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Supreme Court tackles political activities payroll deductions
March 31, 2008 by Ross Runkel at LawMemo
The US Supreme Court granted certiorari March 31 to decide Ysursa, Idaho Secretary of State v. Pocatello Education Association [Details, all briefs]
Formal Question Presented by the cert petition:
"Does the First Amendment to the United States Constitution prohibit a state legislature from removing the authority of state political subdivisions to make payroll deductions for political activities under a statute that is concededly valid as applied to state government employers?"
Background:
An Idaho state statute prohibits local government employers and school employers from making payroll deductions for "political activities," defined as "electoral activities, independent expenditures, or expenditures made to any candidate, political party, political action committee or political issues committee or in support of or against any ballot measure."
The 9th Circuit held that this statute is unconstitutional in that it violates the first amendment rights of the labor unions who represent the employees. The 9th Circuit reasoned that (1) the "restriction on voluntary political contributions" was a burden on political speech in that it would decrease the revenues available to the labor unions to use for political speech; (2) the law is a form of content discrimination; (3) content-based restrictions on political speech are subject to strict scrutiny; (4) the state offered no compelling interest in favor of the law.
The 9th Circuit rejected the state's attempts to have the statute analyzed under two exceptions to the strict-scrutiny standard. (1) Government can refrain from paying for speech with which it disagrees, but the State does not subsidize the payroll systems of local government. (2) Government's ability to regulate speech in a public forum (here defined as the local governments' payroll deduction programs) did not apply because neither the local workplaces nor the local payroll systems are "property of the State of Idaho."
My view: The State of Idaho (Ysursa) will win; the 9th Circuit will be reversed.
The 9th Circuit opinion was amazingly wooden, consisting of a recital and review of past decisions that were designed to resolve very different questions.
The US Supreme Court should view this case as raising a question far different from the questions raised in previous cases.
I expect the majority will hold that the State of Idaho has the power to control the payroll deduction system used by local governments and school districts, and that barring deductions for "political purposes" is a neutral (not discriminatory based on content) regulation that does not need to be justified by a "compelling state interest." They probably will point out that labor unions do not have a first amendment right to have local governments and school districts do the work of collecting political contributions for them.
If Idaho can implement its statute, the labor unions will remain free to collect money for political purposes. They just won't have the assistance of state governments and local school districts.
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Chamber v. Brown predictions
March 19, 2008 by Ross Runkel at LawMemo
Chamber of Commerce v. Brown was argued this morning at the US Supreme Court. [Details; briefs] [Transcript of argument]
I have nothing better to do than make a prediction on the outcome of this important case.
My view: California (Brown) will win, 6-3 or better.
Paul Secunda's (Workplace Prof Blog) view: Chamber of Commerce will win, 6-3.
California's statute simply says that an employer that receives state funds or grants cannot spend that money "to assist, promote, or deter union organizing." Violation of that restriction, of course, carries penalties.
The Chamber argues that California's statute is preempted by two well-known preemption doctrines. California disagrees, saying that the statute acts in a neutral way to keep employers from spending state money to deter union organizing.
Today's oral argument was interesting because there was a good discussion of labor law preemption, and the distinction between the State acting in a proprietary role versus a regulatory role.
I believe the Court will surprise many onlookers by using a reasoning process that goes something like this:
- The Court does not like facial challenges to the legality of statutes. Does not like them at all. For example: Washington State Grange v. Washington State Republican Party (March 18, 2008 ); Gonzales v. Carhart (2007).
- The case raises serious questions of federalism and state sovereignty, which will be resolved as follows: Once a state decides to give money to a private party, the state has the power to limit what the money is spent for, even though it appears that the state is meddling with national labor policy. National labor policy does not require states to allow state funds to be used for anti-union or pro-union advocacy.
- To the extent that California employers are concerned that the statute unduly tangles them in red tape or has a real-life effect of regulating labor relations, they can attack the statute as it has been applied.
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25 words on Federal Express Corp v. Holowecki
February 27, 2008 by Ross Runkel at LawMemo
In Federal Express Corp v. Holowecki (US Supreme Court 02/27/2008) (7-2) the Supreme Court came to grips with a long-standing legal question: Whether an employee alleging discrimination gets the ball rolling (and stops the statute of limitations) by filing what the EEOC calls an "intake questionnaire." The answer is "Yes."
The Supreme Court decision in 25 words:
EEOC's "intake questionnaire" can serve as a "charge," because the statute doesn't define "charge" and EEOC regulations fill in the gaps in a reasonable way.
The Official Syllabus:
The Age Discrimination in Employment Act of 1967 (ADEA) requires that "[n]o civil action ... be commenced ... until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission" (EEOC), 29 U. S. C. §626(d), but does not define the term "charge." After petitioner delivery service (FedEx) initiated programs tying its couriers' compensation and continued employment to certain performance benchmarks, respondent Kennedy (hereinafter respondent), a FedEx courier over age 40, filed with the EEOC, in December 2001, a Form 283 "Intake Questionnaire" and a detailed affidavit supporting her contention that the FedEx programs discriminated against older couriers in violation of the ADEA. In April 2002, respondent and others filed this ADEA suit claiming, inter alia, that the programs were veiled attempts to force out, harass, and discriminate against older couriers. FedEx moved to dismiss respondent's action, contending she had not filed the "charge" required by §626(d). Respondent countered that her Form 283 and affidavit constituted a valid charge, but the District Court disagreed and granted FedEx's motion. The Second Circuit reversed.
Held:
1. In addition to the information required by the implementing regulations, i.e., an allegation of age discrimination and the name of the charged party, if a filing is to be deemed a "charge" under the ADEA it must be reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee.
(a) There is little dispute that the EEOC's regulations-so far as they go-are reasonable constructions of the statutory term "charge" and are therefore entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 . However, while the regulations give some content to the term charge, they fall short of a comprehensive definition. Thus, the issue is the guidance the regulations give. Title 29 CFR §1626.3 says: "charge shall mean a statement filed with the [EEOC] which alleges that the named prospective defendant has engaged in or is about to engage in acts in violation of the Act." Section 1626.8(a) identifies information a "charge should contain," including: the employee's and employer's names, addresses, and phone numbers; an allegation that the employee was the victim of age discrimination; the number of employees of the charged employer; and a statement indicating whether the charging party has initiated state proceedings. Section 1626.8(b), however, seems to qualify these requirements by stating that a charge is "sufficient" if it meets the requirements of §1626.6-i.e., if it is "in writing and ... name[s] the prospective respondent and ... generally allege[s] the discriminatory act(s)." That the meaning of charge remains unclear, even with the regulations, is evidenced by the differing positions of the parties and the Courts of Appeals on the matter.
(b) Just as this Court defers to reasonable statutory interpretations, an agency is entitled to deference when it adopts a reasonable interpretation of its regulations, unless its position is " ' plainly erroneous or inconsistent with the regulation,' " Auer v. Robbins, 519 U. S. 452 . The Court accords such deference to the EEOC's position that its regulations identify certain requirements for a charge but do not provide an exhaustive definition. It follows that a document meeting §1626.6's requirements is not a charge in every instance. The language in §§1626.6 and 1626.8 cannot be viewed in isolation from the rest of the regulations. While the regulations' structure is less than clear, the relevant provisions are grouped under the title, "Procedures-Age Discrimination in Employment Act." A permissible reading is that the regulations identify the procedures for filing a charge but do not state the full contents of a charge.
(c) That does not resolve this case because the regulations do not state what additional elements are required in a charge. The EEOC submits, in accordance with a position it has adopted in internal directives over the years, that the proper test is whether a filing, taken as a whole, should be construed as a request by the employee for the EEOC to take whatever action is necessary to vindicate her rights.
