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Ross' Employment Law Blog


A blog for employment lawyers, human resources professionals, and union representatives.

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February 28, 2005

Whistleblowing Assistant DA gets to US Supreme Court

The Supreme Court has another chance to tell the 9th Circuit how the 1st amendment works for public employees. Assistant DA Richard Ceballos sent a memo to his supervisor alleging that a sheriff deputy lied on a search warrant. Ceballos later filed suit claiming his superiors retaliated against him for this.

The last time the Supreme Court had a public employee 1st amendment case from the 9th Circuit the Justices reversed the 9th Circuit without even hearing oral arguments. Ouch. That was San Diego v. Roe (12/06/2004) [full text pdf] in which a police officer was discharged for selling videos of himself masturbating. The 9th Circuit actually thought that was protected by the US constitution. The Supreme Court's per curiam decision (a rare item) said it was "not a close case."

Now comes Garcetti v. Ceballos - certiorari granted February 28, 2005. [9th Circuit decision pdf] The 9th Circuit went through the drill of asking (1) whether Ceballos' speech was a matter of public concern [YES] and, if so, (2) whether his interests outweighed the public employer's interest [YES].

The real question? Whether his speech lacks constitutional protection because it was uttered in the course of carrying out his employment obligations.

9th Circuit Judge Diarmuid O'Scannlain, in a concurring opinion, argued that the 9th Circuit's jurisprudence in this area is flat wrong. (He couldn't know that the Roe case would be summarily reversed.) He traces it all to Roth v. Veteran's Administration, 856 F.2d 1401 (9th Cir 1988), in which the court said that when a public employee speaks on matters of public importance, that speech automatically comes within the definition of a matter of public concern.

My view: The 9th Circuit's Roe decision was off the wall. Its Ceballos decision seems to lose track of what the 1st amendment is for. It is not to protect employees in the conduct of their day-to-day employment duties. Perhaps there should be laws to protect assistant DAs from getting demoted when they tell the boss that a police officer rigged a search warrant. I could vote for that. But a constitutional right? I don't think so.

Posted February 28, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

Supreme Court resources

I like to keep track of US Supreme Court labor and employment law cases. Here are some resources I suggest:

Article on recently decided and pending employment cases: Supreme Court Review: Current Employment Law Cases.

Article on employment cases during the 2003-2004 term of court: U.S. Supreme Court Employment Law Decisions: The Good, The Bad, And The Ugly.

List of pending cases.

Briefs filed in pending cases.

Transcripts of oral arguments in pending cases.

Recent decisions [Official web site] [Cornell's LII web site]

email bulletins [Cornell] [Willamette Law Online]

SCOTUSblog

Last but not least: Employment Law Memo sends email reports on Supreme Court labor and employment decisions on the same day they are decided. [Try it]

Posted February 28, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

February 26, 2005

Automatic Updates Made Easy

The techno-geeks have an easy way to learn how to let technology bring LawMemo Employment Law Blog to your desktop.


  • Spend 5 minutes watching a screencast (Flash movie) called "Using RSS 101." [Go here]

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  • Alex speaks your language.

  • He doesn't get technical. He doesn't even make you learn what "RSS" is. That's nice.

  • I watched and listened to this movie today, and highly recommend it.

Thanks to Kevin O'Keefe for letting me know about this. Here's a little bit about Kevin:


  • Has a blog on blogs for lawyers and law firms. [Go here]

  • Is a lawyer-marketer-geek who runs an outfit called LexBlog. [Go here]

  • Can help you build a blog for your law firm. You really should have one.

  • Can show you a better way to deliver your client alerts to your clients and prospective clients.

Posted February 26, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

February 25, 2005

Hotel unions escape NLRB charge

HERE UNITE Locals 2 and 11 are continuing their boycott against hotels in San Francisco and Los Angeles. One big sticking point in negotiations has been the unions' demands for two year contracts. Although there is a history of five and six year contracts, the two-year proposals were designed to coordinate expiration dates with major cities such as New York, Chicago, Boston, Honolulu, and Toronto.

The hotels went to the NLRB and charged that the locals' demands were unlawful. The theory: The unions were attempting to broaden the scope of their separate bargaining units and merge them into a single national bargaining unit.

The NLRB's Regional Directors sought advice from headquarters, and the General Counsel (essentially the NLRB's prosecuting office) decided the unions acted lawfully and the charges should be dismissed.

The General Counsel's Advice Memo is chock full of quotes from union officials who obviously would like to have some kind of nationwide bargaining. But the law is pretty clear. The fact that two locals get together and coordinate their demands is not illegal. So long as the locals bargain separately and bargain only about matters in their own bargaining units, there is no problem. Neither local ever asked to bargain on a national level.

