Adjunct Law Prof Blog

Mass: State statutory, tort claims were outside scope of arbitration clause

Warfield v Beth Israel Deaconess Medical Center, ___N.E.2d___ (Mass. Sup. Ct. July 27, 2009), is an interesting post-Pyett state law case. The court held that a former chief of anesthesiology was not required to arbitrate her statutory discrimination and retaliation claims under state law, The court concluded that the statutory claims did not fall within the scope of the arbitration clause contained in her employment agreement. Nor was the plaintiff required to arbitrate her common law tort claims for defamation and tortious interference with contractual relations, the court held, since these claims were wholly intertwined with the statutory claims and judicial economy dictated they be tried in the same proceeding.
As an initial matter, the high court stated employment discrimination claims arising under Massachusetts’ antidiscrimination statute are arbitrable, and the parties here correctly assumed as much. The issue, rather, was whether the parties contractually agreed to arbitrate them. That determination turned on the scope to be given the phrase "arising out of employment" in an employment arbitration agreement when a claim of discrimination is raised under the state statute, a matter of first impression for the court. The court held, consistent with the public policy against workplace discrimination reflected in the state statute, that any agreement by an employee to limit or waive rights or remedies conferred by the state statute is enforceable "only if such an agreement is stated in clear and unmistakable terms." Citing the competing public policy in favor of arbitration (as well as the US Supreme Court’s ruling 14 Penn Plaza LLC v Pyett), the state high court noted that, under its standard, the parties remain free to agree to arbitrate statutory claims—but they must do so unambiguously.

Mitchell H. Rubinstein

9th Holds Individual Managers May Face Exposure Under FLSA

Boucher v Shaw, __F.3d___ (9th Cir. July 27, 2009), is an interesting FLSA case. The 9th held that
individual managers can be liable for unpaid wages under the FLSA.  The lawsuit was against a hotel and its managers for unpaid wages under the FLSA and Nevada law. The managers acted, respectively, as the hotel’s chairman and CEO, labor/employment point person, and CFO. They each had an ownership stake in the hotel. The state law claim had already been disposed of: The Ninth Circuit certified to the state high court the issue of whether the managers could be held individually liable under state law; the Nevada supreme court ruled they could not, so the claim was properly dismissed. As to their federal claim, the appeals court noted that the FLSA defines an employer as anyone who acts "directly or indirectly in the interest of an employer in relation to an employee." This definition is not limited to the common-law definition, but instead stems from the circumstances of the entire economic activity. When individuals exercise control over the economic relationship, they are liable under the FLSA. Given the positions the managers held, the appeals court concluded they exercised this control and thus were liable. Moreover, citing precedent, the Ninth Circuit ruled that the bankruptcy proceedings in which the company was enmeshed had no effect on the claims against the individual managers.

MItchell H. Rubinstein

Modern Day Yellow Dog Contracts??

NY Times labor reporter Steven Greenhouse wrote an excellent August 29, 2009 article revealing the practice of Regis Corporation that is apparently encouraging employees, but not requiring them, to sign a document agreeing to insist on a union election. “In order to preserve my right to a secret-ballot election, and for my own protection, I knowingly and without restraint and free from coercion sign this agreement revoking and nullifying any union authorization card I may execute in the future.” Jeff Hirsch over at workplace prof blog believes that this is a violation of 8(a)(1) and the article quotes Stanford Law Prof Gould has indicating that this practice is very close to the infamous yellow dog contracts which have long been outlawed.

Though my gut tells me that Jeff is probably right, I am not so sure. Yellow dog contracts required employees agree not to join a union in advance. Here, the employees are only agreeing in advance to insist on a union election. The employees can still vote their conscience. Of course, any employer implicit threats may interfere with employee free choice. But if the employee is truly signing this card on his own, does that interfere with the laboratory conditions necessary for their to be a free and fair election?

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

Employee Free Choice Act Tabled??

