Posted by marykeating on June 29, 2010 under Interesting cases | 
The Supreme Court handed down a decision earlier this month that invalidated a large number of decisions made by the National Labor Relations Board, New Process Steel v. National Labor Relations Board, The Board investigates complaints against employers regarding union activity, certifies union elections, and has similar duties generally relating to organized labor. The Board is supposed to have five members, and a majority vote is enough. Unfortunately, for two years the Board has only two members. This is politics – when the third member’s term expired in 2007, when President Bush was a lame duck, no action was taken. The Board members are designed to be from different political parties, and if no one is nominated, or the Senate does not confirm, vacancies can linger. This happens in judicial openings, too, but in this case the fact that the Board made decisions with only two members meant it did not have a quorum, or majority, and therefore those decisions are no good.
The Senate responded by quickly confirming two more nominees, one a Republican former congressional staffer, and one a labor lawyer who had been given a recess appointment awaiting full action by the Senate, bringing the Board back to five.
The Supreme Court’s decision theoretically could require the rehearing of scores of cases. In the real world, though, the parties to the disputes got the decision and moved on, and will have no incentive to reopen the old wounds. In some cases, the employee might be in a different job, in some the challenged practice has been abandoned, and in all cases the cost to bring the case again will have to be considered. Still, more than 70 cases were pending in court over the Board’s actions; these will be returned, giving the newly invigorated Board plenty to do.
Posted by marykeating on June 20, 2010 under Interesting cases |
In Krupski v. Costa Crociere S. P. A., the Supreme Court decided that an inadvertent failure to name the correct party did not close the courtroom door to the plaintiff, so long as the defendant actually knew that the controversy was pending, and that it would have been named except for the plaintiff’s mistake.
This shifting of the blame for the mistake in getting a party’s name right is in line with the decades’ long departure from very formalistic legal pleading requirements, a gradual but steady progress. Still, missteps can doom cases. For example, someone is named as a defendant, but the plaintiff does not know that the defendant is dead; if the estate is not brought in within a short time period, the claim is unenforceable.
In the case before the Supreme Court, a different, but even more common, variation was in play. A cruise ship passenger was hurt on board. Her ticket required her to sue within a year and limited her damages to $75,000. While the back of the ticket identified the cruise ship owner as an Italian corporation called Costa Crociere S.P.A., the front of the ticket, and the marketing for the cruise, all referred to Costa Cruise Lines. Costa Cruise Lines negotiated with the injured passenger, but when that was unsuccessful she filed suit against Costa Cruise Lines. After the statute of limitations expired, the company defended on the basis that it was merely the marketing and sales agent and had no responsibility for the operation of the ship.
The Supreme Court’s opinion, written by Justice Sotomayor, rejected the gamesmanship urged by the defendant. The plaintiff’s failure to understand the different statuses of the parties was not the issue. Instead, the Court focused on the defendant. The defendant knew that the case was pending, and knew that the plaintiff had not caught the owner/marketing distinction in the corporate names. That knowledge prevented it from evading responsibility for defending the case.
This issue may seem like it belongs in civil procedure nerd kingdom, but these kinds of mistakes can arise easily. As Justice Sotomayor pointed out, the cruise line’s ticket and website invited confusion over the identity of the cruise ship owner. Similar corporate names can easily lead someone to sue the wrong person. A business’s website and other marketing materials may use a company’s trade name, not the corporate name. This practice is common with franchised businesses, whose goodwill lies in the brand of the sandwich or hotel operation, not the corporate owner’s name. The Supreme Court (unanimously) got this right
Posted by marykeating on June 19, 2010 under Workplace privacy |
As reported here a few months ago, the Supreme Court was poised to take on a controversy which, depending on the breadth of the opinion, could have ramifications for the vast majority of employees.
The case involved a California SWAT team member who used his department-issued pager for personal use. Although the department policy stated that the pagers belonged to the department, and that the individuals had no right to expect privacy in their use, the reality had altered over time. Quon’s supervisor told him that he must pay for all over limit charges on the pager to avoid an audit. Quon reimbursed the city every month.
The department decided to audit the pager use, since a number of employees were exceeding the limits on their text messaging, leading the brass to think that people were using the equipment for personal use during work hours. In the audit, they discovered that Quon had sent (and received) sexually explicit text messages with his estranged wife and his girlfriend. He was disciplined. Both women, as well as a friend of Quon’s whose personal messages had been intercepted, joined him in the suit against the department for violation of their privacy rights.
The Supreme Court elected not to address directly the extent to which r a public employee enjoys a privacy right in this setting. Under the Fourth Amendment, a person has the right to be free of unreasonable searches and seizures by the government. The Supreme Court unanimously concluded that the search of the pagers’ text messages was acceptable. “Because the search was motivated by a legitimate work- related purpose, and because it was not excessive in scope, the search was reasonable . . .”
The pager user in this case, together with other groups filing briefs on his behalf, urged the Supreme Court to approach the case from the vantage point of the privacy concerns implicated by any employer intruding on an employee’s private messages. But the Supreme Court often (though by no means always) prefers to limit its decision to a narrow point of law facing it. Here, a public employee whose on the job messages were likely to be scrutinized after a typical SWAT team encounter had an insufficient expectation that his messages would not be reviewed.
