Thursday, July 16, 2015
On July 15, 2015, Wage and Hour Administrator David Weil issued Administrator Interpretation No. 2015-1 entitled "The Application of the Fair Labor Standard's Act's "Suffer or Permit" Standard in the Identification of Employees Who Are Misclassified as Independent Contractors", Download DOL
There are no surprises here. The DOL simply summarized the applicable case law that applies the multiple factor economic reality test as opposed to the common law right to control test to determine employee status:
Ultimately, the goal is not simply to tally which factors are met, but to determine whether the worker is economically dependent on the employer (and thus its employee) or is really in business for him or herself (and thus its independent contractor). The factors are a guide to make this ultimate determination of economic dependence or independence.... The Supreme Court "has consistently construed the Act 'liberally to apply to the furthest reaches consistent with congressional direction,' recognizing that broad coverage is essential to accomplish the [Act's] goal. . . ."
The DOL makes no mention of the fact that there are at least two other tests utilized in other employment employment statutes (a hybrid economic reality test and common law right to control test; statutory purpose test) or any of the scholarly literature concerning employee status.
While the DOL was focusing on the FLSA and on some level it is understandable why they simply focused on the economic reality test, I believe that some mention of these other tests was warranted because employers should not assume that simply because an individual is an employee under the FLSA does not mean that he or she is going to be an employee under Title VII, where for example, a hybrid test is often utilized.
Several years ago, I wrote a law review article which addressed many of these issues. Employees, Employers and Quasi Employees.
Mitchell H. Rubinstein
Monday, February 10, 2014
Human Rights Watch ("HRW") today announced it would be opening a clinic at South Texas College of Law in Houston this April. HRW provides pro bono legal representation to asylum seekers. This office will be the organizations first beyond the East Coast. From the HRW press release:
Human Rights First’s award-winning pro bono asylum program is built on a unique partnership with lawyers at private firms. Human Rights First’s expert legal team recruits, trains, and mentors lawyers who volunteer their time to help refugees navigate the complex bureaucratic process of seeking asylum protection through the U.S. immigration system. Every year, Human Rights First helps more than 700 refugees with free legal help donated by private law firms. Last year, this program leveraged nearly $30 million in services to aid indigent refugees in need of protection. The organization wins more than 90% of its cases.
The full press release is here.
Thursday, October 10, 2013
The Fifth Circuit Court of Appeals held last week an injured seaman may recover punitive damages for the employer's willful and wanton breach of the maritime duty to provide a seaworthy vessel. The case is McBride v. Estis Well Service, L.L.C., No. 12-30714 (5th Cir., October 2, 2013).
The court's central legal principal, citing Atl. Sounding Co. v. Townsend, 557 U.S. 404 (2009), is "if a general maritime law cause of action and remedy were established before the passage of the Jones Act, and if the Jones Act did not address that cause of action or remedy, then that remedy remains available under the cause of action unless and until Congress intercedes." In McBride, the court found, and Estis did not dispute that both the cause of action (unseaworthiness) and the remedy (punitive damages) were established before the Jones Act became law. The court determined that the Jones Act does not address unseaworthiness or limits the remedies for that claim. The court concluded that punitive damages are available to seamen asserting and unseaworthiness claim where willful and wanton conduct is proven.
Tuesday, July 30, 2013
Rebecca J. Rosen at The Atlantic has a telling story on how copyright laws have caused books from the mid-20th Century forward to "vanish." The story is "The Hole in Our Collective Memory: How Copyright Made Mid-Century Books Vanish." Rosen concludes:
By this calculation, the effect of copyright appears extreme. Heald says that the WorldCat research showed, for example, that there were eight times as many books published in the 1980s as in the 1880s, but there are roughly as many titles available on Amazon for the two decades. A book published during the presidency of Chester A. Arthur has a greater chance of being in print today than one published during the time of Reagan.
Thursday, July 18, 2013
Tuesday, June 4, 2013
In a published opinion, the a Fifth Circuit Court of Appeals panel last week, in a sex discrimination lawsuit brought by the EEOC, reversed summary judgment for an employer that allegedly discharged an employee for expressing milk while at work. The lower court earlier found, as a matter of law, that discharging a lactating female employee for expressing milk does not constitute sex discrimination. The Fifth Circuit held that discriminating against a woman who is lactating or expressing breast milk violates federal sex discrimination laws.
The opinion is EEOC v. Houston Funding II., Ltd., No. 12-20220 (5th Cir., May 30, 2013). The opinion, by Judge Grady Jolly, was unanamous, with Judge Edith Jones concurring. The Houston Chronicle's story on the case adds this interesting tid-bit.
"You would think there would be reported case law on this," said Jim Sacher, regional attorney for the Equal Employment Opportunity Commission in Houston, which is handling the case and its appeal on behalf of Venters.
But this is the first definitive decision in the country that firing someone because of lactation is an example of sex discrimination, Sacher said.