(d) The EEOC acted within its authority in formulating its request-to-act requirement. The agency's policy statements, embodied in its compliance manual and internal directives, interpret not only its regulations but also the statute itself. Assuming these interpretive statements are not entitled to full Chevron deference, they nevertheless are entitled to a "measure of respect" under the less deferential standard of Skidmore v. Swift & Co., 323 U. S. 134 , see Alaska Dept. of Environmental Conservation v. EPA, 540 U. S. 461 , whereby the Court considers whether the agency has consistently applied its position, e.g., United States v. Mead Corp., 533 U. S. 218 . Here, the relevant interpretive statement has been binding on EEOC staff for at least five years. True, the agency's implementation has been uneven; e.g., its field office did not treat respondent's filing as a charge, and, as a result, she filed suit before the EEOC could initiate conciliation with FedEx. Such undoubted deficiencies are not enough, however, to deprive an agency that processes over 175,000 inquiries a year of all judicial deference. Moreover, the charge must be defined in a way that allows the agency to fulfill its distinct statutory functions of enforcing antidiscrimination laws, see 29 U. S. C. §626(d), and disseminating information about those laws to the public, see, e.g., Civil Rights Act of 1964, §§705(i), 705(g)(3).
(e) FedEx's view that because the EEOC must act "[u]pon receiving ... a charge," 29 U. S. C. §626(d), its failure to do so means the filing is not a charge, is rejected as too artificial a reading of the ADEA. The statute requires the aggrieved individual to file a charge before filing a lawsuit; it does not condition the individual's right to sue upon the agency taking any action. Cf. Edelman v. Lynchburg College, 535 U. S. 106 . Moreover, because the filing of a charge determines when the ADEA's time limits and procedural mechanisms commence, it would be illogical and impractical to make the definition of charge dependent upon a condition subsequent over which the parties have no control. Cf. Logan v. Zimmerman Brush Co., 455 U. S. 422 . Pp. 12-13.
2. The agency's determination that respondent's December 2001 filing was a charge is a reasonable exercise of its authority to apply its own regulations and procedures in the course of the routine administration of the statute it enforces.
(a) Respondent's completed Form 283 contained all the information outlined in 29 CFR §1626.8, and, although the form did not itself request agency action, the accompanying affidavit asked the EEOC to "force [FedEx] to end [its] age discrimination plan." FedEx contends unpersuasively that, in context, the latter statement is ambiguous because the affidavit also stated: "I have been ... assur[ed] by [the EEOC] that this Affidavit will be considered confidential ... and will not be disclosed ... unless it becomes necessary ... to produce the affidavit in a formal proceeding." This argument reads too much into the nondisclosure assurances. Respondent did not request the EEOC to avoid contacting FedEx, but stated only her understanding that the affidavit itself would be kept confidential and, even then, consented to disclosure of the affidavit in a "formal proceeding." Furthermore, respondent checked a box on the Form 283 giving consent for the EEOC to disclose her identity to FedEx. The fact that respondent filed a formal charge with the EEOC after she filed her District Court complaint is irrelevant because postfiling conduct does not nullify an earlier, proper charge.
(b) Because the EEOC failed to treat respondent's filing as a charge in the first instance, both sides lost the benefits of the ADEA's informal dispute resolution process. The court that hears the merits can attempt to remedy this deficiency by staying the proceedings to allow an opportunity for conciliation and settlement. While that remedy is imperfect, it is unavoidable in this case. However, the ultimate responsibility for establishing a clearer, more consistent process lies with the EEOC, which should determine, in the first instance, what revisions to its forms and processes are necessary or appropriate to reduce the risk of future misunderstandings by those who seek its assistance.
440 F. 3d 558, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SOUTER, GINSBURG, BREYER, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined.
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25 words on Sprint/United Management
February 26, 2008 by Ross Runkel at LawMemo
Lots of people held out a false hope that Sprint/United Management v. Mendelsohn (US Supreme Court 02/26/2008) would decide whether so-called "me-too" evidence could be used in a discrimination case. They hoped for a bright line to be drawn that would settle the question for all future cases.
Well, I'm sorry, but this case was not so much an employment law case as it was an evidence case. It turned on the proper role of the trial courts versus the appellate courts in applying the Federal Rules of Evidence.
Here's what I learned in law school (oh so long ago) and what this decision actually says - in 25 words:
It is the trial court that decides fact-sensitive questions on the relevance of evidence, subject to abuse-of-discretion review. Let the trial court do its job.
It took the Supreme Court only nine pages, with a unanimous decision.
Now everyone can go back to their specific cases and continue to work through the difficult questions of relevance that will - as always - turn on the specific facts of the individual case. There will not be one single answer that will fit all cases.
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Supreme Court reverses "me too" evidence decision
February 26, 2008 by Ross Runkel at LawMemo
Sprint/United Management v. Mendelsohn (US Supreme Court 02/26/2008)
Official Syllabus:
In respondent Mendelsohn's age discrimination case, petitioner Sprint moved in limine to exclude the testimony of former employees alleging discrimination by supervisors who had no role in the employment decision Mendelsohn challenged, on the ground that such evidence was irrelevant to the case's central issue, see Fed. Rules Evid. 401, 402, and unduly prejudicial, see Rule 403. Granting the motion, the District Court excluded evidence of discrimination against those not "similarly situated" to Mendelsohn. The Tenth Circuit treated that order as applying a per se rule that evidence from employees of other supervisors is irrelevant in age discrimination cases, concluded that the District Court abused its discretion by relying on the Circuit's Aramburu case, determined that the evidence was relevant and not unduly prejudicial, and remanded for a new trial.
Held: The Tenth Circuit erred in concluding that the District Court applied a per se rule and thus improperly engaged in its own analysis of the relevant factors under Rules 401 and 403, rather than remanding the case for the District Court to clarify its ruling.
(a) In deference to a district court's familiarity with a case's details and its greater experience in evidentiary matters, courts of appeals uphold Rule 403 rulings unless the district court has abused its discretion. Here, the Tenth Circuit did not accord due deference to the District Court. The District Court's two-sentence discussion of the evidence neither cited nor gave any other indication that the decision relied on Aramburu or suggested that the court applied a per se rule of inadmissibility. Neither party's submissions to the District Court suggested that Aramburu was controlling. That court's use of the same "similarly situated" phrase that Aramburu used cannot be presumed to indicate adoption of Aramburu's analysis, for the District Court was addressing a very different kind of evidence here. And the nature of Sprint's argument was not that the particular evidence was never admissible, but only that such evidence lacked sufficient probative value in this case to be relevant or outweigh prejudice and delay.
(b) Because of the Tenth Circuit's error, it went on to assess the relevance of the evidence itself and conduct its own balancing of probative value and potential prejudicial effect when it should have allowed the District Court to make these determinations in the first instance, explicitly and on the record.
466 F. 3d 1223, vacated and remanded.
THOMAS, J., delivered the opinion for a unanimous Court.
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Gómez-Pérez v. Potter prediction
February 19, 2008 by Ross Runkel at LawMemo
Paul Secunda has read the US Supreme Court transcript from today's oral argument in Gómez-Pérez v. Potter [Details, briefs] and concludes that the employer will win 5:4. His comments appear at the Workplace Prof Blog and at SCOTUSblog.
The issue is whether federal employees can state a claim for retaliation under the Age Discrimination in Employment Act (ADEA).
Well, I've also read the transcript. Paul is correct that the employer will win, but I don't see the case being decided by a close vote. Anything closer than 7:2 will surprise me.
Why? The ADEA sets up a dual scheme for private employers and for federal employers. Those who work for private employers have an express statutory provision that forbids retaliation. Those who work for a federal employer do not. Under the most elementary rules of statutory interpretation, this means federal employees do not have a claim for retaliation. There's no way four Justices are going to strain the language of the statute to reach the result that Gómez-Pérez wants them to reach.
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Three new Supreme Court cases
February 19, 2008 by Ross Runkel at LawMemo
US Supreme Court will hear case on union's waiver of court forum for statutory claim.
14 Penn Plaza LLC v. Pyett (Certiorari granted February 19, 2008) [Details, briefs]
When employees sued claiming age discrimination, the employer filed a motion to compel them to take the case to arbitration. The employees were covered by a collective bargaining agreement which prohibited age discrimination and also said "All such claims shall be subject to the grievance and arbitration procedure [in the collective bargaining agreement] as the sole and exclusive remedy for violations." The trial court denied the motion to compel arbitration, and the 2nd Circuit affirmed. The 2nd Circuit held that "arbitration provisions contained in a [collective bargaining agreement], which purport to waive employees' rights to a federal forum with respect to statutory claims, are unenforceable."
