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Statute means the exact opposite of what it says
January 28, 2006 by Ross Runkel at LawMemo
"Not less" means "not more." A statute's clear text means the opposite of what it says.
The federal Class Action Fairness Act (CAFA) allows a party to remove certain state-court class-action cases to federal court. Once removed, it is typical that there will be a motion to remand to state court. However the federal trial court rules, that ruling is appealable "not less than 7 days after entry of the order." There are now two federal Circuit courts that have decided that "not less than 7 days after" actual means the opposite: "not more than 7 days after."
A union and 15 employees sued the employer in state court for violation of California's meal and rest period laws. The employer removed the action to federal court, on the basis of (among other things) "class action" or "mass action" diversity jurisdiction under the Class Action Fairness Act (CAFA). The plaintiffs moved to remand the action to state court, but the trial court denied the motion on the basis that class action diversity jurisdiction existed. The plaintiffs appealed that order, and the employer moved to dismiss. The 9th Circuit denied the motion. Amalgamated Transit Union v. Laidlaw Transit (9th Cir 01/26/2006).
28 USC Section 1453(c)(1) of CAFA provides that "...a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the State court from which it was removed if application is made to the court of appeals not less than 7 days after entry of the order."
The 9th Circuit held that "Federal Rule of Appellate Procedure [FRAP] 5 governs the initiation of such appeals, and ... the petition for permission to take an appeal must be filed not more than seven court days after the district court's order."
The court noted that although Section 1453(c)(1) provides that an application may be made "not less" than 7 days after entry of the order, it should be read as requiring that an application be made "not more" than 7 days after entry of the order. The court agreed with the 10th Circuit's determination that inclusion of the phrase "not less" in Section 1453(c)(1) was a typographical error (Pritchett v. Office Depot, Inc., 420 F.3d 1090 (10th Cir 2005)).
The court also concluded that "because the statute does not specify the deadline as calendar days, we construe the seven days as court days, thereby excluding intermediate weekends and holidays."
The court ultimately denied the employer's motion to dismiss the appeal, stating "we construe the timely notice of appeal and the late petition for permission to appeal as one timely petition satisfying the requirements of FRAP"
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If you wanted a lie detector test, then don't complain
January 22, 2006 by Ross Runkel at LawMemo
Don't ask your employer to give you a polygraph test and then later claim that giving the test violated the federal Employee Polygraph Protection Act (EPPA).
That's basically what Gary Lee Watson did.
When Watson was discharged for allegedly stealing from the employer, his union suggested to the employer that Watson be returned to his job on the condition that he successfully pass a polygraph test. The employer agreed.
Later Watson sued both his employer and his union claiming a violation of the EPPA, but the courts threw out the suit.
The EPPA provides that (subject to certain exceptions) an employer may not "directly or indirectly ... require, request, suggest, or cause any employee or prospective employee to take or submit to any lie detector test." 29 USC Section 2002(1).
The 11th Circuit held that "when [a] ... polygraph test ... [is] offered to an employee pursuant to a request ... by the employee or his or her agent in order to benefit the employee by providing an opportunity to prove his or her innocence [of a suspected property crime against the employer], then the employer has not violated Section 2002(1)." Watson v. Drummond Co (11th Cir 01/20/2006)
The court also concluded that the union was not an "employer" under the EPPA.
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Internet Job Applicant Recordkeeping Rule
January 19, 2006 by Ross Runkel at LawMemo
The US Department of Labor has officially adopted new record-keeping rules for federal contractors. The rules deal with job applicants who apply via the internet. There is now a handy question-and-answer series posted on the DOL web site.
All of this is brought to you by DOL's Office of Federal Contract Compliance Programs.
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NLRB policy changes arriving soon
January 19, 2006 by Ross Runkel at LawMemo
The NLRB is political. There! I said it.
On major policy issues, expect the Board to split 3-2. Three Republicans vs. two Democrats. This is the way things have been for decades, with the only difference being which political party was in control.
Now that the President has made some recess appointments, the Board is at its full strength of five Members.
Already we've seen these big changes in NLRB policy:
- Non-union employees do not have Weingarten rights.
- Graduate student assistants are not "employees" under the National Labor Relations Act.
- Temporary employees are excluded from a unit of permanent employees unless all parties consent.
- Threats of plant closure will not be presumed disseminated.
I'm expecting these changes during 2006:
- Return to the rule that an employer can withdraw recognition from a union if the employer has a good-faith uncertainty as to the union’s majority status.
- New standards in "salting" cases.
- Medical "house staff" will not be "employees."
- Less use of mail ballots.
- Dispatchers could be classified as "supervisors."
More discussion: NLRB Reversals During the Bush Administration.
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$63.8 million age discrimination verdict: in the top 10
January 16, 2006 by Ross Runkel at LawMemo
Any employment discrimination law suit is going to be expensive. Even if the employer wins, there will be attorney fees, lost productivity, anguish, publicity.
