Chamber of Commerce v. NLRB (Dist DC 05/14/2012)
Two of the Board's three members voted in favor of adopting the final rule. The third member of the Board, Brian Hayes, did not cast a vote.
As the court put it,
"The NLRB's claim that Hayes was part of the quorum that adopted the final rule, then, is based only on the fact that he was a member of the Board at the time the rule was circulated and thus was sent a notification that it had been called for a vote."]]>"Two members of the Board participated in the decision to adopt the final rule, and two is simply not enough. Member Hayes cannot be counted toward the quorum merely because he held office, and his participation in earlier decisions relating to the drafting of the rule does not suffice. He need not necessarily have voted, but he had to at least show up. At the end of the day, while the Court's decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle."
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Employee Hohnbaum brought a class action claiming violations of California Labor Code Sections 226.7 and 512, and California Industrial Welfare Commission Wage Order No. 5. The trial court granted a motion for class certification. The Court of Appeal reversed, concluding that the trial court erred in granting class certification without first considering the elements of Hohnbaum's claims. The California Supreme Court held that trial courts usually are not required as a matter of law to resolve such threshold disputes over the elements of a claim, but went ahead and resolved some of them anyhow.
(1) Meal breaks.
The most significant issue deals with the employer's duty to provide meal breaks. The court said,
"We conclude an employer's obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done." "The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so." "The employer is not obligated to police meal breaks and ensure no work thereafter is performed."
(2) Meal break timing.
The court concluded that,
"absent waiver, section 512 requires a first meal period no later than the end of an employee's fifth hour of work, and a second meal period no later than the end of an employee's 10th hour of work," and that "Wage Order No. 5 does not impose additional timing requirements."
(3) Rest breaks.
Wage Order No. 5 is interpreted as meaning that "an employee would receive no rest break time for shifts of two hours or less, 10 minutes for shifts lasting more than two hours up to six hours, 20 minutes for shifts lasting more than six hours up to 10 hours, and so on." The court rejected the idea that employees are entitled to a rest period before any meal period.
(4) Class certification.
The court remanded the certification of the meal break subclass, upheld certification of a rest break subclass, and rejected certification of an off-the-clock subclass.
]]>Exactly what is the extent of Congress' power under Section 5 of the 14th amendment? "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
There were always two potential extreme answers:
1. The power is limited to regulating conduct that itself violates the 14th amendment.2. The power is expansive, much like the necessary and proper clause.
Law students typically wanted to know the rule that the Court would apply in every case. Something simple. Something predictable.
I always told them that there are nine Justices, and one must understand how each individual Justice sees things, and then count up the votes.
As time went by, most of the Justices adopted the view that Congress could go beyond regulating conduct that itself violates the 14th amendment, provided that there was "congruence and proportionality" between the injury to be prevented or remedied and the means adopted to that end. This, of course, gave the Justices huge individual leeway to determine what was congruent and what was proportional. Not simple. Not predictable.
And so it was with Coleman v. Maryland Court of Appeals (US Supreme Ct 03/20/2012) with the Court splitting up into three opinions: 4-1-4.
Coleman sued his employer, an instrumentality of the State of Maryland, claiming a violation of the Family Medical Leave Act (FMLA) by denying him self-care leave. The Federal District Court dismissed the suit; the 4th Circuit affirmed. The US Supreme Court affirmed (4-1-4).
Four Justices said that in order for Congress to abrogate the states' immunity through the use of Section 5 of the 14th amendment, there must be "a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end ." In Nevada Dept of Human Resources v. Hibbs, 538 US 721 (2003), the Court upheld the portion of the FMLA that provides leave for the care of a spouse, son, daughter, or parent with a serious medical condition. However, the sex-based discrimination identified in the Hibbs case is absent with regard to the self-care provision. There is a lack of congruence and proportionality. The plurality rejected arguments that the self-care provision addresses sex discrimination and sex stereotyping, that it is a necessary adjunct to the family-care provision upheld in Hibbs, and that it helps single parents keep their jobs when they get ill.