See discussion of this case at Daily Developments in EEO Law and at ADR Prof Blog: Supreme Court hears third arbitration case this term: 14 Penn Plaza v. Pyett and at Workplace Prof Blog: Supreme Court Certs
US Supreme Court will hear case on union's use of agency fees for out-of-unit litigation.
Locke v. Karass (Certiorari granted February 19, 2008) [Details, briefs]
The Maine State Employees Association (MSEA) is the exclusive bargaining agent for certain state workers, and collects compulsory "agency fees" from non-members who are in the bargaining unit. Some of these fees are transferred to Service Employees International Union (SEIU), MSEA's national affiliate. MSEA included in its calculation of chargeable expenditures those costs of litigation (by both itself and SEIU) that was germane to collective bargaining. This meant that nonmembers contributed, through their service fees, to some litigation that was not undertaken specifically for their own bargaining unit, but rather was conducted by or on behalf of other units or the national affiliate, sometimes in other states. Included within this general category of expenditures were the salaries of SEIU's lawyers, and other costs of providing legal services to bargaining units throughout the country. Costs of litigation that was not related to collective bargaining, however, were not included in the service fees assessed to MSEA's nonmembers. The 1st Circuit held that MSEA may lawfully charge non-members for this "extra-unit litigation" so long as it is germane to the union's collective bargaining duties.
US Supreme Court will hear case on ERISA anti-alienation.
Kennedy v. Plan Administrator for Dupont Savings and Investment Plan (Certiorari granted February 19, 2008)
Decision below: 5th Cir 08/15/2007
William Kennedy's ERISA plan contained a no-alienation provision. William designated his wife Liv as the sole beneficiary. Upon their divorce, Liv agreed to be divested of all her rights. However, there was no Qualified Domestic Relations Order (QDRO). The 5th Circuit held that an ERISA Qualified Domestic Relations Order is the only valid way a divorcing spouse can waive her right to receive her ex-husband's pension benefits under ERISA.
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Employment retaliation at the Supreme Court
February 18, 2008 by Ross Runkel at LawMemo
This week the US Supreme Court will hear two cases that will decide whether it is illegal for an employer to retaliate against an employee for complaining about discrimination.
It's already clear that retaliation is unlawful under Title VII, and under the private sector provisions of the Age Discrimination in Employment Act (ADEA), and other statutes I won't mention here.
The questions raised this week in two cases are
- Gómez-Pérez v. Potter (oral argument February 19) [details, briefs]
Whether, for a federal employee, the ADEA prohibits retaliation for filing an EEO complaint.
Gómez-Pérez sued claiming that her federal employer (the USPS) retaliated against her because she filed an equal employment opportunity complaint with her employer alleging discrimination on the basis of age. The 1st Circuit held that the ADEA does not provide a cause of action for retaliation by federal employers. Applying ADEA Section 15 (29 USC Section 633a), the 1st Circuit reasoned that the statutory prohibition against "discrimination" does not include a prohibition against retaliation. In contrast, the parallel provision (Section 623(d)) governing private employers specifically prohibits retaliation. The US Supreme Court granted certiorari to review the 1st Circuit's judgment.
- CBOCS West, Inc. v. Humphries (oral argument Febrary 20) [details, briefs]
Whether 42 USC section 1981 provides a cause of action for retaliation.
Humphries sued under 42 USC Section 1981 claiming that his employer discharged him in retaliation for complaining to managers about (a) disciplinary actions taken against him allegedly because of his race, and (b) the discharge of another employee allegedly because of that employee's race. Section 1981 prohibits race discrimination in "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." There is no express mention of retaliation. The 7th Circuit held (2-1) that Section 1981 provides a cause of action for retaliation. The US Supreme Court granted certiorari to review the 7th Circuit's judgment.
A third retaliation case is on the docket, but it looks like the oral argument will be put off until October. Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee [details, briefs] - Crawford claimed she was discharged because she cooperated in her employer's investigation of sexual harassment complaints against another employee. No EEOC charge had been filed prior to the investigation. Title VII Section 704(a) protects an employee from retaliation because the employee "has opposed" an unlawful employment practice or "participated in any manner in an investigation ... under this chapter." The 6th Circuit held that Crawford was not protected by either the "opposition" clause or the "participation" clause. The US Supreme Court granted certiorari to review the 6th Circuit's judgment.
Other comments on these cases:
Workplace Prof Blog: Big Week at Supreme Court for Employment Retaliation Cases
ACS Blog: Three Retaliation Claims Cases Reach the Supreme Court: Video Excerpts (with videos)
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Supreme Court takes three employment law cases
January 19, 2008 by Ross Runkel at LawMemo
US Supreme Court granted certiorari in three employment law cases on January 18, 2008)
Retaliation: Is cooperating with internal investigation protected activity?
Crawford v. Metropolitan Government of Nashville
Details, briefs: http://www.lawmemo.com/supreme/case/Crawford/
Crawford claimed she was discharged because she cooperated in her employer's investigation of sexual harassment complaints against another employee. No EEOC charge had been filed prior to the investigation. Title VII Section 704(a) protects an employee from retaliation because the employee "has opposed" an unlawful employment practice or "participated in any manner in an investigation ... under this chapter." The 6th Circuit held that Crawford was not protected by either the "opposition" clause or the "participation" clause. Her petition for certiorari presents the following question: "Does the anti-retaliation provision of section 704(a) of Title VII of the 1964 Civil Rights Act protect a worker from being dismissed because she cooperated with her employer's internal investigation of sexual harassment?"
ADEA: Burden of persuasion in establishing "reasonable factors other than age."
Meacham v. Knolls Atomic Power Laboratory
Details, briefs: http://www.lawmemo.com/supreme/case/Meacham/
The Age Discrimination in Employment Act (ADEA) prohibits employment practices that have an unjustified disparate impact on older workers, Smith v. City of Jackson, Miss., 544 U.S. 228 (2005), but also provides that it "shall not be unlawful for an employer . . . to take any action otherwise prohibited . . . where the differentiation is based on reasonable factors other than age." The question presented in the petition for certiorari is: "Whether an employee alleging disparate impact under the ADEA bears the burden of persuasion on the "reasonable factors other than age" defense, as held by the Second Circuit in this case in conflict with the decisions of other circuits and a regulation of the Equal Employment Opportunity Commission."
ERISA: Judicial review when administrator both decides claims and pays claims.
MetLife v. Glenn
Details, briefs: http://www.lawmemo.com/supreme/case/MetLife/
The Supreme Court will decide two issues: (1) Whether the Sixth Circuit erred in holding, in conflict with two other Circuits, that the fact that a claim administrator of an ERISA plan also funds the plan benefits, without more, constitutes a "conflict of interest" which must be weighed in a judicial review of the administrator's benefit determination under Firestone Tire & Rubber v. Bruch, 489 U.S. 101 (1989)? (2) If an administrator that both determines and pays claims under an ERISA plan is deemed to be operating under a conflict of interest, how should that conflict be taken into account on judicial review of a discretionary benefit determination?"
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ADA accommodation case taken off Supreme Court docket
January 15, 2008 by Ross Runkel at LawMemo
Huber v. Wal-Mart Stores, Inc. has been settled by the parties, and removed from the list of cases that the Supreme Court will decide this year.
It raised an interesting issue: Whether the ADA requires an employer to reassign a disabled employee to a vacant position for which she is qualified, or merely permits the employee to apply and compete with other applicants for the vacant position.