The EFCA Report, a management side blog, reported on August 28, 2009 that Congress will not get to the Employee Free Choice Act this year. It quotes Senate Majority Leader Harry Reid as saying that the Senate has too many things on its plate. As the blog states:

Roll Call reports that Senate Majority Leader Harry Reid (D-NV) said Thursday that passing EFCA is no longer a priority for the Senate this year:

Speaking at a Las Vegas Chamber of Commerce, Reid said the chamber’s schedule is too crowded to consider the Employee Free Choice Act, otherwise known as “card check.”

"We have too many other things on our plate,” Reid said.

But even if the Senate’s schedule was freed up later this year, it is unlikely Reid would bring the bill to the floor short of major changes to the legislation. Republicans have universally panned the bill — as have a few Democrats — making it impossible for Reid to break a Republican filibuster.

The Roll Call piece refers to this Las Vegas Review Journal article covering Reid's address to the Las Vegas Chamber of Commerce.  It would seem that Reid's comments confirm recent speculation reagrding the timing of EFCA's treatment in the Senate.  Earlier this week, the AFL-CIO's Richard Trumka indicated the White House said they would not push EFCA until at least after the Senate resolved the current healthcare debate.  Senator Russ Feingold (D-WI) subsequently suggested that might not happen before the end of the year.

The passing of Senator Kennedy, of course, leaves the Senate with only 59 Democrates, one shy of the magic number of 60. Additionally, I have to believe that the Health Care Debate also has something to do with this decision-if such a decision has been made.

In any event, even if EFCA is tabled for now, I have to believe that it will be brought up for a vote at a later time during the Obama Presidency.

Mitchell H. Rubinstein

 

2 Member NLRB Cert Petitions

Workplace Prof Blog reported on August 26, 2009 that a cert petition has been filed in another 2 member NLRB decision case, the First Circuit's Northeastern Land Services case. The legal issue is that can the Board act when it has less than a quorum. Normally, the Board has 5 Members. But does the Board have the authority to act when they only have 2 Members?

Adjunct blog has been watching this issue for some time. Even though the President has nominated several individuals to the Board, this issue can repeat again-given the political nature of the NLRB.

This is a great law review topic for someone to examine.

Mitchell H. Rubinstein

Court used wrong analysis for hostile environment claim

Winspear v Community Dev, Inc, ___F.3d___(8th Cir. July 29, 2009), is an interesting case.
The 8th held that a lower court erred when it treated an employee’s hostile work environment claim as if it were a constructive discharge claim. The employee in this case had contended with the owner’s wife (the office receptionist), who told the employee that she could speak with the dead and that she had been communicating with the employee’s brother, who committed suicide four years earlier. On a daily basis, the owner’s wife told the employee that his brother was suffering in hell and that he would also go to hell if he did not "find God." Despite his frequent requests that she stop, she grew more insistent with his disinterest, and he grew increasingly uncomfortable at work. The employee spoke to the owner about his wife’s behavior, but the owner refused to remedy the situation; he merely confirmed that his wife could communicate with the dead and advised the employee to heed the wife’s advice. The employee filed suit under Title VII, claiming he was subjected to a hostile work environment due to religious bias. On the employer’s motion for summary judgment, the district court treated the employee’s claim as if it were a constructive discharge claim and required elements unnecessary to resolve a hostile work environment claim. The employee’s complaint did not allege constructive discharge and, despite the employer’s assertions, the employee never changed his pleadings so that his hostile work environment claim became a constructive discharge claim. Moreover, the district court never reached a specific finding as to whether the employee suffered hostile work environment discrimination. The district court recognized the employee may have raised a genuine issue of material fact about whether the conduct of the owner’s wife constituted a hostile work environment, but the court resolved the claim as though it were a constructive discharge. Hostile work environment and constructive discharge claims may be wholly distinct causes of action under Title VII, noted the Eighth Circuit.    
This case illustrates that sexual harassment is not the only form of unlawful hostile environment discrimination.
Mitchell H. Rubinstein

NY Times Picks Up On Poor Job Market For Lawyers

The New York Times ran a revealing August 25, 2009 article outlining the dim employment prospects for today's law students, here. As the article states:

This fall, law students are competing for half as many openings at big firms as they were last year in what is shaping up to be the most wrenching job search season in over 50 years.