Justice Scalia rejected the "congruence and proportionality" approach, saying that (outside of race discrimination) Congress' power under Section 5 of the 14th amendment is limited to regulating conduct that itself violates the 14th amendment.
Four DISSENTING Justices, in applying the "congruence and proportionality" approach, would hold that "the self-care provision ... validly enforces the right to be free from gender discrimination in the workplace."
How many opinions?
Well, technically four. Actually five.
So now everything is clear, right?
A high school student sued the school district and its administrators claiming that he was molested by a counselor. The issue on appeal was whether the district may be vicariously liable for its administrators' negligence. (This was not a claim of vicarious liability for the acts of the counselor, which were outside the scope of her employment).
The California Supreme Court held that the district may be vicariously liable for negligent hiring, retention, and supervision.
The student alleged that the administrators knew or should have known of the counselor's past - and continuing - unlawful conduct with minors, and that they failed to provide reasonable care in investigating and supervising the counselor.
Public entity tort liability in California is exclusively statutory, and Gov. Code Section 815.2, as paraphrased by the court, provides that
"the general rule is that an employee of a public entity is liable for his torts to the same extent as a private person ... and the public entity is vicariously liable for any injury which its employee causes ... to the same extent as a private employer."
The court said that
My view: Pretty simple application of pretty simple legal rules. The main thing to notice is that the court did not say that the school could be vicariously liable for the acts of the counselor because such acts were outside the scope of the counselor's employment. Liability can flow from any negligence on the part of the counselor's supervisors - for their failure to provide reasonable care in investigating and supervising the counselor.
]]>The National Association of Manufacturers and National Right to Work Legal Defense and Education Foundation sued to enjoin enforcement of the NLRB's new rule (taking effect April 30) requiring all employers subject to the NLRA to post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures.
The court held that
"the NLRA granted the Board broad rulemaking authority to implement the provisions of the Act, and that the Board did not exceed its statutory authority in promulgating Subpart A of the challenged rule - the notice posting provision. But it also holds that the provision of Subpart B that deems a failure to post to be an unfair labor practice, and the provision that tolls the statute of limitations in unfair labor practice actions against employers who have failed to post, do violate the NLRA and are invalid as a matter of law."
As part of the same case - National Association of Manufacturers v. NLRB (D. Dist of Columbia 03/02/2012) - The US District Court for the District of Columbia declined to allow plaintiffs to "shoehorn a challenge to the President's recent recess appointments into" the case challenging the NLRB's notice posting rule.
The court said:
"the rule was promulgated by a quorum of undisputedly duly authorized members well before the recess appointments were announced, and it is set to go into effect automatically on April 30." "The Court declines this invitation to take up a political dispute that is not before it."
OK, no surprises here.
]]>With respect to the Secretary's appearance as amicus supporting Christopher, the court concluded it owed no deference to the Secretary's current interpretation of the regulations and disagreed with that interpretation. The court found the regulations merely "parrot" section 3(k) of the FLSA and, as such, acquired no special authority by paraphrasing the statutory language. Gonzales v. Oregon, 546 US 243, 257 (2006). In view of many similarities between PSRs and salespeople in other fields, pharmaceutical industry norms, and the acquiescence of the Secretary over the last seventy-plus years, the court could not accord even minimal Skidmore deference to the position expressed in the amicus brief.
[In contrast to the 9th Circuit, the 2nd Circuit adopted the Secretary's position that PSRs did not meet the requirements of the outside sales exemption "when an employee promotes to a physician a pharmaceutical that may thereafter be purchased by a patient from a pharmacy ... the employee does not in any sense make a sale." In re Novartis Wage & Hour Litigation, 611 F3d 141 (2d Cir. 2010).]
Case below: Christopher v. SmithKline Beecham Corp (9th Cir 02/14/2011)
Official docket sheet
Certiorari granted: November 28, 2011.
Oral argument: Monday, April 16, 2012.
