Posted by marykeating on December 6, 2011 under Federal wage and hour law, Interesting cases | 
The Fair Labor Standards Act has governed the provision of minimum wages and overtime pay since the 1930s. A problematic area remains the “exemptions” to overtime entitlement. One exemption provides that “outside sales” staff need not be paid overtime pay. An employee working in an office on the phones is not exempt. But someone traveling around to make sales or obtaining orders or contracts for services or use of facilities is not entitled to overtime. Perhaps the original idea was that the outside sales people were motivated by their commissions, not the promise of an hourly wage.
Modern life has led to many hybrid type jobs. One is the pharmaceutical sales representatives employed by drug companies to introduce physicians to their products. Sales representatives have urged courts to allow them overtime, on the basis that their work is primarily promotional. The Supreme Court has agreed to address the question: “Whether the Fair Labor Standards Act’s outside sales exemption applies to pharmaceutical sales representatives.” The case is called Christopher v. SmithKline Beecham.
The case comes up in the context of a disagreement between Courts of Appeals. Some agree with the Department of Labor interpretation that pharmaceutical sales representatives are entitled to overtime if they work more than 40 hours in a week. They are not selling to physicians, they are attempting to influence their patterns of prescription. The pharmaceutical industry is also interested in a resolution to this issue.
Posted by marykeating on September 29, 2011 under Interesting cases, Religious discrimination |
It’s almost the first Monday in October, and the Supreme Court’s first week includes a religious employer case. These issues have been percolating for a few years, and both the Fourth Circuit and Maryland recently weighed in with decisions.
In the Supreme Court case, a teacher at a Christian school charged that her termination violated the Americans with Disabilities Act. After several years as a teacher of both secular and religious courses, Cheryl Perich developed narcolepsy, and missed several months of the school year. The school refused to permit her return, and she threatened to sue under the ADA. The school then contended that her suit threat contravened the religious principles of the Evangelical Lutheran sect.
The case presents an interesting intersection of the religious exemption problems that come up in employment cases. One exemption is afforded institutions to permit employment decisions based on religion. The exemption furthers freedom of religion as well as the separation of church and state. A teacher of Jewish studies can be fired by his school for doctrinal reasons, or for not adhering to certain tenets of the faith. But in this case, the teacher claims two things: one, that she was fired in retaliation for taking time off for her disability, and complaining of her treatment; and two, if the reason was religion-based (an avoidance of conflict, for example), she should not fall within the ministerial exemption because, for one reasons, she taught secular subjects for the most part, with a minimal religious component.
Posted by marykeating on August 17, 2011 under Interesting cases, Wrongful termination, retaliation |
The Court of Appeals just released a decision reinstating a state employee’s wrongful termination case. Tyson Lawson, a member of the Bowie State University Police Department objected to an arrest that he believed was constitutionally defective. He was fired for violating the chain of command in his reporting of the incident and his suspicions. He lost at his administrative hearing because the administrative judge believed that his report of wrongdoing was motivated by his personal interest in changing the department’s culture, rather than his reasonable belief that his disclosure evidenced a violation of law, abuse of authority, gross mismanagement, gross waste of money, or a substantial and specific danger to public health or safety.
The State’s highest court rejected that analysis. The employee need not “possess a purely altruistic motive for the disclosure.” The public welfare is served by having employees disclose violations of law and waste of public money. To obtain protection under the whistleblower law, “an employee must prove that a reasonable person would believe the disclosure exposes a violation,” not that the violation actually occurred.
Whistleblowers may well be the people who want changes to the department, or to government as a whole. They are not altruistic bystanders, they are on the inside, and usually in a better position to uncover abuses. They are probably well aware that blowing the whistle will cause them problems. By disallowing a focus on their motivations, the Court adds some welcome protection for people willing to speak out.
Posted by marykeating on July 21, 2011 under Interesting cases, Wrongful termination |
The Maryland Court of Appeals turned down an employee seeking damages after her employer terminated her. Debra Parks, a sales representative for a pharmaceutical firm, contended that she was fired in retaliation for her complaints about the company’s illegal marketing activities about a new pain drug, including the company’s alleged failure to tell the Food and Drug Administration of the results of a study. The complaint was dismissed before any discovery or trial. The court held that the employee could not bring a wrongful termination claim because she did not identify any clearly defined mandate of public policy that her termination violated.
The Court of Appeals explained again that wrongful termination is rarely a successful claim. It often comes up where an employee is put between the legal rock and hard place: when she has to choose between violating the law and keeping her job. So, when an employee was fired for reporting child abuse, and she was under a legal duty to report the abuse, that was wrongful termination. When an employee refused the property manager’s directive to trespass in leased apartments and snoop through their private papers, her termination was wrongful; another who refused to have sexual intercourse with an employee was protected; to have sex to keep her job was tantamount to engaging in prostitution.
Contrary to what many employees believe, or feel should be the case, whistleblowing on corporate wrongdoing is usually not a protected activity. Unless the employee reports criminal activity to the appropriate authorities, and is fired for that report, the firing goes unredressed.
The allegations brought by Debra Parks had plenty of support. In fact, Ms. Parks also notified the United States government of violations of federal law involving the same drug, and shared in a $85,000,000 payment made by the company to settle the claims with the federal government and some state Medicaid programs. The dismissal of her wrongful termination claim had to do with the lack of a crystal clear public policy protecting the employee, rather than whether the employer was doing the right thing.