The expiration date of a contract is a mandatory subject of bargaining (that is, you must bargain about it but you are not required to agree to it). Demanding a uniform expiration date relates to each local's bargaining unit because it effects each local's economic leverage. And that's exactly why the employers resist it.

So the trip to the NLRB was a diversion. And speaking of diversions, a number of conventions are re-scheduling for other venues.

Keep up on the exciting world of NLRB Advice Memos by reading NLRB Law Memo, a free weekly email from LawMemo.Com [Get it]

Posted February 25, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

February 22, 2005

Are walking and waiting time compensable?

The US Supreme Court granted certiorari in two cases that will decide whether time spent walking from the locker room to the work area, after donning special protective gear, is compensable under the FLSA.

IBP, Inc. v. Alvarez and Tum v. Barber Foods.

Employees in meat packing plants wear a lot of protective gear. For much of it, the employer and the government require that it be worn. Employees spend time donning and doffing this gear. Both the 1st and 9th Circuits agree they must be paid for that time.

But what about the time spent walking from the locker room to the place where the real work begins, and time spent waiting to put this gear away? The circuit courts split, with the 9th Circuit saying it must be compensated, and the 1st Circuit saying it need not be compensated.

It all has to do with whether this is within the FLSA's "changing clothes" exception, and whether the time is excluded by the Portal-to-Portal Act because it is preliminary or postliminary activity.

For the lower court decisions:
Alvarez v. IBP, Inc. (9th Cir 08/05/2003) [Full text pdf]
Tum v. Barber Foods (1st Cir 03/10/2004) [Full text]

Posted February 22, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

February 21, 2005

Sexual harassment and the church

It looks like the 9th Circuit is inviting the Supreme Court to review its recent decision on the interplay between Title VII and the 1st amendment religion clauses. An associate pastor sued her church/employer claiming that her supervisor sexually harassed her, and then she suffered retaliation for filing an EEOC charge, and then she got discharged.

The church argued that the 1st amendment protected it against such suits. The 9th Circuit allowed the retaliation and harassment claims to go forward, but ordered dismissal of any claims for discharge. The court denied a rehearing en banc, and ten judges wrote five opinions.

Elvig v. Calvin Presbyterian Church
Original panel decision (9th Cir 07/23/2004) [Full text pdf]
Order denying rehearing (9th Cir 02/11/2005) [Full text pdf]

The heart of the controversy is the court's formula for dealing with church-minister employment sexual harassment. It goes like this:

First, the 1st amendment overrides Title VII when a church engages in sex discrimination when it hires, fires, or assigns duties to its ministers. That's called the ministerial exception.
Second, Title VII controls when a church engages in sexual harassment of, or retaliation against, its ministers. Therefore, if a church harasses and then discharges a minister because she is a woman, the minister can recover damages for the harassment but not for the discharge.

The 9th Circuit's position is troubling.

Here's my view: Although we attach the label "harassment" to certain kinds of discrimination, that label has no legal significance in Title VII analysis or in constitutional analysis. Sexual harassment is no more or less than a subset of on-the-job sexual discrimination. It is sex-differentiated conduct that changes the employee's terms and conditions of employment, and therefore is no different from assignments to different duties or establishing different rates of pay. These are unlawful under Title VII, but churches should be immune from suit when its ministers are plaintiffs.

There is general agreement that the 1st amendment does not allow Title VII to interfere with the church as to its decisions to hire, fire, and assign duties to its ministers. This protects the relationship between the church and its ministers from government regulation. But some 9th Circuit judges say that harassment suits are analogous to suits under state tort law when a parishioner is sexually abused by a minister. What? That's an analogy?

Elvig's case is an especially good one for 1st amendment protection. Elvig's complaint alleged that her supervisor leered at her and made unwelcome remarks. Government regulation of that activity would involve policing the demeanor (leering) of church ministers and the expression of their opinions (unwelcome remarks). As much as I dislike on-the-job sexual harassment, I think the 1st amendment should protect churches from government regulation of the day-to-day demeanor and expression of one minister to another.

Retaliation for filing an EEOC charge (as opposed to retaliation for complaining within the church) could be a different matter. It could be that there is a "compelling governmental interest" in protecting citizens who use the administrative forum (EEOC) established by Congress.

Posted February 21, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

February 14, 2005

Employer regarded alcoholic as being disabled

If 10 percent of the population is alcoholic, that's enough to populate the nation's top 15 cities. And a lot of these folks are in the work force.