Questions presented in petition for certiorari:
Briefs on the merits:The outside sales exemption of the Fair Labor Standards Act exempts from the overtime requirements of the Act "any employee employed... in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary .)." 29 U.S.C. § 213(a)(1). The Secretary of Labor has implemented various regulations that "define and delimit" the outside sales exemption and, filing as amici in this and other related matters, has interpreted these regulations to find the exemption inapplicable to pharmaceutical sales representatives. A split exists between the Second and Ninth Circuits concerning whether this interpretation is owed deference and whether the outside sales exemption of the Fair Labor Standards Act applies to pharmaceutical sales representatives.
The questions presented are:
(1) Whether deference is owed to the Secretary’s interpretation of the Fair Labor Standards Act’s outside sales exemption and related regulations; and
(2) Whether the Fair Labor Standards Act’s outside sales exemption applies to pharmaceutical sales representatives.
Kloeckner appealed the Merit Systems Protection Board's (MSPB) final order of dismissal as untimely to the District of Columbia District Court, which transferred venue to the Eastern District of Missouri. The trial court dismissed on the ground that the Federal Circuit had exclusive subject matter jurisdiction. The 8th Circuit affirmed.
The jurisdictional issue turned on the meaning of the term"[c]ases of discrimination" in 5 USC Section 7703(b)(2).
The 8th Circuit held that petitions to review MSPB's final decisions must be filed in the Court of Appeals for the Federal Circuit unless the MSPB decided discrimination issues on the merits.
The 2nd and 10th Circuits hold that cases of discrimination shall be filed in district court as required by Title VII, regardless of whether the MSPB's decision was on the merits.
The US Supreme Court granted certiorari to review the 8th Circuit judgment.
The issue is whether a public sector union must send a Hudson notice when it implements a mid-year dues and fees increase.
Another issue is whether this case is now moot.
For my recap of the oral arguments, see Argument recap: Mootness could squelch union fees case at SCOTUSblog.
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (US Supreme Ct 01/11/2012)
The church employed Cheryl Perich as a "called" teacher and a commissioned minister. In addition to teaching secular subjects, Perich taught a religion class, led her students in daily prayer and devotional exercises, and took her students to a weekly school-wide chapel service. Perich led the chapel service herself about twice a year. After the church discharged Perich, the EEOC sued claiming the church discharged her in retaliation for threatening to bring a suit under the Americans with Disabilities Act (ADA). The trial court granted summary judgment for the church based on the ministerial exception; the 6th Circuit reversed on the ground that Perich was not a "minister." The Supreme Court reversed.
The Court recognizes a ministerial exception because "Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church."
Perich was a minister within the meaning of the ministerial exception. Both the church and Perich held her out as a minister. That title required significant religious training and formal commissioning. Her job duties reflected a role in conveying the church's message and carrying out its mission.
(The Court expressed no view on whether the ministerial exception bars suits other than employment discrimination suits challenging a church's decision to discharge a minister.)
The NLRB has ruled that it is a violation of federal labor law to require employees to sign arbitration agreements that prevent them from joining together to pursue employment-related legal claims in any forum, whether in arbitration or in court.
The Board said:
"In this case, we consider whether an employer violates Section 8(a)(1) of the National Labor Relations Act when it requires employees covered by the Act, as a condition of their employment, to sign an agreement that precludes them from filing joint, class, or collective claims addressing their wages, hours or other working conditions against the employer in any forum, arbitral or judicial. For the reasons stated below, we find that such an agreement unlawfully restricts employees’ Section 7 right to engage in concerted action for mutual aid or protection, notwithstanding the Federal Arbitration Act (FAA), which generally makes employment-related arbitration agreements judicially enforceable. In the circumstances presented here, there is no conflict between Federal labor law and policy, on the one hand, and the FAA and its policies, on the other."
The decision examined one such agreement used by nationwide homebuilder D.R. Horton, under which employees waived their right to a judicial forum and agreed to bring all claims to an arbitrator on an individual basis. The agreement prohibited the arbitrator from consolidating claims, fashioning a class or collective action, or awarding relief to a group or class of employees.
The Board found that the agreement unlawfully barred employees from engaging in “concerted activity” protected by the National Labor Relations Act. The Board emphasized that the ruling does not require class arbitration as long as the agreement leaves open a judicial forum for group claims.