Tuesday, March 26, 2013
The Thurgood Marshall School of Law in Houston will host a two-day conference April 4-5 titled "The Constitutionalization of Immigration Law" (brochure here). I am honored to be included among the speakers at this conference. I will be on the panel for "Sixth Amendment Right to Counsel in Texas Court Proceedings - Padilla and 11.07 Habeas Corpus," which will be presented Thursday afternoon. I will be joining Naomi Jiyoung Bang, Senior Attorney at FosterQuan LLP in Houston (and also a Clinical and Adjunct Professor of Law at South Texas College of Law) and Franklin Bynum, from the Harris County Public Defender's Office, on this particular panel. Topics covered in the conference are:
- Pleanary Power - Supreme Court Deference to the Executive and Legislative Branches: Brief History of the Chinese Exclusion Cases;
- Fifth Circuit Practice Pointers - A View from the Bench;
- Washington Insiders View on Immigration Reform, DACA, Stateside Waivers, and Path to Citizenship;
- Fifth Amendment - Due Process Rights to Counsel in Immigration Proceedings: Matter of Lazada, Compean I & II, MAM and Circuit Court Decisions;
- Sixth Amendment Right to Counsel in Texas Court Proceedings - Padilla and 11.07 Habeas Corpus;
- Sixth Amendment Right to Effective Assistance of Counsel;
- Fourth Amendment Search and Seizure in Immigration Proceedings;
- Restitution and Compensation for Victims of Human Trafficking in the United States; and
- Round Table Clinicians Luncheon - Infusing Best Practices in Immigration Law School Clinics.
Thank you to Professor Fernando Colon-Navarro, Director of LLM and Immigration Development at Thurgood Marshall for this invitation. I am honored to participate in the comprehensive and timely conference.
Monday, March 18, 2013
The SMU Dedmon School of Law will host its 10th Annual Symposium on Emerging Intellectual Property Issues on March 22, 2013, with a presentation titled "The Federal Circuit and Patent Law." The one day symposium includes four panel discussions - The Federal Circuit's Stewardship of Patent Law: A View from the Bench; Institutional Roles: The Federal Circuit and the Supreme Court; Allies or Competitors: The Federal Circuit and the U.S. Patent and Trademark Office; and Innovation, Disruptive Technologies and the Federal Circuit. Bernard J. Knight, Jr., General Counsel, U.S. Patent and Trademark Office is scheduled to deliver the luncheon and keynote address. A complete brochure for the symposium is here.
Thursday, June 28, 2012
In what on writer called a "stinging rebuke to industry and [the challenging] states," a three-judge DC Circuit court panel Tuesday upheld the Environmental Protection Agency's ("EPA's") greenhouse gas regulations.
The case, Coalition for Responsible Reg v. EPA, No. 09-1322 (D.C. Cir. June 26, 2012), following the United States Supreme Court's 5-4 decision in Massachusetts v. EPA, 549 U.S. 497 (2007) which compelled the EPA to regulate air pollutants under the Clean Air Act's ("CAA's") authority. The EPA in turn issued an Endangerment Finding, determining that greenhouse gases may "reasonably be anticipated to endanger public health or welfare" (citing the CAA) and the Tailpipe Rule, setting emission standards for cars and some trucks. The EPA also ordered certain stationary greenhouse gas producers to obtain construction and operating permits. Finally, the EPA issued a Timing and Tailoring Rule providing that only the largest stationary producers would be initially subject to the permit requirements.
The Petitioners which included some states and industry groups challenged the rules on ground that the EPA had improperly interpreted the CAA. Yesterday, the appeals court panel consisting of Judges Sentelle (Reagan appointment), Rogers (Bush II) and Tatel (Clinton), rejected those challenges, allowing the EPA rules to stand.
The next meaningful step for the challengers in this case is the United States Supreme Court, as en banc review of this unanimous decision seems very unlikely. The Massachusetts case was decided five-to-four, and four justices are required to grant certiorari. Inasmuch as the court's composition has changed with two justices from the Massachusetts majority (Stevens, the opinion's author, and Souter) having left the court, I would say there is some chance the Massachusetts dissenters will vote to grant certiorari in the case.
Saturday, October 15, 2011
The U.S. Department of Labor is now sharing information with several states and more aggressively enforcing the FLSA. An interesting September 19, 2011 article from the Boston Herald summarizes the new enforcement activity, here.
Mitchell H. Rubinstein
Tuesday, March 16, 2010
Justice Souter’s recent retirement from the Court after nearly twenty years presents a unique opportunity to comment on his legacy. No doubt others will eulogize or castigate him for his membership in the Planned Parenthood v. Casey troika, but there is much more to the man and his jurisprudence. Indeed, the danger is that Justice Souter will be pigeonholed into one opinion, an opinion that he wrote early in his Supreme Court career, to the detriment of understanding the complex justice that he was. This short essay therefore analyzes a unique set of opinions--those that he authored on the federal civil rules. And what it finds is a justice deeply committed to the fair treatment of the litigants that come before him. That trait says much about David Souter, both the justice and the man.