For students now, the promise of the big law firm career — and its paychecks — is slipping through their fingers, forcing them to look at lesser firms in smaller markets as well as opportunities in government or with public interest groups, law school faculty and students say.

I know its easy for me to say, but to the law students who may be watching you need to double up your efforts and apply. Also, this article mainly deals with large law firms and there is a lot more to life than big law firms.

So, what should you do? You need to get to know attorneys. Go to bar associations, state and local meetings. Most welcome law students free of charge. Also, go to attorney conferences in your area of interest. I know this will take up your time, but it is necessary.

For additional information, see Professor Levy's earlier post on this blog, here.

Mitchell H. Rubinstein

Remembering Senator Kennedy

Senator Kennedy's wonderful career has been reviewed and discussed throughout the media and in households across America. One thing that I have not seen discussed is the fact that he has been a champion for children and the disabled. He was the sponsor of the 1975 IDEA law and its later amendments which guarantees disabled children a Free and Appropriate Education.

Thank you Senator Kennedy.

Mitchell H. Rubinstein

Age bias claim fails under cat’s paw theory and indirect method of proof

Martino v MCI Comm Servs, Inc, ___F.3d___(7th Cir. July 28, 2009), is an interesting case.
the 7th held that a 55 year-old employee discharged in a RIF presented insufficient evidence of age bias to survive summary judgment. The employee presented a "particularly weak cat’s paw case" because, even assuming his supervisor, who had referred to him as an "old timer," was prejudiced, "there were not one, but two layers of bias-free analysis" between his supervisor and the final decision, emphasized the court. The indirect method also was unavailing because the employee failed to show he was meeting his employer’s expectations or that younger workers were treated better. His performance excelled on only one occasion when he had the "good fortune" of being on staff for an historic deal, and his importance to his employer was waning since his skill set was becoming obsolete. A number of younger workers were also discharged, but six younger workers under his supervisor were retained, two of whom were of little aid to his claim since they were within ten years of his age. The other four, who were under 40, were difficult cases since they were "far from stellar performers," but the employee stood out as having lost the confidence of the sales teams and being poorly equipped going forward. Also stacked against him was the fact that he was hired only two years earlier by the same supervisor alleged to harbor prejudice. And, under the standard articulated by the Supreme Court in Gross v Fin Servs, Inc, he was required to show that age was the but-for cause of his discharge. At best, he could show only that his age possibly solidified the decision, wrote the court .

Tough case.

Mitchell H. Rubinstein

Pope's June 29, 2009 Encyclical Supports Labor Unions

On June 29, 2009, the Pope issued an Encyclical where he strongly supports unions and the need for workers to receive decent wages. Download Encyclical - Caritas in Veritate

In the below passage, the Pope also stresses the importance of unions reaching out to other workers who may be less fortunate:

While reflecting on the theme of work, it is appropriate to recall how important it is that labour unions — which have always been encouraged and supported by the Church — should be open to the new perspectives that are emerging in the world of work. Looking to wider concerns than the specific category of labour for which they were formed, union organizations are called to address some of the new questions arising in our society: I am thinking, for example, of the complex of issues that social scientists describe in terms of a conflict between worker and consumer. Without necessarily endorsing the thesis that the central focus on the worker has given way to a central focus on the consumer, this would still appear to constitute new ground for unions to explore creatively. The global context in which work takes place also demands that national labour unions, which tend to limit themselves to defending the interests of their registered members, should turn their attention to those outside their membership, and in particular to workers in developing countries where social rights are often violated. The protection of these workers, partly achieved through appropriate initiatives aimed at their countries of origin, will enable trade unions to demonstrate the authentic ethical and cultural motivations that made it possible for them, in a different social and labour context, to play a decisive role in development. The Church's traditional teaching makes a valid distinction between the respective roles and functions of trade unions and politics. This distinction allows unions to identify civil society as the proper setting for their necessary activity of defending and promoting labour, especially on behalf of exploited and unrepresented workers, whose woeful condition is often ignored by the distracted eye of society.

There is a whole body of legal literature concerning Catholic labor theory. My colleague at St. John's Law School, David Gregory, has written several important articles in this area.