Here is how the issue was stated in Huber's petition for certiorari:
Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12111 et seq. (ADA), requires employers to "mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." 42 U.S.C. § 12112(b)(5)(A). The statute expressly lists "reassignment to a vacant position" as a "reasonable accommodation." Id. § 12111(9)(B). The Equal Employment Opportunity Commission (EEOC) has issued regulations implementing that definition, 29 C.F.R. § 1630.2(o)(2)(ii), and it has interpreted those regulations to provide that "[t]he employee does not need to be the best qualified individual for the position in order to obtain it as a reassignment." The questions presented are:1. If a disability prevents an employee from performing the essential functions of his or her current position, does the ADA require:
(a) that the employer reassign the employee to a vacant, equivalent position for which he or she is qualified, as the Tenth and District of Columbia Circuits have held; or(b) that the employer merely permit the employee to apply and compete with other applicants for the vacant, equivalent position for which he or she is qualified, as the Seventh and Eighth Circuits have held?
The facts:
Pam Huber had worked as an order-filler until she became disabled. She sought, as a reasonable accommodation, reassignment to a router position which was vacant and for which she was qualified. The employer did not automatically reassign her to the router position, but required her to apply and compete with other applicants. The employer filled the router position with a non-disabled person who was the most qualified applicant, and placed Huber in a less desirable janitorial position.
Huber sued under the Americans with Disabilities Act (ADA); the trial court granted summary judgment for Huber; the 8th Circuit reversed; the US Supreme Court granted certiorari to review the 8th Circuit judgment. Now the case has been dismissed.
Huber's position was that the employer should have automatically reassigned her to the router position without requiring her to compete with other applicants. The employer's position was that it has a nondiscriminatory policy of hiring the most qualified applicant, and that giving the router position to the most qualified applicant does not violate the ADA.
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Supreme Court takes "class of one" case
January 11, 2008 by Ross Runkel at LawMemo
This morning the US Supreme Court announced that it will decide whether, in the context of employment, there can be a "class of one" under the equal protection clause.
Engquist v. Oregon Dept of Agriculture [Details]
The ("liberal") 9th Circuit rejected a legal theory that many other circuits have adopted. It's the class-of-one idea that you can win an equal protection case even though you're not claiming to be in a multi-member class such as is involved in race and sex discrimination.
Enquist was laid off from her state job. She sued her public employer under several theories and won a jury verdict based on two constitutional theories and on intentional interference with contract. The 9th Circuit reversed on the equal protection claim.
Equal protection for a class of one? 9th Circuit said "No."
Engquist v. Oregon Dept of Agriculture (9th Cir 02/08/2007) (2-1 vote).
The jury found liability under the equal protection clause because the defendants "intentionally treat[ed] the plaintiff differently than others similarly situated with respect to the denial of her promotion, termination of her employment, or denial of bumping rights without any rational basis and solely for arbitrary, vindictive, or malicious reasons." This was done on a theory that Engquist was a "class of one."
The 9th Circuit held, as a matter of first impression, that a class-of-one theory is not applicable to public employees. Following Village of Willowbrook v. Olech, 528 US 562 (2000), the 9th Circuit has applied the class of one theory to regulatory land use cases, and other Circuits have applied it to public employment decisions.
The court concluded that the rights of public employees are not as broad as the rights of ordinary citizens, the need for review under equal protection analysis is "thin" due to other legal protections enjoyed by public employees, and "prohibiting arbitrary public employer actions would also upset long-standing personnel practices."
Looks like the expedited briefing schedule imposed by the Supreme Court will give them time to hear oral arguments in April, and decide the case before the summer recess.
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Age discrimination, retirement plans, and the Supreme Court
January 09, 2008 by Ross Runkel at LawMemo
Today the US Supreme Court hear oral arguments in Kentucky Retirement Systems v. EEOC [Click here for briefs, link to transcript, etc.].
EEOC sued claiming that a disability-retirement-benefits plan for state and county employees violates the Age Discrimination in Employment Act (ADEA). The trial court granted summary judgment for defendants on the ground that EEOC did not establish a prima facie case; the 6th Circuit, en banc 10-4, reversed.
The KRS disability-retirement-benefits plan disqualifies employees who are still working from receiving disability-retirement benefits if they have already reached normal retirement-benefit age at the time they become disabled. The plan also calculates disability retirement benefits in such a way that an older employee who is eligible to receive disability benefits receives fewer benefits - in the form of lower monthly benefit payments - than a younger disabled employee receiving disability-retirement benefits who is similar to the older disabled employee in every relevant factor other than age.
The 6th Circuit held that (1) EEOC established a prima facie case because the plan is facially discriminatory on the basis of age and (2) when a plan is facially discriminatory a plaintiff does not need additional proof of discriminatory animus to establish a prima facie claim of disparate treatment.
The US Supreme Court granted certiorari to review the 6th Circuit's judgment.
If you want to see what Paul Secunda at Workplace Prof Blog gleaned from the transcript of the Supreme Court argument, go to Oral Argument Transcript Analysis of Kentucky Retirement Systems v. EEOC.
My view: Extremely difficult to predict the outcome, but three things make me tilt toward the EEOC's position:
- Kentucky is relying to some extent on an argument that their plan is not "arbitrary." OK, fine. The problem with that argument is that the word "arbitrary" does not appear in the portion of the statute that EEOC relies on, so it's not really relevant whether the plan is arbitrary or not. "Arbitrary" appears in the preamble only.
- The plan expressly uses age as a criterion. Where I come from, that makes the plan facially discriminatory on the basis of age. Any counterargument to that is really going to have to make mincemeat out of the English language.
- All EEOC is trying to do is establish a prima facie case. If EEOC wins on that one issue, Kentucky still has the opportunity to defend its plan based on defenses that the statute allows.
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Age discrimination disparate impact case heads to Supreme Court
December 22, 2007 by Ross Runkel at LawMemo
Will the US Supreme Court grant certiorari in Meacham v. Knolls Atomic Power Laboratory? [Case details] Probably, I think. Earlier this week the US Justice Department filed a brief arguing that certiorari should be granted.
The Meacham case presents the legal issue of whether it's the plaintiffs or the defendant that bears the burden of proof on an important aspect of a disparate impact age discrimination case: proving (or disproving) that the employer's decision "is based on reasonable factors other than age." That's the RFOA exception.
Knolls laid off employees during an involuntary reduction in force. Of the 31 employees laid off, 30 were over 40 years old. The workforce as a whole was 60% over 40.
Some of the laid off employees sued under the Age Discrimination in Employment Act (ADEA), using a disparate impact theory. A jury found in favor of the plaintiffs. The 2nd Circuit (by 2-1 vote) vacated the judgment of the district court and remanded the case with instructions to enter judgment for the employer. The 2nd Circuit majority held that it is the plaintiffs' burden to prove that the employer's justification is unreasonable. The dissenting judge would look at the RFOA defense as an affirmative defense as to which the employer would have the burden of persuasion.
The government's brief said:
The court of appeals held that plaintiffs raising a disparate-impact age discrimination claim bear the burden of proof with respect to the ADEA’s RFOA exception. That ruling is at odds with the text of the pertinent statutory provision, the decisions of other circuits, and agency regulations. In addition, the burden of proof on this issue is of threshold and recurring importance in ADEA disparate-impact cases. This Court’s review of the first question presented is therefore warranted.
The questions presented by the petition (filed by the losing plaintiffs):
The Age Discrimination in Employment Act (ADEA) prohibits employment practices that have an unjustified disparate impact on older workers, Smith v. City of Jackson, Miss., 544 U.S. 228 (2005), but also provides that it “shall not be unlawful for an employer . . . to take any action otherwise prohibited . . . where the differentiation is based on reasonable factors other than age.” 29 U.S.C. § 623(f)(1). The questions presented are:1. Whether an employee alleging disparate impact under the ADEA bears the burden of persuasion on the “reasonable factors other than age” defense, as held by the Second Circuit in this case in conflict with the decisions of other circuits and a regulation of the Equal Employment Opportunity Commission.
2. Whether respondents’ practice of conferring broad discretionary authority upon individual managers to decide which employees to lay off during a reduction in force constituted a “reasonable factor other than age” as a matter of law.