This is a short, very thoughtful and very well written essay. Essays that examine a Supreme Court Justice's work in a particular legal area often make for interesting reading to me - Dodson's work here is no exception. Dodson's work is forthcoming in the Washington Univ. Law Review.
Monday, February 15, 2010
is and interesting New York Law Journal article. It reports on one case. As the article states:
Although Second Circuit Judges Dennis Jacobs, Pierre N. Leval and Jose A. Cabranes agreed to reverse sanctions leveled against three Cravath, Swaine & Moore lawyers in an alien tort statute case on Friday, they could not agree on whether or not magistrate judges can sanction attorneys without the consent of the parties. Judge Cabranes was persuaded by other courts that a motion for sanctions was the functional equivalent of an independent claim, while Judge Leval said that "the list of matters excluded from magistrate judges' broadly stated power to hear and determine does not mention the imposition of sanctions." In a third concurring opinion, Judge Jacobs said the circuit should not address the issue.
Mitchell H. Rubinstein
Thursday, July 2, 2009
Roger Goldman (Saint Louis University Law School) has posted his short essay, "Why Students Should Take the Federal Courts Course," on the Social Science Research Network. Saint Louis University Law Review has accepted the paper for publication. Here is the abstract:
The most unique feature of the American judiciary is its dual system of trial courts, one state and one federal. This article explores the reasons traditionally given for the need for lower federal courts and whether, in practice, the federal courts are actually serving those needs. For example, it has been assumed that state courts are less hospitable to federal civil rights and consumer claims than federal courts, yet in many jurisdictions, plaintiffs’ lawyers prefer filing claims in state courts under state anti-discrimination or consumer laws rather than federal laws to prevent removal of the case to federal court. The article encourages third-year law students to take this capstone course because of its unique blend of the highly theoretical with the very practical questions facing any lawyer in deciding whether to file in - or remove to - federal court.
I took the Federal Courts course offered at South Texas Law School when I was in law school and the course was one of my favorite law school classes, so I can relate to Professor Goldman's essay. Any law student considering a trial practice should understand the federal court system -- not all cases that begin in state court end there.
Wednesday, July 1, 2009
Johnson & Johnson won a $1.67 billion federal court verdict from an East Texas jury yesterday, the largest patent jury verdict in U.S. history. Johnson & Johnson's Centocor unit sued Abbott Laboratories claiming Abbott interfered with Johnson & Johnson's exclusive license to produce the Humira arthritis drug. The jury awarded Johnson & Johnson $1.17 billion in lost profits and $504 million in royalties. Bloomberg has the full story here.
Sunday, March 1, 2009
EEOC v. Board of Supervisors, ___F.3d___(5th Cir. Feb. 9, 2009), is an important decision. The court held that the Eleventh Amendment protects public universities from lawsuits by former employees under the Age Discrimination in Employment Act — but it does not prevent the EEOC from suing educational institutions.
The 5th stated that it is “well established” that the Eleventh Amendment protects states from lawsuits by private individuals. However the court cited decisions in two other federal appeals courts — including a 2002 case involving the University of Wisconsin System — to assert that the Constitution does not bar the federal government from suing a state (or one of its entities, like a public college) to enforce federal law.The 5th also rejected the university’s argument that, as the court puts it, “the EEOC is circumventing the Eleventh Amendment to obtain personal relief for a party barred from suing ULM.”
Mitchell H. Rubinstein
Wednesday, February 20, 2008
The Iowa Law Review will present a symposium titled "Procedural Justice: Perspectives on Summary Judgment, Peremptory Challenges and the Exclusionary Rule" on February 29, 2008 at the University of Iowa School of Law in Iowa City. Here is the information on the symposium.
The symposium includes three panels: Summary Judgment and Seventh Amendment Concerns, Batson v. Kentucky and the Use of Peremptory Challenges, and Exclusionary Rule Post-Hudson v. Michigan. The lunch presentation includes four federal judges addressing issues presently confronting the federal judiciary.
This is a particularly timely symposium. Last term, the United States Supreme Court decided Bell Atlantic v. Twombly (05-1126), an important Rule 12(b)(6) decision affecting pleading standards in federal courts. The case has generated significant interest in the academy and among federal practitioners. Professor Edward Brunet (Lewis & Clark), Professor Suja A. Thomas (Cincinnati) and Professor William E. Nelson (NYU) will participate on this panel.
Batson continues to generate heavy commentary and interest -- the Supreme Court heard argument in another Batson case, Snyder v. Louisiana (06-10119), in December (see commentary by SCOTUS Blog's Lyle Denniston here), and that case is very likely to further develop constitutional restrictions on peremptory strikes. Professor David Baldus (Iowa), Professor Camille A. Nelson (St. Louis) and Dr. V. Hale Starr (Starr Litigation Services) will present this panel.
Finally, the Court's decision in Hudson v. Michigan (04-1360) leads some to believe that the Fourth Amendment exclusionary rule has a limited life-span; others are not so sure. Professor Albert Alschuler (Northwestern), Professor David Moran (Wayne State) and Professor James Tomkovicz (Iowa) will debate these questions in the afternoon panel session.