Mitchell H. Rubinstein 

New law grads - the rich get richer and the poor get poorer

The National Association for Law Placement ("NALP") recently published its annual report on salary distribution for the graduating law school class of 2008 and the results are not pretty.  The report shows a dramatic and widening gap between the graduating "haves" and "have nots."

In the words of the NALP:

The salary distribution for the Class of 2008 presents the most dramatic bimodal distribution yet of starting salaries for recent graduates from law school. The sharp spike on the right reflects the fact that in 2008 the prevailing starting salary at large law firms was nearly uniformly $160,000. By contrast, the starting salary distribution for the class of 2007, while reflecting a spike at $160,000, also had an elbow that extended out over $145,000. (Click here to see the salary distributions for the Class of 2007 and the class of 2006.) Prior to 2000, starting salaries for new law school graduates were distributed along a more recognizable bell-shaped curve. (Click here for an article that traces the development of the bimodal distribution of starting salaries for American law school graduates.) Since that time, the peak on the right has marched steadily to the right while the peak on the left has remained more or less stationary. The new reality is that very few law school graduates actually make either the median or mean starting salaries, and so it is neither helpful nor accurate to describe starting lawyer salaries using those modalities. (For the Class of 2008, the median starting salary, the red line on this graph, was about $72,000 and the mean starting salary was about $92,000.) It is important for anyone considering a legal education to understand that half of all starting lawyer salaries are less than $72,000 and in fact 42% of them are between only $40,000 and $65,000. By contrast, 23% of all salaries reported were $160,000.  Of course, based on recent developments in the marketplace, for the classes of 2009 and beyond the sharp spike over $160,000 is likely to soften and fall back to the left, and we may even see some flattening of this distribution curve over time.

Keep in mind that these figures are more than a year old, reflecting the stats for the class that graduated more than 12 months before the job market completely tanked.  The picture will undoubtedly look a whole lot worse next summer when the salary distribution for the class of 2009 is published.

(jbl)

Lifetime health benefits are vested, but scope of benefits can be modified

Reese v CNH America, ___F.3d___(6th Cir. July 27, 2009), is another important employee benefits case coming out of the 6th circuit. An employer promised in a collective bargaining agreement to grant retirees healthcare for life, the Sixth Circuit held. However, a lifetime grant of benefits does not mean the scope of those benefits must remain intact. This suit was filed by retirees after the employer eliminated their PPO health plan and imposed a managed care plan. The contract and related documents were silent as to subsequent modifications to the benefits, and the manner in which the parties had applied the contract provisions suggests the parties contemplated "reasonable modifications," the court reasoned. Thus, to the extent the district court held the benefits must be maintained precisely at the level provided for in the bargaining agreement, the court was reversed. The case was remanded for the lower court to determine what types of changes are permissible.

Mitchell H. Rubinstein 

Arbitration Fee Splitting Agreements

There is an excellent July 31, 2009 New York Law Journal article on the legality of arbitration agreements which contain fee splitting agreements, available here (registration required). The article concentrates on New York law and in particular,  Brady v. Williams Capital Group, L.P., 2009 WL 1151322 (1st Dept. April 30, 2009), where the Appellate Division, First Department, faced the novel situation where a terminated employee wanted to compel arbitration pursuant to a provision of an employer-imposed plan, but sought to invalidate its cost-splitting provision. The First Department held as a matter of contract interpretation that the cost-splitting provision trumped any AAA rules argued (though not ultimately held) to be to the contrary. It invalidated the cost-splitting part of the arbitration provision, but not the arbitration provision itself, and therefore compelled arbitration, with the employer paying.

Mitchell H. Rubinstein

2d Holds employment-related grievances may relate to matters of public concern

Sousa v Roque, Jr., ___F.3d___(2d Cir. August 21, 2009), is an important decision to be aware of. The curt held that  “The speaker’s motive is not dispositive in determining whether speech is on a matter of public concern.”  The court reversed summary judgment to the Connecticut environmental protection agency on a former employee’s First Amendment retaliation claim. The lower court erred in its reasoning that the employee’s speech, related primarily to complaints about workplace violence, did not address a matter of public concern solely because he was motivated by employment grievances. This holding does not negate the fact that speech on a purely private matter—to redress personal work-related grievances—is speaking only on matters of personal interest and does not address a matter of public concern.. “We make clear today, however, that it does not follow that a person motivated by a personal grievance cannot be speaking on a matter of public concern.”

