includes "all income from whatever source derived" which means all economic gains not otherwise exempted. (2) A taxpayer cannot exclude an economic gain from gross income by assigning the gain in advance to another party. The Court held that the contingent fee agreement should be viewed as an anticipatory assignment to the attorney of a portion of the client's income from any litigation recovery.
One of the employee-taxpayers brought claims under federal statutes that authorize fee awards to prevailing plaintiffs' attorneys. He argued that the anticipatory assignment principle would be inconsistent with the purpose of statutory fee shifting provisions. The Court did not address these claims because the fee paid to his attorney was calculated solely on the basis of the private contingent fee contract. There was no court-ordered fee award, and no other indication that the fee paid to the attorney was in lieu of statutory fees.
The American Jobs Creation Act of 2004 amended the Internal Revenue Code [read amendment] to allow a tax deduction for amounts a plaintiff pays for attorney fees and court costs in connection with an action involving a claim of "unlawful discrimination" as defined by the Act. The new statute applies only to fees and costs paid after October 22, 2004.
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NLRB allows e-filing for all documents in all cases
January 21, 2005 by Ross Runkel at LawMemo
Kudos to the NLRB for expanding its E-Filing Project to include all documents in both representation and unfair labor practice cases. Parties can go to the NLRB web site and fill out a one page form and submit documents directly to the Office of the Executive Secretary. [Details]
First you need to go to this page and click near the bottom to indicate that you agree to the terms of the NLRB's e-filing program. Then you can proceed to the submission form.
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Private action for retaliation under Title IX?
January 19, 2005 by Ross Runkel at LawMemo
In Jackson v. Birmingham Board of Education the US Supreme Court will decide whether Title IX provides a private cause of action for retaliation against a man because he complained about alleged sex discrimination against women.
The 11th Circuit held in favor of the employer. The US Supreme Court heard oral arguments on November 30, 2004. We're waiting for the decision.
Roderick Jackson, a girls' basketball coach, sued under Title IX of the Education amendments of 1972 claiming he was removed from his coaching position because he complained about practices he believed discriminated against his girls' basketball team in violation of Title IX. The trial court dismissed the action; the 11th Circuit affirmed. The 11th Circuit held that Title IX does not provide a private cause of action for individuals who suffer retaliation for complaining about gender discrimination suffered by others. The US Supreme Court granted certiorari to review the 11th Circuit's decision. Decision below: Jackson v. Birmingham Board of Education (11th Cir 10/21/2002). [Briefs and argument transcripts]
A lot of organizations have filed amicus briefs in support of Mr. Jackson: the United States government, the NEA, AAUP, and a whole bunch of sports organizations. Trouble is they don't get to vote; only the Justices do.
The employer's argument is simple: Title IX's language prohibits discrimination but does not prohibit retaliation. Administrative regulation that seem to support Jackson are not entitled to deference because there is no ambiguity in the statute. Jackson has no standing under the regulations as they are written. And Jackson's case is controlled by Alexander v. Sandoval (US Supreme Court 04/24/2001), which held that there is no private right of action for violation of disparate impact regulations promulgated under Title VI.
Jackson's argument is a bit more complex: Although Title IX does not expressly prohibit retaliation, retaliation is included in the concept of "discrimination." Administrative regulations adopted by the Department of Education and the Department of Justice prohibit retaliation against a person because that person has filed a sex discrimination complaint. Neither Title IX itself nor the regulations makes a distinction on the basis of whether the underlying discrimination that is complained about was directed at the complainant (here, Jackson) or someone else (here, the girls' basketball team). Alexander v. Sandoval has no application because it was limited to the question of whether Title VI created a private action to enforce disparate impact regulations.
My sense is that the Supreme Court is reluctant to imply causes of action into statutes and regulations. Their job is to carry out the will of Congress, whether or not the outcome is one they like. The regulations prohibit discrimination (which fairly can include retaliation) "because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this part." One problem for Jackson's side is that what he did was complain to his supervisors. Other statutes that expressly forbid retaliation typically include two types: "participation" (which the regs cover) and "opposition" (which the regs do not cover). Jackson's fact pattern does not seem to fit the regulation. In addition, there is the problem of whether the regulations go beyond the bounds of the statute in the first place.
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One non-pretextual reason is enough
January 14, 2005 by Ross Runkel at LawMemo
In Dept of Transportation v. Commn on Human Rights [full text pdf] (Connecticut 01/11/2005) an employee filed a complaint with the State's Commission on Human Rights and Opportunities, alleging race and national origin discrimination (failure to promote). The Commission found that the employer's two proffered legitimate non-discriminatory reasons were pretextual. The employer appealed to the trial court, which found that one of the employer's proffered reasons (the employee's failure to obtain a professional engineer's license) justified the employer's failure to promote. The trial court therefore rejected one of the Commission's two findings of pretext but sustained the other. The Connecticut Supreme Court reversed. Because the employee's failure to obtain a license was a non-pretextual legitimate non-discriminatory reason for the employer's decision not to promote the employee, the employer was entitled to judgment s a matter of law. The court agreed, and reversed.
The trial court relied on Russell v. Acme-Evans Co., 51 F.3d 64 (7th Cir 1995), which stated "[t]here may be cases in which the multiple grounds offered by the [employer] for the adverse action of which the [complainant] complains are so intertwined, or the pretextual character of one of them so fishy and suspicious, that the [complainant] could [prevail]." The Supreme Court concluded that Russell was inapposite, however, since the employee's failure to obtain an engineering license was an "absolute bar to his promotion, and, therefore, served as an independent, nonpretextual reason for the department's decision not to promote him .... There is no likelihood of any interrelationship between any pretextual and nonpretextual reasons for the department's adverse employment decision."
This case is correct. And obviously so. Then why mention it in a blog? Well, there just happens to be a bit of confusion about how this works. Everyone can recite the formula from McDonnell Douglas: First the plaintiff-employee sets out a prima facie case (and here we'll omit the details), and that shifts the burden of production to the defendant-employer to show that it had a legitimate, non-discriminatory reason for its action. If both take place, then the burden (of production and persuasion) shifts back to the employee to show that the articulated reason was actually a pretext for race discrimination.
A bit of confusion arises when the employer has demonstrated two or more reasons. Does the plaintiff have to knock them all down? Usually the answer is yes. This is because if the employer has shown one non-pretextual reason for its action, then the employer has shown that it had a legitimate reason. Plaintiffs should demand that the employer demonstrate that the same decision would have been made in any event. See Desert Palace v. Costa [full text] (US Supreme Court 06/09/2003). That might be a bit harder for the employer to prove.
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Get automatic updates
January 11, 2005 by Ross Runkel at LawMemo
Get automatic updates whenever there is something new on the LawMemo Employment Law Blog:
The old way: Use your web browser to come to this blog from time to time. Even include it as one of your "favorites."
The new way: Let RSS technology send updates to your computer automatically. You don't need to hunt them down.
Tools you need: a news reader or "RSS aggregator" which is a program on your personal computer, usually available at no cost, easy to download, and easy to use.
The news reader knows whenever something is added to the Blog or to any other source you select such as New York Times Headlines.
I like SharpReader and there are many others.
Your benefits: Whenever I update the Blog, your news reader will know it. The update will come to you, and you won't need to chase it down.
What's that 
button?
If you left-click on the button, you will see boring computer-programmer stuff.
After you get your news reader, then right-click on the button, choose "Copy Shortcut," and paste into your news reader.
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