Private sector employees will not have the ability to complain that they were subjected to an unconstitutional search and seizure when their employers review their email or text messages. With the proliferation of electronic communication, it is more likely that state laws will need to be enacted to address these issues.
Posted by marykeating on June 12, 2010 under Uncategorized |
An interesting article from the management point of view bemoans the ease of posting a critical, perhaps anonymous, and seemingly immortal review of a company or individual boss. Of course, some of the reviews are good, but if you look at one of the sites mentioned, www.jobvent.com, there are some well-known companies with very low ratings.
From an employee’s point of view, it looks like a way to even the score. Someone treated poorly can anonymously post a rant, or score the company’s working conditions. Maybe the employee can save others from such a fate. Maybe the company will listen. On the other hand, maybe the employee will get fired. In an extreme case, maybe the employee will get sued.
Is it a good idea to use these sites? The frontiers of social media are wide open and subject to unclear rules. Anonymity on the internet is never a sure bet. Can a court force a site to reveal the identity of “anonymous” posters? Will the site fight that battle to protect your identity? Is it going to haunt you, whether you try to remain anonymous or reveal yourself?
I nearly always recommend that the unhappy former employee take the high road, and hope that the utter professionalism that he or she shows will win him a great new job, and the admiration of everyone in his network. This conservative approach addresses the economic and some of the emotional aspects of the end of the employment relationship. I personally believe that holding onto resentment and the wish for revenge leads to a self-destructive emotional toll.
But still. Read fired lawyer Edward Harrington Heyburn’s blog at http://levinsonaxelrodreallysucks.com/, for the poster child example of revenge. His former employer sued him over the blog; he’s fighting back in court and on his continuing blog, with the zeal of someone determined to bring about justice, and to insult his old bosses at every step (with a great deal of sometimes raunchy humor. This guy is spending a lot of time on his revenge – he left the firm in 2004! – but it also looks like he’s having a lot of fun. I hope so, anyway.
Posted by marykeating on June 11, 2010 under Court news |
A Senate committee has approved the elevation of two Marylanders to the federal bench. Judge Ellen L. Hollander, of the Maryland Court of Special Appeals, and Magistrate Judge James K. Bredar now must be confirmed by the full Senate. Judge Hollander would take Judge Andre Davis’s place, after his promotion to the Fourth Circuit. Judge Bredar would fill the seat of Judge Frederick Motz, who has taken senior status. He will still hear cases, but perhaps fewer of them.
Neither of these appointments is controversial. Both judges have solid credentials and good judicial reputations. Senator Cardin, who is on the Judiciary Committee, praised them highly.
The major question is when the Senate will have time to consider them, since the summer may be consumed with the nomination of Elena Kagan to the Supreme Court. The Senate can be quite slow in considering judicial appointments, and there are more than twenty lower court nominations made prior to Judges Hollander and Bredar.
Posted by marykeating on June 4, 2010 under Sex-based discrimination |
The New York Times got ahold of what should have remained a confidential memorandum from attorney to client. WalMart’s attorneys at Akin Gump warned the giant retailer fifteen years ago that its demographic statistics and haphazard practices of posting open jobs posed a danger. The survey by the law firm revealed that men were five and a half times as likely as women to be moved into management positions. There, they earned more than women.
As reported here before, the danger signs came together with a massive class action by women claiming a systematic pattern of gender-based discrimination. A judge in the class action will have to decide whether the memorandum can come into evidence. It would be a fiery bit of evidence to be sure, but it does not appear that WalMart waived the protection of the attorney-client privilege. WalMart also claims, in its response to the revelation of the memo, that it has improved its practices and the 15-year old report is too stale to pay attention to. The class action will proceed unless the Supreme Court can be convinced to reverse the decision to let all the claims proceed together.
Posted by marykeating on June 3, 2010 under Economic situation |
Robert Reich contributed an op-ed piece for The New York Times yesterday, commenting on the rising numbers of entrepreneurs starting new businesses. American, yes? A symbol of optimism for the economy, right? Well, maybe not.
The age range of the entrepreneurs, and other anecdotal information, make analysts believe that many of these new ventures are makeshift substitutes for what their founders really want, a job. That is, people having trouble finding a new job have hung out their shingle as a consultant. Some are rehired by their old companies as temporary or free-lance personnel, usually earning less and nearly always ineligible for benefits. Others are hampered by the credit environment and the teeming numbers of unemployed people from making at true go of it. In the meantime, by characterizing themselves as “self-employed” these laid off workers are often not in the unemployment count.
Under Maryland law, though, a “self-employed” individual can collect unemployment benefits for the weeks that he or she is not actually making any money from the new business. In the meantime, the effort to make self-employment work may pay off even for people who want a steady job, not to create a startup company. To get contract work, one has to fan out into the network and meet new people; those contacts may lead to employment. Before that happens, the resume does not look as empty of enterprise as does a gap in dates.