Mitchell H. Rubinstein

Transgender substitute teacher retires over lack of assignments

After William McBeth underwent sex reassignment surgery and became Lily McBeth, the two southern New Jersey school districts were she had been teaching as a substitute decided to keep her on. However, she got only a handful of assignments since then and is resigning in frustration. Before her transition from male to female in 2005, McBeth said she averaged 15 to 18 assignments a year for elementary students in the Eagleswood school district, and an additional 16 to 20 a year in the Pinelands Regional School District teaching high school students. Afterward, she said, she only got two assignments per year at both districts. McBeth, 75, has sent a letter to the Eagleswood Board of Education saying she would not return as a substitute this fall, and plans to give similar notice soon to the Pinelands district. Deborah Snyder, the Eagleswood schools superintendent, said the district wanted McBeth to return this fall. She denied bias was involved, adding the district has hired a permanent substitute to report to work each day and fill in as needed.

While some parents objected at public meetings to McBeth continuing to teach after becoming a woman, many students were supportive. Mara Keisling, executive director of the National Center for Transgender Equality, said McBeth's experience is a common one for transgender employees. A survey her group helped to conduct this year of 6,500 transgender Americans found 91% had faced bias at work because of their transgender status. "I could sue them over the violation of my medical privacy rights, but what would that accomplish?" McBeth said. "I'm not in this for the money, and I have to be able to sleep peacefully at night. I'm just going to enjoy the rest of my life."

Source: Associated Press, 7/22/09, By Wayne Parry

Concerns about principal’s skills and judgment justified non-promotion

A U.S. district court in Virginia has dismissed a high school principal’s Age Discrimination in Employment Act (ADEA) suit. During plaintiffs final year as principal of he applied for the position of assistant superintendent of operations, but the Augusta County School Board (ACSB) chose a younger principal for the position. The younger principal did not hold a doctorate as did plaintiff, but he had more experience as a principal. The board cited concerns about plaintiffs ability to work without supervision, his management skills, and his professional judgment. During the second half of Hill’s last year a series of incidents occurred at the school that convinced the board that he should not return as principal. After his contract was not renewed, Hill transferred to the position of truancy officer out of the district’s central office. His application for the principal’s position at another high school in the district was rejected because of his prior performance. Plaintiff sued, alleging he had been denied the promotion to assistant superintendent and principal of the other high school on basis of age in violation of the ADEA.

The court granted the board’s motion for summary judgement, finding that it had stated legitimate, non-discriminatory reasons for rejecting plaintiff's applications and that he had failed to demonstrate that its reasons were a pretext for age discrimination. Noting that an employee bring an ADEA claim must show that “the adverse employment action would not have occurred but for the employer’s discriminatory motive,” the court found that because Hill offered no direct evidence of age discrimination, his claim must proceed under the alternative burden shifting-scheme established by the U.S. Supreme Court in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). The court rejected plaintiff's argument that he was the more qualified candidate for the assistant superintendent position by virtue of his doctoral degree and that the school board’s explanation was pretextual. Under the ADEA, “an employer may place more value on any job-related qualification it chooses, so long as it does not discriminate against a protected individual on account of age.” As for the principalship of the other high school, the court found that this decision came after “Hill’s self-proclaimed worst year of his career” and was made by the very same who had promoted Hill to his first principalship.

Hill v. Augusta County Sch. Bd., No. 08-0061 (W.D. Va. 2009)

A local newspaper article about this case appeared in the Waynesboro News Virginian, 7/22/09, By Tony Gonzalez

Mitchell H. Rubinstein

 

Fourth Annual Colloquium on Current Scholarship in Labor & Employment Law, September 25-26, 2009, Seton Hall University School of Law

The 4th Annual Conference on Current Scholarship In Labor and Employment Law is on Sept. 25 and 26th at Seton Hall Law School in Newark, N.J. I went to last years conference in San Diego and it was wonderful. It is a great opportunity to showcase your scholarship in an informal manner. Additionally, typically, this conference attracts several of the giants in labor law. If you have a paper to present, this is a wonderful place to present it. You could also attend without submitting a  paper. Registration is free, but CLE credit is not provided. Additional information can be found here.