Once in a while we see some pretty large verdicts.
The Big Whopper for 2005: An age discrimination suit that brought a verdict of $63.8 million.
Lawyers Weekly USA included this case in its Top 10 for 2005: Private Jet Pilot Wins $64 Million For Age Discrimination.
I read about it earlier in a post at Jottings of an Employer's Lawyer: Even By California Standards -- $63.8 MDV Is a High Flyer.
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Employment Law Blog birthday
January 15, 2006 by Ross Runkel at LawMemo
Happy Birthday.
Ross' Employment Law Blog is now one year old.
Within a few weeks I started Ross' Arbitration Blog. Later I began using the blogging software to add new sections (not blogs exactly) to the LawMemo web site:
- Arbitration Law Memo
- NLRB Law Memo
- Employment Law 101
- Ross' Employment Law Reviews (articles, books, courses)
I am grateful to a lot of people for the success of these projects:
- Layne, my wife, who is always encouraging whenever I start another "foolish" project.
- My readers, who keep coming back.
- A long list of fellow bloggers who have been unfailing in their support and encouragement.
- Six Apart, who makes software that works (I've used TypePad, and now use Moveable Type) for a good price.
- Google, who provides an awesome search engine and whose AdSense helps pay the bills.
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Arbaugh v. Y & H Corp argument
January 11, 2006 by Ross Runkel at LawMemo
SCOTUSblog has an extended discussion of the ins and outs of the arguments in Arbaugh v. Y & H Corp, where the question is whether Title VII's 15-employee threshold is a matter of federal court jurisdiction or merely another element going to the merits. Tomorrow's Argument in Arbaugh v. Y & H Corporation.
Here's just one paragraph:
As an Amicus Curiae supporting the petitioner, the United States emphasizes, among other arguments, that neither Y & H nor the circuit courts holding the fifteen-employee requirement to be jurisdictional had provided a persuasive reason for why § 701(b) should be thought to limit the jurisdiction of the federal courts. The United States critiques each of the four arguments offered for such a holding, including the Third Circuit's argument under the canon of avoidance (notably, even the Third Circuit rejected this argument after outlining it).
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Is Title VII 15-employee threshold jurisdictional?
January 10, 2006 by Ross Runkel at LawMemo
I don't see how Title VII's definition of what "employer" means can be construed as a limitation on federal court jurisdiction. Yet several Circuits have so held, and the US Supreme Court will hear oral arguments tomorrow on this question.
Part of the definition of "employer" is that the employer have 15 or more employees. In this case, size does matter. Smaller employers simply are excluded from the reach of the statute.
Title VII has all sorts of definitions: "employer," "employee," "labor organization," etc. These definitions are designed to identify what entities are within the statute. Title VII's definitions are not written in jurisdictional terms. I'm talking here about the plain language of a statute.
The US Government's brief [see all briefs here] agrees with me. (Wow!)
Jenifer Arbaugh sued in federal court under Title VII and state tort law. After a jury verdict for Arbaugh, the trial court granted summary judgment for the defendants and vacated the verdict because the defendant corporation did not employ 15 or more employees and thus was not an "employer" under Title VII. The 5th Circuit affirmed.
The US Supreme Court granted certiorari to review the 5th Circuit decision.
The 5th Circuit held that Title VII's 15-employee threshold determines federal court subject matter jurisdiction, and is not merely a matter going to the merits of a Title VII claim.
If this is jurisdictional, then it can be raised for the first time at any time (even after verdict, or on appeal), and it means that the federal court has zero jurisdiction over the state law claim as well. If it's a matter of the merits, then it has to be raised in a timely manner and decided just like any other factual issue.
The Courts of Appeals are split on this issue. Courts holding it is jurisdictional are the 4th, 6th, 9th, 10th, and 11th Circuits. Courts holding it is non-jurisdictional are the 2nd, 7th, and Federal Circuits.
Arbaugh v. Y & H Corp (Docket No. 04-944)
Oral argument January 11, 2006
Decision below: Arbaugh v. Y & H Corp (5th Cir 08/02/2004)
Briefs: http://www.lawmemo.com/docs/us/arbaugh/
For a related law review article, see Jurisdiction and Merits at Ross' Employment Law Reviews.
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Electronic deadlines at the NLRB
January 09, 2006 by Ross Runkel at LawMemo
Read the Rules. You can file NLRB documents electronically. Your item is due at the "official closing time" of the Board - 5:00 p.m.
Comes now a lawyer who thought things were due by midnight. She figured things out shortly before 5:00 and actually made the filings (exceptions and a brief) at 5:30 and 5:42.
Then she filed a motion to file her documents late. The Board split 2-1 in her favor. WGE Federal Credit Union, 346 NLRB No. 19 (12/30/2005).