Posted by marykeating on April 22, 2011 under Interesting cases, Religious discrimination |
The Supreme Court has decided to hear a case involving the extent to which religious employers are free from the laws forbidding discrimination. In a number of cases, charges of religious discrimination have failed where an employee’s duties have been held to be central to the church’s mission. For example, preachers have been unable to ask a court to put them back in their jobs. Other church employees, such as chaplains and directors of church choirs, cannot seek redress in the courts if their duties are too directly linked to the church’s teachings, because then the courts of the United States would get too entangled in religion, in violation of the First Amendment. Teachers in religious schools, however, often are permitted to sue, since their primary duties relate to non-religious subjects.
In the new case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, an elementary school teacher was fired after she took leave under the Americans with Disabilities Act. Upon her attempted return, the school decided that she may not be ready, and reqeusted her resignation. She refused to resign, as instructed, and threatened to sue. She and the EEOC claimed her termination was illegal retaliation; the employer stated it was her insubordination, which violated church doctrine. The teacher contends that her job did not involve any pastoral or missionary duties, and her religious teaching duties were minor compared with the rest of her job. Importantly, the job she did was not required to be held by a Lutheran. In the Fourth Circuit, the court long ago decided that churches’ “t]heir employment decisions may be subject to Title VII scrutiny, where the decision does not involve the church’s spiritual functions.” Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1171 (4th Cir. 1985)
It will be interesting to see if the Supreme Court draws a line between the kinds of discrimination alleged in deciding when to offer insulation to a church. Contrast these two situations: a religious teacher complains about sex discrimination because she had a baby out of wedlock, contrary to church teachings. A church organist is told he is too old to do the job anymore. In the first case, it makes sense for the court to stay out of the way. In the second case, it makes less sense to link age discrimination with a church’s right to determine its own doctrine.
This case will not be decided before the Court breaks in June for summer hiatus.
Posted by marykeating on January 20, 2011 under Interesting cases |
Everyone is addicted to electronic mail these days, and that is understandable. Email lets people quickly send off a note, a long letter, a copied link or other text. The same thing can be copied to multiple people, forwarded, printed, saved. A lost piece of paper can be a disaster; with an email, just reprint it.
The same conveniences can lead to unintended consequences. A California court just allowed an employer to collect and use emails sent by an employee through her work account. The employee surely thought that her own email address gave her some level of privacy, and that the communication would be privileged. The privilege of confidentiality between an attorney and client privilege can be destroyed if the privacy is not maintained. Once destroyed, a court may hold that none of the attorney-client communications are privileged, whether they were made by email or otherwise.
Most employers have policies about email use at the office. Many policies say that email can be used only for business purposes, others allow personal use within reason. The premise behind these policies is that the employer owns the computer, the network, and the email address. It could be held liable if email is used to perpetrate libel, to harass, or to spread pornography. Some employer policies are enforced, some don’t seem to be. The employer retains the ability to read emails, though, and for that reason employees need to be careful. Beyond the simple idea of keeping a line between one’s personal and work life, communications between an employee and her lawyer can be intercepted if the work email is used. This is a major threat in an employment dispute.
A New Jersey court recently held that communications sent over an employer’s network were privileged, where the employee had used a personal email account, and the communications were intercepted only because they physically went through employer-owned equipment. Before the employee won this issue, however, the employer probably read the emails. The best practice is to use personal email on a personal computer, where the account password is known to no one else.
Posted by marykeating on October 29, 2010 under Interesting cases, Sex-based discrimination |
The Supreme Court will hear oral arguments on November 10 in a reverse discrimination case. The issue is when a foreign-born child born out of wedlock to a non-citizen and an American parent is to be considered a United States citizen. Under the law then in effect (but since changed to be gender-neutral), the child can be considered a U.S. citizen only if the citizen parent had resided continuously in the United States for a period of a year (for a mother) or five years (for a father) after the age of 14. Since the rules were less strict for a mother than for a father, a child denied citizenship and deported claimed gender discrimination.
Since this immigration double standard law has changed, the Supreme Court must have some interest in addressing the subject of gender discrimination and/or immigration policy. Often in the past breakthroughs in sex discrimination standards have arisen when cases were brought by men. For example, the cases that established “intermediate scrutiny” for government-imposed sexual distinctions arose in the context of males being deprived of some right given to females. In Craig v. Boren, a man successfully challenged a state law that set a higher legal age for drinking for men, at 21, than women, at 18. The Supreme Court required that a gender classification used by the government must be designed to meet “important” ends and that the means employed are “substantially related” to the ends. Was it a coincidence that the law was disadvantageous to men? A few years later, the Supreme Court added to the standard, saying that a party defending the law carry the burden of “exceedingly persuasive justification” for the classification. That case involved a man seeking to be admitted to a nursing program, that had excluded them. (Mississippi Univ. for Women v. Hogan.)
If this case is debated on the gender issue, there may be interesting developments, or at least helpful language, devoted to whether men and women are equally parents. In the workplace, as in the larger society, this is still an area where inequality is taken for granted.
Posted by marykeating on September 1, 2010 under Interesting cases, Sex-based discrimination |
Wal-Mart has appealed to the Supreme Court the Ninth Circuit’s green light for the massive class action suit. As reported here earlier, the class action could lead to disposition of 1.5 million claims by women blocked from promotional opportunities. The petition for review asks the Supreme Court to disallow a class action where each worker’s damages have to be separately calculated, and also complained of the sheer mass of the case. The petition makes two main arguments. One is based on the proper interpretation of the federal rule governing class actions. The other argument contends that the plaintiffs’ proof is eased by this method, and that trying a case in this way deprives WalMart of the right to trial by jury.
Lyle Denniston of Scotusblog predicts that the petition will be decided this coming term. If it is granted, then the parties will brief the issues, which are historic. There may not be enough time to conclude the case by the end of the coming term.
One easy prediction: the fact that there are now three women on the Supreme Court will be mentioned frequently (did you read it here first?)
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