Are alcoholics "disabled" under the ADA? Some are and some are not. It's an individual thing. To be disabled, the individual must (1) have a physical or mental impairment that (2) substantially limits (3) one or more of the major life activities of that individual. Under that definition, a huge number of alcoholics are not disabled. They may have an impairment, but that impairment does not substantially limit a major life activity. They can walk, see, hear, work, and so on. Maybe not perfectly, and maybe not all the time, but enough so they are not "substantially limited."

It is noteworthy that the ADA protects not only those who are actually disabled, but also those who are "regarded as" being disabled. That means the employer regarded the employee as fitting all three of the numbered items above.

That was one of the issues in Moorer v. Baptist Memorial Health Care System [Full text pdf] (6th Cir 02/11/2005), involving the discharge of a hospital administrator. Did the employer regard William Moorer as being disabled? After a bench trial, the trial court answered "yes," and the 6th Circuit affirmed. The court's answer to that question is quite revealing both as to the employer's thought process and the trial judge's thought process.

First, Moorer's supervisor clearly believed Moorer was an alcoholic. The bigger question was whether the supervisor perceived Moorer as being substantially limited in his ability to work, that is, unable to work in a broad class of jobs or a broad class of jobs (not just the specific job he had).

Second, the trial court found that the supervisor believed that alcoholism was the root cause of Moorer's inability to perform his current job - hospital administrator. Of course that established only a belief that there was an inability to perform one job.

Third, the court used interesting logic to reach the conclusion that the employer regarded Moorer as unable to perform a broad range of jobs. The trial court found substantial evidence that the employer "concocted pretextual justifications" for firing Moorer. The supervisor testified that she relied on a written report from a fire marshal plus a written report from another government agency, reports written after the discharge took place. The supervisor testified that she relied on a letter from the chief of the medical staff at one of Moorer's hospitals, but Moorer's name was not mentioned in the letter, and the author testified that he did not intend the letter to be critical of Moorer's administration of the hospital.

So there was pretext, but there was one more step in the logic. The trial judge decided that by showing that the employer perceived Moorer as being unable to perform managerial work for the employer, that indicated that the employer perceived him as unable to perform a broad class of work. As the 6th Circuit put it, the fact that the employer "believed Moorer's alcoholism made him unable to perform his hospital administrator job, which required a broad range of managerial skills, permits the reasonable inference that [the employer] believed that Moorer's alcoholism rendered him incapable of performing a substantial number of managerial jobs."

This case shows that there is plenty of room for education about alcoholism and other disabilities.

Posted February 14, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

February 10, 2005

Romantically motivated favoritism is not sex discrimination

Yesterday's decision in Preston v. Wisconsin Health Fund [Full text pdf] (7th Cir 02/09/2005) demonstrates that Title VII wasn't designed to keep supervisors from playing job favoritism with the objects of their romantic interest. It also demonstrates that Judge Posner's decisions continue to be interesting reading.

Jay Preston, a male, claimed he lost his job to a woman who was romantically involved with his supervisor. He claimed that the loss of his job was the result of his supervisor's favoritism toward the replacement, which resulted from the romantic relationship, and that this constituted gender discrimination in violation of Title VII. He also claimed that the two conspired to tortiously interfere with his contractual relationship with his employer. The 7th Circuit affirmed summary judgment for the employer.

1) With respect to the Title VII claim, the court concluded that "[a] male executive's romantically motivated favoritism toward a female subordinate is not sex discrimination even when it disadvantages a male competitor of the woman." The court observed that "[t]he effect on the composition of the workplace is likely to be nil, especially since the disadvantaged competitor is as likely to be another woman as a man .... Neither in purpose nor in consequence can favoritism resulting from a personal relationship be equated to sex discrimination."

2) With respect to the tortious interference claim, the court observed, "to avoid converting employment at will into employment terminable only for cause, the cases require the plaintiff to prove that the defendant had an improper motive." The court continued, "unless courts are to be overwhelmed by suits by disgruntled former employees against corporate officers, more is required than that a discharge be tainted by some private motive, such as greed, personal dislike, or, in this case perhaps, a personal attachment to a competing employee .... The plaintiff must prove both that the employer did not benefit from the defendant's act and that the act was independently tortious, for example as fraud or defamation." The court concluded that Preston failed to satisfy this standard.

Posted February 10, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

February 08, 2005

Federal question in underlying dispute supports jurisdiction to hear petition to compel arbitration

I am grateful to David Nagle, chair of LeClair Ryan's Labor & Employment practice group, for pointing out a 4th Circuit decision dealing with the enforcement of arbitration agreements.