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Supreme Court will decide ADA accommodation case
December 08, 2007 by Ross Runkel at LawMemo
Huber v. Wal-Mart Stores, Inc (certiorari granted 12/07/2007) [Details, briefs]
Decision below: Huber v. Wal-Mart Stores, Inc (8th Cir 05/30/2007)
Pam Huber had worked as an order-filler until she became disabled. She sought, as a reasonable accommodation, reassignment to a router position which was vacant and for which she was qualified. The employer did not automatically reassign her to the router position, but required her to apply and compete with other applicants. The employer filled the router position with a non-disabled person who was the most qualified applicant, and placed Huber in a less desirable janitorial position.
Huber sued under the Americans with Disabilities Act (ADA); the trail court granted summary judgment for Huber; the 8th Circuit reversed; the US Supreme Court granted certiorari to review the 8th Circuit judgment. Oral argument probably will be scheduled for March 2008.
Huber's position is that the employer should have automatically reassigned her to the router position without requiring her to compete with other applicants.
The employer's position is that it has a nondiscriminatory policy of hiring the most qualified applicant, and that giving the router position to the most qualified applicant does not violate the ADA.
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US Supreme Court will decide labor preemption case
November 20, 2007 by Ross Runkel at LawMemo
The US Supreme Court announced today that it will review the 9th Circuit's judgment in Chamber of Commerce v. Brown (certiorari granted 11/20/2007) [Details, briefs]
Oral argument is expected to be scheduled for March or April 2008.
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 "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 Assn 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."
The "Question Presented" in the petition for certiorari:
"Is the State of California’s regulation of noncoercive employer speech about union organizing, California Assembly Bill 1889, Cal. Gov’t Code §§ 16645.2, 16645.7, preempted by federal labor law?"
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Supreme Court rips EEOC
November 07, 2007 by Ross Runkel at LawMemo
It was a case that seemed dry as toast, inviting a fairly standard analysis of whether a court must defer to an administrative agency's interpretation of an undefined word in a statute. Federal Express v. Holowecki [click here for details and all briefs.]
A simple legal issue: Whether an EEOC intake form can serve as an EEOC charge.
Then it turned into a judicial pile-on, seeing which Justice could be the most critical of the way the EEOC does business.
I'll give the award to Justice Scalia. When the government's lawyer stood up to talk, the lawyer didn't get past his formal introduction before Justice Scalia jumped on him.
"JUSTICE SCALIA: Mr. Heytens, let me tell you going in that my -- my main concern in this case, however the decision comes out, is to do something that will require the EEOC to get its act in order, because this is nonsense: These regulations that are contradicted by forms; this failure to give notice, but it's okay because it's a charge anyway."This whole situation can be traceable back to the agency, and I -- whoever ends up bearing the burden of it, it's the agency's fault, and this scheme has to be revised."
Read the whole transcript here.
Although the Supreme Court has no power to make the EEOC change its ways, it certainly has the ability to throw light on an administrative mess. Perhaps that will lead to change. But only if the EEOC has the political will to change.
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FedEx v. Holowecki transcript
November 06, 2007 by Ross Runkel at LawMemo
Tuesday, November 6, 2007 the US Supreme Court heard oral arguments in Federal Express v. Holowecki [click here for details and all briefs.]
The transcript of the Supreme Court argument is available here.
The issue is whether filing an intake questionnaire qualifies as filing a "charge" with the EEOC. Filing a timely charge is required before taking an ADEA case to court.
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Chamber v Brown at the Supreme Court
October 23, 2007 by Ross Runkel at LawMemo
I'm betting that the US Supreme Court will grant certiorari in Chamber of Commerce v. Brown, to review the 9th Circuit's 12-3 en banc decision.
Friday the US Solicitor General filed an amicus brief urging the Court to grant certiorari, and taking the position that the 9th Circuit's decision was wrong. [Click here for details and briefs.]
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 "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."
This case has the perfect ingredients for a grant of certiorari:
- There is a split of authority among the lower courts.
- The case involves fundamental legal issues that are important on a national scale:
- Whether California has interfered with employers' rights of free speech (either under the 1st amendment or Section 8(c) of the NLRA).
- Whether California has a right to control the use of funds that employers receive from the state.
- Whether federal legislation (the National Labor Relations Act) preempts the state statute.
It may be another month or so before the Court decides whether to take this case. If it does, then it will be more months before an oral argument, and then more time before a decision.
For more discussion of this case:
- SCOTUSblog: Government Recommends Grant in No. 06-939, Chamber of Commerce v. Brown
- Workplace Prof Blog: Solicitor General Recommends Supreme Court Hear Challenge to State Financial Accountability Acts
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Supreme Court denies motion to dismiss ERISA case
September 25, 2007 by Ross Runkel at LawMemo
LaRue v. DeWolff, Boberg & Associates, Inc. (motion denied 09/25/2007)
Order: http://www.supremecourtus.gov/orders/courtorders/092507pzr.pdf
Details: http://www.lawmemo.com/supreme/LaRue/
This case raises the issue of whether ERISA permit a participant to bring an action to recover losses attributable to his account in a “defined contribution plan” that were caused by fiduciary breach.
The respondent filed a motion to dismiss on the ground of mootness because the plan participant has withdrawn all his funds from the account.
The US Supreme Court denied the motion.
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Supreme Court will decide benefit plan age discrimination case
September 25, 2007 by Ross Runkel at LawMemo
Kentucky Retirement Systems v. EEOC (certiorari granted 09/25/2007)
Details: http://www.lawmemo.com/supreme/Kentucky/
EEOC sued claiming that a disability-retirement-benefits plan for state and county employees violates the Age Discrimination in Employment Act (ADEA).
The trial court granted summary judgment for defendants on the ground that EEOC did not establish a prima facie case; the 6th Circuit, en banc 10-4, reversed.
The KRS disability-retirement-benefits plan disqualifies employees who are still working from receiving disability-retirement benefits if they have already reached normal retirement-benefit age at the time they become disabled. The plan also calculates disability retirement benefits in such a way that an older employee who is eligible to receive disability benefits receives fewer benefits - in the form of lower monthly benefit payments - than a younger disabled employee receiving disability-retirement benefits who is similar to the older disabled employee in every relevant factor other than age.
The 6th Circuit held that (1) EEOC established a prima facie case because the plan is facially discriminatory on the basis of age and (2) when a plan is facially discriminatory a plaintiff does not need additional proof of discriminatory animus to establish a prima facie claim of disparate treatment.
The US Supreme Court granted certiorari to review the 6th Circuit's judgment.
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Supreme Court will decide 42 USC Section 1981 retaliation case
September 25, 2007 by Ross Runkel at LawMemo
CBOCS West, Inc. v. Humphries (certiorari granted 09/25/2007)
Details: http://www.lawmemo.com/supreme/CBOCS/
Humphries sued under 42 USC Section 1981 claiming that his employer discharged him in retaliation for complaining to managers about (a) disciplinary actions taken against him allegedly because of his race, and (b) the discharge of another employee allegedly because of that employee's race.
The 7th Circuit held (2-1) that 42 USC Section 1981 provides a cause of action for retaliation.
The US Supreme Court granted certiorari to review the 7th Circuit's judgment.
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Supreme Court will decide federal employer ADEA retaliation case
September 25, 2007 by Ross Runkel at LawMemo
Gómez-Pérez v. Potter (certiorari granted 09/25/2007)
Details: http://www.lawmemo.com/supreme/Gomez-Perez/
Gómez-Pérez sued claiming that her federal employer (the USPS) retaliated against her because she filed an equal employment opportunity complaint with her employer alleging discrimination on the basis of age.
The 1st Circuit held that the Age Discrimination in Employment Act (ADEA) does not provide a cause of action for retaliation by federal employees.
Applying ADEA Section 15 (29 USC Section 633a), the 1st Circuit reasoned that the statutory prohibition against "discrimination" does not include a prohibition against retaliation.
The US Supreme Court granted certiorari to review the 61st Circuit's judgment.
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Union loses "opt-in" agency fee case
June 14, 2007 by Ross Runkel at LawMemo
It does not violate the First Amendment for a State to require its public-sector unions to receive affirmative authorization from a nonmember before spending that nonmember’s agency fees for election-related purposes.