Chairman Mark Gaston Pearce and Member Craig Becker joined in finding the agreement unlawful. Member Brian Hayes was recused from the case. The decision was finalized on Jan. 3, but was issued publicly by the agency Jan. 6.
The decision requires Horton to rescind the agreement or revise it to make clear to employees that they are not waiving their right to pursue a class or collective action in all forums.
It is noteworthy that this decision will apply to private sector employers whether or not they are unionized.
]]>While he was teaching me the intricacies of the rule against perpetuities, he was teaching (by his example) precision, respect, and courtesy.
Bob created a better world simply by being in it.
[Obituary]
The US Supreme Court will hear oral arguments on January 10 on the following two questions:
(1) Whether a state, consistent with the First and Fourteenth Amendments, may condition employment on the payment of a special union assessment intended solely for political and ideological expenditures without first providing a Hudson notice that includes information about that assessment and provides an opportunity to object to its exaction;and
(2) Whether a state, consistent with the First and Fourteenth Amendments, may condition continued public employment on the payment of union agency fees for purposes of financing political expenditures for ballot measures.
We expect the appointments to be challenged on the ground that the Senate was not in "recess."
Sharon Block, Democrat, Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Between 2006 and 2009, Ms. Block was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy. Ms. Block previously served at the National Labor Relations Board as senior attorney to Chairman Robert Battista from 2003 to 2006 and as an attorney in the appellate court branch from 1996 to 2003. From 1994 to 1996, she was Assistant General Counsel at the National Endowment for the Humanities, and from 1991 to 1993, she was an associate at Steptoe & Johnson. She received a B.A. in History from Columbia University and a J.D. from Georgetown University Law Center where she received the John F. Kennedy Labor Law Award.
Terence F. Flynn, Republican, currently detailed to serve as Chief Counsel to NLRB Board Member Brian Hayes. Mr. Flynn was previously Chief Counsel to former NLRB Board Member Peter Schaumber, where he oversaw a variety of legal and policy issues in cases arising under the National Labor Relations Act. From 1996 to 2003, Mr. Flynn was Counsel in the Labor and Employment Group of Crowell & Moring, LLP, where he handled a wide range of labor and employment issues, including collective bargaining negotiations, litigation of unfair labor practices, defense of ERISA claims, and wage and hour disputes, among other matters. From 1992 to 1995, he was a litigation associate at the law firm David, Hager, Kuney & Krupin, where he counseled clients on federal, state, and local employment and wage hour laws, NLRB arbitrations, and other labor relations disputes. Mr. Flynn started his law career at the firm Reid & Priest, handling labor and immigration matters from 1990 to 1992. He holds a B.A. degree from University of Maryland, College Park and a J.D. from Washington & Lee University School of Law.
Richard Griffin, Democrat, General Counsel for International Union of Operating Engineers (IUOE). He also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994. Since 1983, he has held a number of leadership positions with IUOE from Assistant House Counsel to Associate General Counsel. From 1985 to 1994, Mr. Griffin served as a member of the board of trustees of the IUOE's central pension fund. From 1981 to 1983, he served as a Counsel to NLRB Board Members. Mr. Griffin holds a B.A. from Yale University and a J.D. from Northeastern University School of Law.
]]>The case deals with insurance claims adjusters, but it will apply across the board.
The California Court of Appeal had ruled that insurance claims adjusters are not exempt employees as a matter of law. The California Supreme Court unanimously reversed, finding that the Court of Appeal simply got the law wrong.
The Court of Appeal had said that the only employees who qualify as exempt are those whose work is "performed at the level of policy or general operations." Everyone else, then would be a production worker, and not exempt.
The Supreme Court rejected that bright line between administration and production. Indeed, the holding of the court went no further than that. The court said, "We merely hold that the Court of Appeal improperly applied the administrative/production worker dichotomy as a dispositive test."
However, if you want to read an interesting discussion of the details of the opinion, look at Cal Supreme Court Reverses Horrific Decision on Administrative Exemption But Declines to Provide Much Guidance on How Exemption Should Be Applied by Thomas Kaufman at Labor and Employment Law Blog.
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