I am planning to attend this years conference and present a paper.

Mitchell H. Rubinstein

Just how bad is the job market for recent grads?

Here's a blog I found called "Big Debt, Small Law:  Dirt poor lawyers in a filthy rich town" written by a recent (top 1/3) grad of a second tier law school who chronicles his experiences working as a contract lawyer in NYC after failing to find a full time law job that pays a living wage.  The blog entries are pretty bitter and cynical to say the least - and be forewarned that they are peppered with lots of strong language - but if you're interested in seeing the world through the eyes of a member of the new class of underemployed, overly indebted law grads, it's a harrowing read.  

Here's an excerpt:

In a couple short weeks, a new wave of hapless lemmings will crack open the shrinkwrap on those heinously overpriced casebooks, boot up their laptops for some heated note-taking, and commence their voyage down the road of America’s most overrated, miserable, and saturated industry: the practice of law. A pompous, overpaid professor will saunter in and begin blathering and bullying them about some obscure case, reveling in her power like a college calculus student picking on the 4^th grade arithmetic class. So begins another bumper crop in this endless harvest of shame.

Hat tip to Above the Law.

(jbl)

Specious law suit of the week (or perhaps the year): N.Y. plaintiff brings claim to establish he is JFK/Marilyn Monroe "love child"

You read that right - despite the fact that MM was constantly in the public eye yet not a single photo exists showing her pregnant, a plaintiff recently filed a complaint with a New York federal district seeking to establish that he is the "love child" of the former U.S president and his rumored paramour in order to, presumably, squeeze the Kennedy family for some cash.  What's even more astounding, according to this story in the Law.com blog, is that the plaintiff found an attorney to take the case although it was later dismissed by U.S.D.C. Judge William H. Pauley.  And that's the point of the Law,com editorial; whether the recent decisions in Ashcroft v. Iqbal (pdf), 129 S. Ct. 1937 (2009) and Bell Atlantic Corp. v. Twombly (pdf), 550 U.S. 544 (2007) require courts to entertain claims that are so obviously implausible.  You can read the rest of the editorial, co-written by Joel Cohen, a partner at NYC's Stroock & Stroock & Lavan and adjunct professor of law at Fordham, here. 

(jbl)

Rare Court Decision Overturns N.Y. Civil Service Section 75 Decision

Matter of Penderleith v. Lakeland Central School Dist., ___A.D.3d___(3d Dep't. Aug. 18, 2009), is a rare case where a court overturned the decision of a Civil Service Section 75 Hearing Officer whose decision was adopted by the appointing authority. Why? Because the employee was found guilty of menacing and/or intimidating and/or threatening to the Principal and/or Assistant Principal and that factual finding was not supported by the evidence. As the court explained:

The behavior referred to in charge II is that, "while leaving or immediately upon leaving the Principal's office, [the petitioner] pulled a putty knife or similar instrument out of his back pocket and held it in the palm of his hand and did so in a manner that was menacing and/or intimidating and/or threatening to the Principal and/or Assistant Principal causing them to fear for their safety." The testimony of the respondents' witnesses was that, when the petitioner pulled out the putty knife and at all times thereafter, his back was to the principal and assistant principal, he was at a distance from them of never less than four feet, the putty knife was held rigidly at his side, he walked out of the office and down the hall without turning, and he said nothing at all once his [*2]meeting with the principal was over, and nothing threatening during the meeting. Under these circumstances, the record does not establish that the petitioner acted in any way that could be viewed by a reasonable person as threatening, menacing, or intimidating (see Matter of Dulanto v Nicoletti, 21 AD3d 553, 554).

The court did uphold the first charge of misconduct, but in light of the above, remanded it back to the appointing authority for the imposition of a penalty. 

Mitchell H. Rubinstein