Tuesday, March 17, 2015
As we all put the finishing touches on our bracket picks for the NCAA tournament, there are a few labor and employment law issues that are continuing to make some noise and are worth highlighting here. In particular, the U.S. Court of Appeals for the Ninth Circuit is hearing arguments today in O'Bannon v. NCAA on whether a federal judge's determination that the use of players' names, images and likenesses without compensation improperly restrain trade. There are interesting articles on the case at both NPR and CBS. From the NPR piece:
"Duke coach Mike Krzyzewski made $9.7 million last year, according to USA Today. The people running around in the middle of the court - the players - are, of course, not getting paid. That's because a long time ago, a bunch of colleges got together and said scholarships are fine, but paying athletes is against the rules. [The O'Bannon case] will turn on a simple question - are those rules a violation of federal law?"
We are all also awaiting the decision in the Northwestern case which is currently before the NLRB and looks at the ability of college players to unionize. The outcome of that case will have far reaching effects on college athletics as well. These two cases just scratch the surface of the existing controversy over the treatment of players in college sports.
Monday, March 16, 2015
As we noted earlier, the UAW's attempt to organize graduate students at Columbia raised the potential for the NLRB reversing Brown University. As of Friday, that potential significantly increased. In two short decisions (I haven't been able to find them yet), the NLRB ordered a regional hearing on the UAW's petition to represent grad students at both Columbia and the New School. This procedural decision establishes a path for the NLRB to ultimately review whether the students are employees under the NLRA. Thus, these cases--in addition to the Northwestern University footballs players--means that we'll likely see a lot of collegiate student action at the Board for a while.
Saturday, March 14, 2015
image from eeoc.gov
The EEOC just published the most recent version of its "Digest of EEO Law." This is a wonderful (and free resource) which carefully examines recent agency and federal court cases on employment discrimination. Though the digest focuses primarily on federal sector cases, many of the principles addressed are directly applicable to the private sector. The digest is available here. Perhaps more interestingly, this digest also features an article which outlines some of the procedures employers can look to when developing anti-harassment policies. The paper, "The Law of Harassment: Assisting Agencies in Developing Effective Anti-Harassment Policies" is another excellent resource for employers. Again, while this resource is targeted primarily at the public-sector, private sector employers will likely find it useful as well. The EEOC generates many helpful and plainly written documents that can help the general public to navigate the complex area of employment discrimination law. This is one of those resources.
Tuesday, March 10, 2015
How well does the "plausibility" pleading standard of Twombly and Iqbal filter cases on the merits? This has been a matter of some controversy, particularly as applied to employment discrimination cases. In a new paper, "Material Facts in the Debate Over Twombly and Iqbal" (forthcoming in the Stanford Law Review), Jonah Gelbach offers an empirical analysis with ambiguous results. Here's the abstract:
This paper presents empirical evidence concerning the adjudication of defendant-filed summary judgment motions from nearly 2,000 randomly selected employment discrimination and contracts cases to try to assess Twombly and Iqbal’s performance in filtering cases according to merit. I first explain how such data might be helpful in such an assessment, taking into account the possibility that parties’ behavior might have changed following Twombly and Iqbal. I then report results indicating that even using this large collection of data -- the most comprehensive data assembled to date to address this question -- we cannot tell whether “TwIqbal” supporters or critics are more correct about the efficacy of the new plausibility pleading regime in the pre-discovery filtering of cases according to merit. This null result points to the very real possibility that plausibility pleading’s case-quality effects -- a quintessential empirical question -- simply can't be answered using data. This paper’s basic message, then, is that empirical evidence is unlikely to settle the debate over the case-quality effects of the new pleading regime ushered in by Twombly and Iqbal.
Gelbach's sample of employment-discrimination cases consisted of 700 pre-Twombly cases (each with no pro se plaintiff and an adjudicated defense summary judgment motion) and 368 such cases post-Iqbal. His conclusion: Even assuming "no selection into summary judgment, the data on employment discrimination cases simply can’t settle the dispute over TwIqbal’s quality-filtering effect."