The majority said the lawyer was guilty of neglect, but concluded that they should excuse the neglect, noting that the attorney tried mightily, and in good faith, to complete the exceptions in time and, while she missed the deadline by a matter of minutes, no one was prejudiced by the delay.
I have to notice (and wonder about) the fact that it was two Republicans against one Democrat. There are many NLRB policies on which Democrats and Republican predictably disagree. I don't understand this particular division along party lines.
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NLRB recess appointments
January 06, 2006 by Ross Runkel at LawMemo
The President has recess appointed one NLRB Member and a new General Counsel.
Peter N. Kirsanow was appointed to be a Member of the National Labor Relations Board for the remainder of a five-year term expiring August 27, 2008.
Ronald E. Meisburg was appointed to be General Counsel of the National Labor Relations Board.
This bring the Board membership up to four (of a possible five): three Republicans and one Democrat.
The nomination of Democrat Dennis P. Walsh to be a Member of the NLRB is still pending in the Senate.
As the Labor Law Blog has pointed out:
The recess appointment of Kirsanow is significant. With three Republican Members now on the Board (for the first time since December 2004), the Bush Board now has the potential to overrule Clinton-Board precedent. The Board has had a three-Member Republican majority during only approximately two years of President Bush's five years in office.
NLRB Member Peter N. Kirsanow, of Ohio, was a Partner with Benesch Friedlander Coplan & Aronoff, LLP. In addition, he served as a Member of the United States Commission on Civil Rights. Mr. Kirsanow previously served as Senior Legal Counsel for Leaseway Transportation Corporation in Cleveland, Ohio. Prior to that, he served as Labor Counsel for the City of Cleveland. Earlier in his career, Mr. Kirsanow practiced law with Calfee, Halter & Griswold, LLP. He received his bachelor's degree from Cornell University and his JD from Cleveland Marshall College of Law."
This biography from the web site of Benesch Friedlander Coplan & Aronoff, LLP.
Mr. Kirsanow focuses his practice on representing management in employment-related litigation, as well as in contract negotiations, NLRB proceedings, EEO matters, and arbitration. He frequently testifies before and advises members of the U.S. Congress on various employment laws and issues.Mr. Kirsanow formerly served as senior labor counsel of Leaseway Transportation Corp. and labor counsel for the city of Cleveland.
He has extensive experience in public sector employment matters as well as in industries such as heavy manufacturing, trucking, health care, radio and television and employee leasing.
Mr. Kirsanow is past chair of the board of directors of the Center for New Black Leadership, is on the advisory board of the National Center for Public Policy Research and has been an adjunct professor at Cleveland Marshall College of Law.
Mr. Kirsanow was appointed by President Bush to the U.S. Commission on Civil Rights in December 2001.
NLRB General Counsel Ronald E. Meisburg, a Republican, previously served as a Member of the NLRB under a recess appointment made by President Bush on December 26, 2003. That appointment expired December 16, 2004.
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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EEOC at full strength
January 03, 2006 by Ross Runkel at LawMemo
As of today the EEOC is back to full strength of five Members. Christine Griffin was sworn in. EEOC press release.
That's good, but here's my complaint: The NLRB should also have five Members, but the powers that be in the Senate have not seen fit to confirm the President's nominations. In addition, we still await Senate confirmation of a new General Counsel.
As a result, the NLRB is working with only three Members and an Acting General Counsel.
With all due respect to the EEOC, my view is that the NLRB has a greater need for a fully-staffed Board.
The President has made his nominations. Now it's the Senate's turn.
As usual, nobody in Washington listens to me.
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Cintas employees vs. unions
January 01, 2006 by Ross Runkel at LawMemo
Unions use car license numbers to get addresses of non-union employees they want to talk to. A Wall Street Journal article and posts by Workplace Prof Blog and Thoughts From a Management Lawyer have popularized a statutory privacy issue I talked about on June 9, 2005 (Privacy vs. union organizing) which I repeat here:
A statutory right to privacy may block a traditional union organizing tool. Union organizers often need a list of employee names and addresses so they can visit the employees at home and talk them into joining. One way to get a list is to take down license plate numbers in the employer's parking lot and run them through the state motor vehicle records.
This practice probably is unlawful due to the federal Driver's Privacy Protection Act of 1994 (DPPA) which forbids individuals from obtaining and using personal information from a motor vehicle record for any purpose other than purposes permitted by the DPPA. The minimum statutory damages are $2,500.
When UNITE tried to organize an employer, some employees sued under DPPA. And now the federal district court for the Eastern District of Pennsylvania has certified a class of plaintiffs consisting of:
All persons whose license plate numbers were used by UNITE, directly or indirectly, individually or jointly, as part of an effort to knowingly obtain, use and/or disclose personal information from motor vehicle records between July 1, 2002 and August 2, 2004.
The case is Pichler v. Unite, and the 75-page opinion is [here].
My view: This case probably spells the end of this method for getting names and addresses of employees.
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