So says a unanimous US Supreme Court in Davenport v. Washington Education Association, decided June 14, 2007.
Washington State allows public-sector unions to charge nonmembers an agency fee equivalent to membership dues and to have the employer collect that fee through payroll deductions. An initiative approved by state voters (§760) requires a union to obtain the nonmembers’ affirmative authorization before using their fees for election-related purposes. The Washington Supreme Court thought this "opt in" requirement was an unconstitutional burden on the union's first amendment rights.
The US Supreme Court recognized that the state was creating a content-based speech regulation. However, the Court upheld §760 by applying precedents dealing with election campaign finance restrictions.
The basic reasoning:
- The union has this money only because the state granted to the union "the power to tax" members of the bargaining unit.
- "As applied to public-sector unions, §760 is not fairly described as a restriction on how the union can spend “its” money; it is a condition placed upon the union’s extraordinary state entitlement to acquire and spend other people’s money."
- The state placed a reasonable, viewpoint-neutral limitation on the use of these funds.
- The state did not impermissibly distort the marketplace of ideas.
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"Me too" case at the Supreme Court
June 11, 2007 by Ross Runkel at LawMemo
Ellen Mendelsohn claimed Sprint fired her because of her age during a company-wide reduction in force. She lost a jury trial. Mendelsohn claims that the trial court improperly excluded testimony from other former Sprint employees that they experienced similar discrimination during the same reduction in force.
The 10th Circuit held that because this evidence was excluded, Mendelsohn did not have a full opportunity to present her case to the jury. Therefore, the 10th Circuit ordered a new trial.
The US Supreme Court granted certiorari on June 11, 2007 to review the 10th Circuit's judgment. Sprint/United Management Company v. Mendelsohn. [Details; certiorari briefs]
The Question Presented by the certiorari petition:
This case presents a recurring question of proof in employment discrimination cases: whether a district court must admit "me, too" evidence - testimony, by non-parties, alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff.The Tenth Circuit panel majority held that a court commits reversible error by excluding "me, too" evidence. This decision conflicts with those of other circuits. Specifically, four circuits have held "me, too" evidence wholly irrelevant. Five circuits have that "me, too" evidence may be excluded under Federal Rule of Evidence 403. Granting certiorari will resolve the conflict between the circuit courts of appeals on this important question of law.
Oral arguments will be scheduled for October 2007 or later.
Paul Secunda at Workplace Prof Blog is predicting that Sprint will win this one.
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ERISA sponsor wins fiduciary argument
June 11, 2007 by Ross Runkel at LawMemo
What are the fiduciary duties when an ERISA plan sponsor terminates the plan?
If a company's union proposes merging the to-be-terminated plan into a pre-existing multi-employer plan, does the sponsor have a fiduciary duty to give this fair consideration? No, according to Beck v. PACE International Union, decided by a unanimous Court on June 11, 2007.
The reason is simple: Merger is not a permissible method of terminating a plan. The ERISA statute, as interpreted by the Pension Benefit Guaranty Corporation, does not permit merger as a method of termination because merger is an alternative to (rather than an example of) plan termination.
My view: I thought it would come out this way, but was not expecting such reliance on the Pension Benefit Guaranty Corporation's interpretation. Just another example of the Court granting strong deference to the interpretation of a federal administrative agency.
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Home care workers lose FLSA case
June 11, 2007 by Ross Runkel at LawMemo
Home care workers don't get overtime or minimum wage coverage under the Fair Labor Standards Act (FLSA) due to an old regulation put out by the federal Department of Labor.
Today the US Supreme Court upheld the validity of that regulation. Long Island Care at Home Ltd v. Coke.
The regulation provides an exemption FLSA for workers who are “companionship” workers “employed by an … agency other than the family or household using their services.”
The Court said that the Labor Department's power to administer a congressionally created program necessarily requires the making of rules to fill any “ ‘gap’ ” left, implicitly or explicitly, by Congress. This is the rule established by Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 . When an agency fills such a gap reasonably, and in accordance with other applicable (e.g., procedural) requirements, that result is legally binding.
My view: This case is consistent with the Chevron USA approach. It reinforces the importance of regulations adopted by federal agencies.
The message is that changes have to come from the agencies themselves rather from the courts. And the agencies are in the hands of the executive branch. You know, the President.
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EEOC intake questionnaire at the Supreme Court
June 04, 2007 by Ross Runkel at LawMemo
Can an EEOC intake questionnaire be treated as a formal "charge"?
The US Supreme Court granted certiorari on June 4, 2007 in Federal Express Corporation v. Holowecki, which will answer that question. The case will be briefed and argued in October 2007 or later.
In order to file a suit under the Age Discrimination in Employment Act (ADEA), a plaintiff must first file a "charge" with the Equal Employment Opportunity Commission (EEOC).
The 2nd Circuit held that plaintiff Patricia Kennedy satisfied the requirement of filing a "charge."
What she filed was an EEOC Intake Questionnaire plus a four-page verified affidavit detailing her claims of age discrimination. The EEOC did not assign a case number, did not investigate or attempt to resolve the matter, and did not notify the employer.
The 2nd Circuit held that Kennedy's filing (1) contained the information required by the statute and by the EEOC's interpreting regulations, and (2) demonstrated Kennedy's intent to activate the EEOC's administrative process.
The formal Question Presented by the petition for certiorari:
Whether the Second Circuit erred in concluding, contrary to the law of several other circuits and implicating an issue this Court has examined but not yet decided, that an "intake questionnaire" submitted to the Equal Employment Opportunity Commission ("EEOC") may suffice for the charge of discrimination that must be submitted pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ASEA"), even in the absence of evidence that the EEOC treated the form as a charge or the employee submitting the questionnaire reasonably believed it constituted a charge.
There is a significant split of authority among the federal circuit courts as to exactly what it means to file an EEOC "charge."
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Some Reflections on the Ledbetter Decision
May 29, 2007 by Ross Runkel at LawMemo
"Some Reflections on the Ledbetter Decision" is the title of Paul Secunda's post at Workplace Prof Blog. He argues that today's decision in Ledbetter v. Goodyear Tire & Rubber Co (US Supreme Court 05/29/2007) was wrong.
Professor Secunda has an excellent analytical eye, and has a thoughtful and generous nature, so I enjoy jousting with him.
I thought the decision was correct, and was surprised only by the fact that four Justices didn't think so.
Paul is quite correct when he says that the main question is: "Is pay discrimination a discrete act like a termination or failure to promote or is it more like a cumulative series of individual events like hostile work environment sexual harassment?"
I jump off Paul's wagon when he says pay discrimination decisions are more like hostile environment claims than they are like a discrete act such as a termination or demotion. Quoting Paul: "As with hostile work environment sexual harassment claims, individual pay decisions by themselves do not have the obvious discriminatory intent that discrete acts such as terminations or failures to promote do."
Not so. In the Ledbetter case, a pay decision was made once a year, and then implemented via paychecks. One single decision. In a hostile environment case, the claim by its very nature involves a cumulation of several events that have to be added together before the environment is sufficiently hostile for a claim to arise.
It's the difference between "wham" (pay raise) and "drip, drip, drip" (hostile environment).
I think Paul and the Supreme Court dissenters have shifted the focus to the difficulty of discovery. If everyone else's pay rate is a secret, then of course it is difficult to discove a discriminatory pay increase. But the same is true in many discharge and promotion cases. It often is difficult to discover that one gender or race has been treated differently than another, and then difficult to discover the reason for the different treatment. That has never had any effect on the statute of limitations.
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Ledbetter loses pay discrimination case
May 29, 2007 by Ross Runkel at LawMemo
Title VII's statute of limitations begins when a discriminatory pay decision was made and communicated to the employee, and does not start over with each later paycheck.
So says the US Supreme Court in a 5-4 decision announced this morning.
Ledbetter v. Goodyear Tire & Rubber Co (US Supreme Court 05/29/2007)
Lilly 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, which she claimed were made with discriminatory intent. 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 US Supreme Court affirmed.