Monday, March 9, 2015
Directly related to our earlier story about Wal-Mart's decision to increase its minimum pay to $9 per hour is a piece at Bloomberg.com which examines how turnover costs for lower pay workers is resulting in a push for higher wages. The article discusses the training and start-up costs for new employees, and explains why it makes economic sense to try to hang on to lower pay workers. From the article:
"A modest bidding war has broken out among the retailers who hire from the bottom of the labor pool, buoyed in part by improving sales. [Wal-Mart's pay raises were] quickly matched by TJX, the parent company of TJ Maxx and Marshalls. Gap, Starbucks, and IKEA had already joined the growing list of service sectors now committed to higher starting wages."
This development signals an improving economy, and an increase in the leverage of the workforce. The article is definitely worth a read.
-- Joe Seiner
Sunday, March 8, 2015
A few weeks ago, the New York Court of Appeals became the first State supreme court to expressly import Ricci v. DeStefano, 557 U.S. 557 (2009)—which interpreted Title VII—into that State’s own employment-discrimination law. How precisely it did so, however, is a bit unclear.
Margerum v. City of Buffalo, No. 7 (N.Y. Feb. 17, 2015) concerns a lawsuit brought in New York state court by white firefighters against the City of Buffalo. At the time, the City also faced a Title VII lawsuit alleging that firefighter promotion exams had a disparate-impact on African-American firefighters. The white firefighters in Margerum argued that the City had violated State law—including New York Human Rights Law, the State’s own employment-discrimination statute---by letting expire certain promotion eligibility lists because the Margerum plaintiffs—who would otherwise have been promoted—are white. The trial court granted plaintiffs summary judgment, ruling that the City had failed to meet the “strong basis in evidence” standard set forth in Ricci. The Appellate Division affirmed: “[T]he City defendants did not have a strong basis in evidence to believe that they would be subject to disparate-impact liability if they failed to take race-conscious actions, i.e., allowing eligibility lists to expire, inasmuch as the examinations in question were job-related and consistent with business necessity.”
On appeal, the New York Court of Appeals ruled that the trial court had erred by granting the plaintiffs summary judgment on the Ricci standard. In so doing, however, that Court read the Ricci standard into New York’s Human Rights Law. Here’s the majority opinion’s reasoning in its entirety: “As both parties agree, the Ricci standard governs. We have consistently held that the standards for recovery under the New York Human Rights Law are in nearly all instances identical to Title VII and other federal law.”
This ruling drew dissent from Justice Jenny Rivera. She argued that importing the Ricci standard"undermines the legislative purpose and stated equal opportunity goals of our Human Rights Law.” Among other things, Justice Rivera wrote: “The federal approach [in Ricci] essentially subordinates the interests of plaintiffs alleging disparate impact to those of plaintiffs claiming disparate treatment. . . . Under the Human Rights Law, no individual has a stake in a workforce selected and maintained through the use of criteria that result in proscribed disparities. A workforce so constituted is antithetical to the statute's concept of equal opportunity, and the right to employment purged of discrimination.” Ricci should not apply, she concluded, because “an employer does not commit statutorily proscribed intentional discrimination when the employer seeks to reduce and eliminate the causes of inequality at the workplace.”
It is, however, unclear whether the Margerum precisely followed Ricci in how the “strong basis in evidence” standard is supposed to apply in suits under the New York Human Rights Law. In Ricci itself, the Court wrote: “We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.” In other words, the “strong basis in evidence” standard is a defense to Title VII liability for the employer’s “race-conscious discriminatory action.” See also Ricci, 557 U.S. at 579 (“valid defense”); id. at 580 (“lawful justification”, “excuses”).
