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Chamber of Commerce v. Lockyer: California wins
September 21, 2006 by Ross Runkel at LawMemo
My prediction came true. California can prohibit employers from using state-grant funds "to assist, promote, or deter union organizing."
Chamber Of Commerce Of The US v. Lockyer (9th Cir 09/21/2006) (en banc) (12-3).
California ties a string to state-funds grants over $10,000: Private employers can't use the money "to assist, promote, or deter union organizing."
A 9th Circuit panel had ruled in April 2004 that the NLRA preempted the statute, but the 15-member en banc court thought otherwise.
California Gov't Code Section 16645.2(a) bars private employers who are "recipient[s] of a grant of state funds" from "us[ing] the funds to assist, promote, or deter union organizing." Similarly, Section 16645.7(a) bars "a private employer receiving state funds in excess of [$10,000] in any calendar year on account of its participation in a state program" from using such funds "to assist, promote, or deter union organizing."
Sitting en banc, the 9th Circuit held that these two sections (enacted as part of Assembly Bill 1889 (AB1889)) "do not undermine federal labor policy, are not preempted by the NLRA [National Labor Relations Act] and do not violate the First Amendment." The court reasoned that 1) these sections are not preempted by the NLRA under either Machinists preemption (Lodge 76, International Ass'n of Machinists v. Wisconsin Employment Relations Commission, 427 US 132 (1976)) or Garmon preemption (San Diego Building Trades Council v. Garmon, 359 US 236 (1959)); and 2) these sections do not violate the 1st Amendment, because (consistent with Rust v. Sullivan, 500 US 173 (1991)) they, "like various federal acts, require[ ] only that those who accept government grant and program funds use them for the purpose for which they were given."
Here's what I said in May 2005:
My view: The original panel decision was well written, but probably wrong.
Machinists preemption is designed to keep states from regulating certain activity that Congress wants to be unregulated by anybody. The relevant activity here is an employer (or a union) expressing its opinion either for or against union organization. That's NLRA Section 8(c).
California law does not limit employers' ability to express their opinions; it merely says they can't spend state money to do so. Whatever employers could say before the statute they can still say. It's just that state money must be spent on other things. Hence, in my view, no real interference with Congress's policies, and no preemption.
Stephen F. Befort (law prof at University of Minnesota Law School) and Bryan N. Smith have written a great article about this case - At the Cutting Edge of Labor Law Preemption: A Critique of Chamber of Commerce v. Lockyer, with lots of background and lots of opinions. Oh, yes, they agree with me. Or I agree with them.
Ledbetter v. Goodyear brief for petitioner
September 07, 2006 by Ross Runkel at LawMemo
The petitioner's brief was filed in the US Supreme Court today in Ledbetter v. Goodyear Tire & Rubber.
The issue is "Whether and under what circumstances a plaintiff may bring an action under Title VII of the Civil Rights Act of 1964 alleging illegal pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period."
Petitioner's Brief
Joint Appendix
Ledbetter claimed her employer paid her a smaller salary than it paid male co-workers because of her sex. Her periodic paychecks were based on annual salary reviews. A jury awarded damages to Ledbetter based on a series of salary decisions going back 19 years. The 11th Circuit reversed and ordered that Ledbetter's complaint be dismissed.
The 11th Circuit held that her claim was time barred because she could not prove intentional discrimination in either (1) the one decision during the limitations period or (2) the last decision preceding the limitation period.
The 11th Circuit said: "We conclude that in the search for an improperly motivated, affirmative decision directly affecting an employee's pay, the employee may reach outside the limitations period created by her EEOC charge no further than the last such decision immediately preceding the start of the limitations period. We do not hold that an employee may reach back even that far; what we hold is that she may reach no further.
The US Supreme Court will review the 11th Circuit decision during its 2006 Term which begins in October.
Thanks to SCOTUSblog for the brief.
Ministerial exception flip-flop in Petruska v. Gannon University
September 07, 2006 by Ross Runkel at LawMemo
The ministerial exception applies to some employment law claims, but not all, according to yesterday's decision in Petruska v. Gannon University (3rd Cir 09/06/2006).
A previous opinion in this case (05/24/2006) (2-1) had held that the ministerial exception would not apply to any of the claims. But the opinion's author had died before it was filed, so the opinion was vacated and a new hearing was ordered.
The new opinion applied the traditional ministerial exception to most of the claims: The court said that the ministerial exception, "a doctrine rooted in the First Amendment," "applies to any claim, the resolution of which would limit a religious institution's right to choose who will perform particular spiritual functions."
Facts: During a restructuring, a Catholic university demoted Petruska from her position as chaplain. Her suit alleged (1) demotion because of her sex and in retaliation for her opposition to sexual harassment in violation of Title VII, (2) civil conspiracy, (3) negligent supervision and retention, (4) fraudulent misrepresentation, and (5) breach of contract.