The Supreme Court held that Title VII's statute of limitation period (180 or 300 days) begins to run when "each allegedly discriminatory pay decision was made and communicated to her." The Court rejected Ledbetter's argument that each subsequent paycheck was a separate act of discrimination, and her argument that the most recent decision was unlawful because it carried forward intentionally discriminatory disparities from prior years.
My view: This is the correct decision, following the reasoning that I predicted back in November.
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Dayton v. Hanson - appeal dismissed
May 27, 2007 by Ross Runkel at LawMemo
As I expected, the Supreme Court dismissed the "appeal" in Office of Senator Mark Dayton v. Hanson on May 21, 2007. So the lower court decision remains undisturbed.
Hanson sued his ex-employer - the Office of Senator Mark Dayton. The Dayton folks argued that the suit had to be halted for fear of violating the constitution's speech or debate clause, but the DC Circuit said things could go forward.
The Office of Senator Mark Dayton filed an appeal to the US Supreme Court. That was cute trick. Most cases get to the Supreme Court by writ of certiorari, and the Court gets to pick and choose which of those cases it will allow in the door. But if a case properly gets to the Court on appeal, then the Court has no choice and must decide it.
Very few cases fit into the "appeal" category, and this was not one of them.
Here is what I predicted, and exactly what came about:
First, there is a jurisdictional question. This an "appeal," rather than a certiorari case. A small number of cases from the circuit courts qualify for "appeal," and this is not one of them. So the appeal will be dismissed for lack of jurisdiction at the Supreme Court level.
Second, the Court can, if it wishes, treat the appeal papers as if they were certiorari papers and then go ahead and grant certiorari - in which case they would have jurisdiction. I expect the Court will not do that. The decision below was not wrong, there is no split of authority among the circuits, and the whole dispute really is not particularly important.
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Davenport v WEA developments
May 17, 2007 by Ross Runkel at LawMemo
Washington state law requires unions to get pre-expenditure permission (an "opt in" requirement) from non-members before using their agency shop payments for political purposes.
The US Supreme Court is poised to decide whether the Washington State Supreme Court erred by holding that law unconstitutional as an abridgement of free speech. Davenport v. Washington Education Association.
Now the Washington legislature has amended the statute to be more favorable to the union. So the impact of the US Supreme Court's decision will apply only to expenditures that pre-dated the amendment.
On May 11, 2007 the Washington State Legislature amended the statute by adding one sentence that clarifies the meaning of the word "use." The statutory amendment:
A labor organization does not use agency shop fees when it uses its general treasury funds to make such contributions or expenditures if it has sufficient revenues from sources other than agency shop fees in its general treasury to fund such contributions or expenditures.
All parties have filed supplementary briefs within the past few days. All briefs are here.
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BCI Coca-Cola v EEOC dismissed
April 11, 2007 by Ross Runkel at LawMemo
One of the biggest employment law cases of the year will be dismissed from the US Supreme Court's docket by agreement of the parties.
BCI Coca-Cola Bottling v. EEOC [Details]
BCI discharged Peters, who is black, for insubordination. EEOC claimed that BCI discriminated on the basis of race because similarly situated white and Hispanic employees were treated less harshly. The discharge decision was made by a human resources manager based on information provided by Peters' immediate supervisor plus a review of Peters' personnel record. The HR manager did not know Peters was black. The supervisor not only knew Peters’ race but allegedly had a history of treating black employees unfavorably and making disparaging racial remarks in the workplace. The 10th Circuit held that this case should go to trial.
The case was to be argued on April 18. That argument will be cancelled.
Thanks to, and more details from, SCOTUSblog - Job bias case to be dismissed.
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Supreme Court cases pending
April 08, 2007 by Ross Runkel at LawMemo
Four employment law cases are pending at the US Supreme Court.
Oral arguments have been held in the first two. Arguments in the second two will be held April 16 and 18.
Here they are, with links to Supreme Court Times's details, blog commentaries, and predictions.
- Ledbetter v. Goodyear Tire & Rubber Co (Title VII: Statute of limitations for discriminatory decision followed by periodic paychecks) [Blog] Predicted winner: Goodyear
- Davenport v. Washington Education Association (Fair share union fees; statute requiring "opt in" before union can spend on political matters) [Blog] Predicted winner: Davenport
- Long Island Care at Home Ltd v. Coke (FLSA: Validity of DOL rule exempting home care workers who are employed by an outside agency) [Blog] Predicted winner: Long Island Care at Home
- BCI Coca-Cola Bottling Co v. Equal Employment Opportunity Commission (Title VII: Liability when unbiased HR official relies on information from allegedly biased supervisor) [Blog] Predicted winner: EEOC
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FLSA at the Supreme Court
March 30, 2007 by Ross Runkel at LawMemo
The Supreme Court will decide the validity of a DOL regulation exempting certain home care workers from the Fair Labor Standards Act (FLSA).
Long Island Care at Home Ltd v. Coke will be argued at the US Supreme Court April 16, 2007. [Details]
Employee: Evelyn Coke. Her job was to provide "companionship services" for individuals who were not able to care for themselves. She worked in private homes.
Employer: Long Island Care at Home Ltd, which hires employees like Coke and assigns them to work in private homes.
Statute: The FLSA has an exemption for employees engaged in "companionship services." If Coke had been paid by the families, then she clearly would not get FLSA coverage.
Regulation adopted by Department of Labor: A 30-year-old regulation says that the statutory exemption applies even if Coke is paid by an outside agency.
2nd Circuit decision: The circuit court held that DOL's regulation cannot be enforced because it was not entitled to deference under the rules of Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), or Skidmore v. Swift & Co., 323 U.S. 134 (1944).
My prediction: Coke will lose; the DOL regulation will be enforced.
The legal issue is whether the courts must defer to the DOL's regulation. The 2nd Circuit held that the regulation is not entitled to deference under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), because it is an interpretive rather than a legislative regulation.
I think that's legally wrong. The statute left a gap, DOL had authority to fill the gap, and DOL filled it after notice-and-hearing procedures. The 2nd Circuit made a big deal out of where this regulation was positioned - under the heading "Interpretation" - but that misses the point. The real question is whether DOL intended the regulation to govern the conduct of private parties as opposed to being merely guidance for its own internal purposes. This was not a mere guideline for DOL employees; it was intended to regulate private conduct. Therefore, courts must defer to DOL under Chevron even if the regulation is inconsistent with other DOL regulations (which it is).
If I'm wrong on Chevron deference and the Court applies Skidmore v. Swift & Co. instead, then Coke should win because DOL's explanation of the regulation is not persuasive at all.
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Whistleblower loses Supreme Court case
March 27, 2007 by Ross Runkel at LawMemo
What did he know, and when did he know it?
James Stone thought his ex employer was cheating the government. So he sued under the False Claims Act, hoping to get a chunk of money for his efforts.
One problem. Stone had to be an "original source" of information provided to the government. The US Supreme Court held (6-2) that he was not. Rockwell International Corp v. United States (US Supreme Court 02/27/2007)
Stone predicted that Rockwell's system for creating solid "pondcrete" blocks from toxic pond sludge and cement would not work because of problems in piping the sludge. However, Rockwell successfully made such blocks and discovered "insolid" ones only after Stone was laid off in 1986. In 1989, Stone filed a qui tam suit under the False Claims Act, which prohibits submitting false or fraudulent payment claims to the United States. In order to bring a qui tam suit, one must be an "original source" - one who "has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action … based on the information."
Stone did not allege that his predicted defect caused the insolid blocks. Intead, he alleged that the pondcrete failed because a new foreman used an insufficient cement-to-sludge ratio.
Stone's knowledge fell short. The only false claims found by the jury involved insolid pondcrete discovered after Stone left his employment. Thus, he did not know that the pondcrete had failed; he predicted it. And his prediction was a failed one, for Stone believed the piping system was defective when, in fact, the pondcrete problem would be caused by a foreman's actions after Stone had left the plant.
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Supreme Court will decide ERISA fiduciary case.