Discover Bank v. Vaden [full text pdf] (4th Cir 01/24/2005) is a banking case that should have an impact on employment cases. This is another reminder that the law dealing with enforcement of individual employer-employee arbitration agreements (not involving collective bargaining agreements) is often shaped by cases that have nothing at all to do with employment law.

The bank sued its customer in federal court under Federal Arbitration Act Section 4 to compel arbitration of state law claims that the customer had filed in state court.

The issue was whether the presence of a federal question in the underlying dispute is enough to support subject matter jurisdiction. The 4th Circuit held that it was.

Courts of Appeals are split on the question of whether, in a Section 4 suit, a federal district court has subject matter jurisdiction when the underlying dispute between the parties raises a federal question. One line of authority is that the basis for federal jurisdiction must appear on the face of the arbitration petition itself. That would require that there be some basis for jurisdiction other than the underlying dispute - such as diversity of citizenship or admiralty. The other line of authority (adopted by the 4th Circuit) allows the district court to look through the arbitration petition and "assess whether the overall controversy between the parties 'raises a federal question.'"

This case was included in today's monthly Arbitration Law Memo, an email service provided by LawMemo.Com. [Subscribe]

Posted February 08, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

February 02, 2005

NLRB continues to watch non-union employers

Non-Union employers took pleasure in the NLRB's decision that Weingarten rights do not apply in the non-union workplace. IBM Corp., 341 NLRB No. 148 (06/09/2004).

This shift in NLRB policy should not be taken as a signal that the NLRB is no longer paying attention to the non-union workplace.

Case in point: The first NLRB decision of 2005, National Specialties Installations, 344 NLRB No. 2 (01/18/2005). Two employees went to the president of the company to complain that their paychecks had bounced, and the president fired them. This is a classic example of a Section 8(a)(1) violation. The employees were engaged in "concerted activity" and they were complaining about "terms and conditions of employment." That was the reason they got fired. End of discussion.

The NLRB issued its usual order in such cases, to reinstate the employees with back pay. The cost to the employer? All the expenses of litigation plus paying two employees who were not performing services while the litigation was going on.

Posted February 02, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

February 01, 2005

Does disparate impact theory apply in age discrimination cases?

In Smith v. Jackson, Mississippi the US Supreme Court will decide whether the disparate impact theory of proof can be applied in a case arising under the Age Discrimination in Employment Act (ADEA).

Plaintiffs were City police officers and dispatchers over the age of 40 who claimed that the City's performance pay plan granted substantially larger pay increases to employees under age 40. Under the pay plan, employees with five or fewer years of tenure received proportionately greater raises when compared to their former pay than those with more than five years of tenure. Plaintiffs offered statistical proof that average pay increases differed by age and older employees received smaller raises than younger employees. The trial court held that the disparate impact theory could not be used in an ADEA case; the 5th Circuit affirmed [Full text pdf]. The US Supreme Court is reviewing the 5th Circuit decision [Briefs], and heard oral arguments [Transcript pdf] on November 3, 2004.

Circuit courts are split on this issue. Those allowing use of the disparate impact theory are the 2nd, 8th, and 9th. Those not allowing the disparate impact theory are the 1st, 5th, 7th, 10th, and 11th.

It all started with Griggs v. Duke Power, 401 US 424 (1971). The employer required a high school diploma for entry into certain jobs. This requirement disqualified Blacks at a much higher rate than Whites. The US Supreme Court held that once the plaintiffs proved this "disparate impact," then the burden shifted to the employer to justify the practice by showing job relatedness or business necessity.

Griggs was a Title VII case. Smith is an ADEA case. The statutes are similar in one major respect: the primary prohibitory language is virtually identical. Of course, the plaintiffs latch onto that, plus an EEOC regulation that recognizes disparate impact.

On the other hand, the ADEA contains a clause that is similar to the Equal Pay Act (EPA). The ADEA has a specific exception for "where the differentiation is based on reasonable factors other than age" (RFOA), similar to the EPA's exception for "any factor other than sex." The Supreme Court has said there can be no disparate impact claims brought under the EPA, and that was in large part because of the "any factor other than sex" language. This favors the employer's position, and is the backbone of many lower court decisions.

An interesting twist is whether the Older Workers Benefit Protection Act (OWBPA) should be read as making the RFOA an affirmative defense rather than a redefinition of liability. NELA makes a great argument along this line in its amicus brief [brief pdf].

Finally, there is the fact that the Civil Rights Act of 1991 amended Title VII to make clear that disparate impact claims could be brought under Title VII, but made no such amendment to the ADEA. I think that will be irrelevant because the Court should not interpret Congress' non-action as evidence of Congressional intent.

Posted February 01, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

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