Here's how the court ruled on each claim:
- Demotion because of sex and in retaliation for her opposition to sexual harassment in violation of Title VII
The court said: "Gannon's choice to restructure constituted a decision about who would perform spiritual functions and about how those functions would be divided. Accordingly, application of Title VII's discrimination and retaliation provisions to Gannon's decision to restructure would violate the Free Exercise Clause."
- Civil conspiracy
The court said: "Because the First Amendment protects Gannon's right to restructure - regardless of its reason for doing so - we cannot consider whether the act was unlawful or tortious, and, therefore, these claims must be dismissed."
- Negligent supervision and retention
The court said: "Because the First Amendment protects Gannon's right to restructure - regardless of its reason for doing so - we cannot consider whether the act was unlawful or tortious, and, therefore, these claims must be dismissed."
- Fraudulent misrepresentation
The court said: "The resolution of Petruska's fraudulent misrepresentation claim does not turn on the lawfulness of the decision to restructure, but rather on the truth or falsity of the assurances that she would be evaluated on her merits .... * * * The state's prohibition against fraud does not infringe upon Gannon's freedom to select its ministers ...."
- Breach of contract
The court said: "Application of state contract law does not involve government-imposed limits on Gannon's right to select its ministers: Unlike the duties under Title VII and state tort law, contractual obligations are entirely voluntary."
Religious objection to unions
September 02, 2006 by Ross Runkel at LawMemo
An employee doesn't want to support a union, on religious grounds, because the union supports abortion and same-sex marriage. The employee doesn't belong to any church that historically opposes unions. Do the union and employer have to accommodate this "non-church" sincere religious objection?
Title VII requires employers and unions to reasonably accommodate employees' religious beliefs. Those who have religious objections to unions and compulsoty payment of union dues can be accommodated by allowing an equivalent contribution to charity.
The twist: What if the employee does not belong to one of the churches that historically has objected to unions?
It shouldn't matter. "Religion" is not limited to those individuals who belong to certain churches (or to any church).
Yesterday, EEOC announced a big settlement involving these issues.
From the EEOC press release Justice Department And Equal Employment Opportunity Commission Settle Ohio Religious Discrimination Lawsuits:
WASHINGTON – The Justice Department and the U.S. Equal Employment Opportunity Commission (EEOC) today announced a consent decree to resolve religious discrimination lawsuits filed against the state of Ohio; the Ohio Environmental Protection Agency; the Ohio Department of Administrative Services; and the Ohio Civil Service Employees Association, AFSCME, Local 11, AFL-CIO. The lawsuits alleged that the state defendants and the union violated federal employment discrimination laws by failing to respect the rights of employees with religious objections to supporting the union.The union and the state defendants permit employees who are members of churches that historically have opposed unionization to pay an amount equivalent to their dues to charity. However, they refuse to allow employees who do not belong to such churches, but nonetheless have sincere religious objections to supporting the union, to make a charitable donation instead of paying dues or fees. The suit was prompted by the case of a man who objected to associating with or supporting the union on religious grounds because of its support of abortion and same-sex marriage.
The Justice Department's lawsuit under Title VII of the Civil Rights Act of 1964 against the state defendants, and a Title VII suit by the EEOC against the union, were consolidated by the U.S. District Court for the Southern District of Ohio. If approved by the court, the proposed consent decree would require religious accommodations of state employees with sincere religious objections to associating with or financially supporting unions, whether or not they are members and adherents of a particular religion.
“The law protects the religious observances, practices, and beliefs of all Americans,” said Wan J. Kim, Assistant Attorney General for the Civil Rights Division. “I applaud the Ohio state officials for working with the Department to resolve this case.”
The vigorous enforcement of Title VII against public employers is a priority of the Justice Department’s Civil Rights Division. Additional information about the Civil Rights Division is available at http://www.usdoj.gov/crt.
EEOC Regional Attorney Jacqueline H. McNair said, “The resolution of this litigation will protect approximately 37,000 public employees covered by the State of Ohio’s collective bargaining agreement with the Ohio Civil Service Employees Association.”
Public employees in Ohio who are not covered by this consent decree may contact the EEOC's Cleveland Field Office at (216) 522-2001 for information about their rights regarding substituting charitable contributions for dues and fees as a religious accommodation.
Big Case #7 - ATU v. Laidlaw Transit
September 01, 2006 by Ross Runkel at LawMemo
#7 in the Big Cases Series for 2006: Amalgamated Transit Union v. Laidlaw Transit, 435 F.3d 1140 (9th Cir 01/26/2006), en banc rehearing denied with opinions, 448 F.3d 1092 (05/22/2006)
Facts: A union and employees filed a class action in state court alleging state law claims, and the employer removed to federal court under the Class Action Fairness Act (CAFA). The federal court denied plaintiffs' motion to remand to state court, and plaintiffs appealed.
Statute: 28 USC § 1453(c)(1): "... 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."
Held: Although § 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.
Key quote: "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."
On motion for rehearing: Six judges filed a dissent arguing that a court has no business rewriting the statute merely because the way it was actually written is "illogical."
Previous case: Pritchett v. Office Depot, Inc., 420 F.3d 1090 (10th Cir 2005) held that "not less" was a typographical error.
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