January 21, 2007 by Ross Runkel at LawMemo
Do ERISA fiduciary duties apply when a plan administrator decides to terminate a plan? Are there fiduciary duties as to the implementation of the termination?
The US Supreme Court announced January 19 that it will take up Beck v. PACE International Union, and a decision is expected by the end of June. [Details]
When Crown Vantage Inc went into bankruptcy its board of directors served as the administrator of Crown's 18 defined benefit pension plans. The board began considering terminating the plans by purchasing annuities. PACE, representing employees covered by 17 plans, recommended as an alternative that the plans be merged with a pre-existing multi-employer plan.
The board went forward with its termination decision by purchasing annuities for 12 plans.
PACE brought adversary proceedings in bankruptcy court claiming that Crown's board breached its fiduciary duties under the Employee Retirement Income Security Act (ERISA) by failing to give adequate consideration to the merger proposal.
The bankruptcy court agreed.
Beck, the trustee in bankruptcy, appealed to the district court which affirmed.
The 9th Circuit affirmed, holding that
- The decision to terminate the plan was a business decision not subject to ERISA fiduciary obligations
- The implementation of the decision was discretionary in nature and subject to ERISA fiduciary obligations
- Crown's board breached its fiduciary duty by failing to adequately investigate the proposed merger
The US Supreme Court granted certiorari on January 19 to review the 9th Circuit judgment.
The formal question presented to the Supreme Court:
"Whether a pension plan sponsor’s decision to terminate a plan by purchasing an annuity, rather than to merge the pension plan with another, is a plan sponsor decision not subject to ERISA’s fiduciary obligations."
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Ash v. Tyson tries a comeback
January 18, 2007 by Ross Runkel at LawMemo
Less than a year after the US Supreme Court remanded Ash v. Tyson Foods to the 11th Circuit, the case is trying to make a comeback. [Details]
Plaintiffs have filed a petition for certiorari, and the case is on the Court's conference calendar for January 19.
And the petitioners' Reply Brief points to extensive plagiarism (my word) in which the 11th Circuit copied from the defendant's brief, and "reproduces even the typographical and grammatical errors." An Appendix to the Reply Brief sets out a detailed comparison of the brief and the opinion.
A manager called an African-American supervisor "boy," and the 11th Circuit said that could not be evidence of racial animus because the comment was not "black boy." The Supreme Court told the 11th Circuit to be a bit more realistic about the context of the word "boy" rather than categorically excluding it as evidence of pretext in a Title VII case. The 11th Circuit took another look and decided that "boy" in context could not have had any racial significance.
As evidence of pretext in a Title VII case two black employees had evidence that their qualifications were better than the qualifications of the folks that actually got the promotions they sought. The 11th Circuit said this evidence could not be used unless "the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face." The Supreme Court thought that was "unhelpful and imprecise" and sent the case back for some true legal reasoning. The 11th Circuit then applied the rule that "disparities in qualifications must be of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question."
My view:
The qualifications issue badly needs Supreme Court review. Courts that follow some form of the "slap in the face" test (even when dressed up in fancy legal lingo) have got it backwards. It's for the jury to make any inferences about evidence unless no reasonable juror could make the inference. The 11th Circuit's test selects one type of pretext evidence for special treatment, and that evidence never gets to a jury.
The "boy" question is a serious one. However, I think the 11th Circuit is probably right in saying that the plaintiffs did not produce the right kind of evidence to show that the word was being used in its nasty and insulting sense.
Original 11th Circuit decision.
Supreme Court decision.
Second 11th Circuit decision.
Petition for certiorari.
Petitioners' Reply Brief (containing Appendix)
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Union dues and the 1st amendment
January 10, 2007 by Ross Runkel at LawMemo
A union defeat is in the air at the US Supreme Court in Davenport v. Washington Education Association.
A public sector union collects money from nonmembers, as required by a collective bargaining agreement backed up by a state statute.
The state statute says the union can spend the money for political purposes only if the nonmember first "affirmatively authorizes" it.
The union wants to spend the money first, subject to a possible refund later on.
The Supreme Court of the State of Washington ruled in favor of the union, saying the statute requiring nonmembers to "opt in" was a violation of free speech.
I have previously said I thought the sate court was wrong. Davenport v. Washington Education Association - Review granted.
Paul Secunda at Workplace Prof Blog has collected some extracts from today's oral argument at the Supreme Court: Analysis of Oral Transcript in Davenport Supreme Court Union Fees Case. He concludes that there are no more than two Justices who might vote in favor of the union.
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Norfolk Southern v. Sorrell
January 10, 2007 by Ross Runkel at LawMemo
In a FELA case the employer's negligence and the employee's contributory negligence are judged by the same causation standard. The Supreme Court said so today.
Norfolk Southern Railway Co. v. Sorrell (US Supreme Court 01/10/2007)
And what is that standard? The Court refused to say.
In an otherwise boring case, the Court spent three pages explaining that Norfolk Railway tried to "smuggle" in a new issue that was not covered by the grant of certiorari.
Norfolk petitioned the Court to decide whether the same standard of negligence must apply to both plaintiffs and defendants. Once at the Court, Norfolk pushed for a decision on what that standard should be.
Unimpressed, the Court said "Norfolk is not only enlarging the question presented, but taking a position on that enlarged question that is contrary to the position it litigated below." Ouch. Don't do that.
The certiorari petition presented a more limited question, and that is the question the Court decided. No more.
Four Justices wrote two concurring opinions expressing the view that the standard is well settled by previous decisions.
My view: Correct decision. As I said elsewhere, "I can't see why any of the Justices would disagree" that the standards are the same. Norfolk Southern Railway Co. v. Sorrell - preview and prediction.
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Supreme Court takes on FLSA case
January 06, 2007 by Ross Runkel at LawMemo
Must a court defer to Department of Labor regulations interpreting the Fair Labor Standards Act (FLSA) as excluding domestic employees employed by a home care agency?
This is the second time the Supreme Court has taken a look at this case.
The case: Long Island Care at Home Ltd v. Coke [Details, decisions, etc.] Certiorari granted January 5, 2007.
Coke sued her employer under the Fair Labor Standards Act (FLSA) claiming entitlement to minimum wage and overtime. The trial court granted the employer's motion for judgment on the pleadings. The 2nd Circuit reversed in part; the US Supreme Court remanded for reconsideration in light of Department of Labor's December 2005 Wage and Hour Advisory Memorandum; the 2nd Circuit adhered to its original decision. The US Supreme Court granted certiorari to review the 10th Circuit decision.
FLSA Section 213(a)(15) exempts employees engaged in "babysitting services" and "companionship services." The exemption applies to "any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary [of Labor]) ...." Department of Labor (DOL) regulation 29 CFR Section 552.109(a) applies the exemption to "[e]mployees who are engaged in providing companionship services, as defined in Section 552.6, and who are employed by an employer or agency other than the family or household using their services."
The 2nd Circuit held that this regulation is not entitled to deference under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), because it is an interpretive rather than a legislative regulation. The 2nd Circuit also held that this regulation is not entitled to deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944), because it was inconsistent with Congress' purpose and with other regulations and with previous DOL positions, and insufficiently explained by DOL.
The formal Questions Presented in the Supreme Court are:
1. Whether the Second Circuit erred in refusing to give deference under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), to a thirty-year-old Department of Labor regulation - a regulation that has twice been upheld by the Tenth Circuit - on the ground that, even though it was promulgated under express grants of legislative authority and after full notice-and-comment rulemaking, the regulation was contained in a subpart headed “Interpretations.”
2. Whether, in holding that a longstanding Department of Labor regulation was not persuasive and thus undeserving of any deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944), the Second Circuit erred by failing to address the governing provisions of the Fair Labor Standards Act and by declining to give any weight to the Department’s interpretation of its own regulations.
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Supreme Court takes up "cat's paw" case
January 06, 2007 by Ross Runkel at LawMemo
It's called "cat's paw." A human resources manager decides to fire an employee she doesn't know, based mainly on information from a supervisor. The supervisor has a history of racism. So the question is whether the employer is insulated from liability because th