In contrast, the Margerum majority observed that once Buffalo “chose not to promote white candidates from the eligibility list,” the Margerum plaintiffs undisputedly “made out a prima facie case of discrimination. . . . The burden then shifted to the City to prove that it had “a strong basis in evidence to justify its race conscious action.” (emphasis added, citing, among other cases, St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507–508 (1993), and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). By using the burden-shifting idiom of McDonnell Douglas and progeny, the Margerum Court seems to have adopted the “strong basis” standard as a way to decide whether the City satisfied its burden of producing a legitimate non-discriminatory reason. Satisfying that burden, however, is usually part of the McDonnell Douglas approach to analyzing whether the plaintiff has proven liability in the first place. It’s not about whether the defendant-employer has proven a defense to Title VII liability. Thus, Margerum appears to depart from Ricci in this respect—or so a lawyer might argue about Margerum in the next case.
Saturday, March 7, 2015
There is an extraordinarily interesting article over at Time.com that looks more closely at the pay raises being offered by Wal-Mart. The company recently moved to raise its starting pay to $9 an hour, now safely above the federal minimum wage of $7.25. While Wal-Mart is well known for its ability to avoid unionization, the move has been lauded as a major victory and a sign of the strength of collective action. Pressure from employees and outside groups likely caused the change in policy, which is critical as many other retailers may follow suit. From the article:
"the fact that Walmart workers, who aren’t unionized in the U.S., got anything at all shows the PR pressure that companies like it are coming under as economic inequality gains clout as a political issue. Twenty-nine states have raised the minimum wage, and presidential candidates from both parties are expected to wrestle with the challenge for the next 18 months."
The minimum wage will likely be an important political issue in the upcoming elections, and it will be interesting to see what other retailers do in the face of some of these existing pressures.
- Joe Seiner
Thursday, March 5, 2015
There is a really interesting article over at the Washington Post which looks at some of the problems of dwindling unionization. The article comes at a time when another Wisconsin bill is set to undermine even more labor rights. What is particularly interesting about this piece, however, is its focus on different ways that unions can actually survive in this climate. The article, which relies heavily on the superb scholarship of friend-of-blog Catherine Fisk, suggests that to survive labor organizations must
"Allow for members-only unions. . . [p]ass more laws that protect workers’ rights generally. . . [and] [j]ust work harder to prove unions are valuable."
The article provides a fresh look at a difficult issue, and is definitely worth a quick read.
-- Joe Seiner
Tuesday, March 3, 2015
Last week, the Arkansas legislature prohibited local governments in that State from exceeding State law anti-discrimination protections—including protections against employment discrimination. The legislation—Act No. 137, or the “Intrastate Commerce Improvement Act”—amended title 14 of the Arkansas Code:
(a) A county, municipality, or other political subdivision of the state shall not adopt or enforce an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.
(b) This section does not apply to a rule or policy that pertains only to the employees of a county, municipality, or other political subdivision.
Ark. Code § 14-1-403. In so doing, Arkansas joined Tennessee, which in 2011 enacted very similar legislation—the “Equal Access to Intrastate Commerce Act”—soon after Nashville passed an ordinance to add “gender identity” and “sexual orientation” to the classes covered under equal employment opportunity provisions applicable to government contractors. Bills similar to the Arkansas and Tennessee legislation have been introduced in the Texas and West Virginia legislatures. (For more on local-preemption statutes in general, see here.)
The Arkansas legislation is the latest move in a story that began in August 2014. That’s when, after ten hours of public debate, the City Council of the City of Fayetteville passed Chapter 119, an anti-discrimination ordinance that prohibited employers, landlords, and others from discriminating against anyone based on, among other characteristics, their sexual orientation or gender identity—protections not currently available under Arkansas state law. Once it passed, ordinance opponents began collecting signatures to seek repeal, with backing from the local Chamber of Commerce and others. That effort succeeded: In a December 2014 special election, a majority of Fayetteville residents voted in favor of repeal. Soon after, the Fayetteville City Council and its City Attorney began working on a new version of Chapter 119.
But on February 2, 2015, State Senator Bart Hester (R) introduced the bill that eventually became Act 137. On its face, Act 137 purports to “improve intrastate commerce” by making anti-discrimination law “uniform” for employers, businesses, and organizations in the State. Yet, in advocating for Act 137, Sen. Hester had suggested that Fayetteville’s ordinance jeopardized “basic rights of religious freedom.” In a December television debate about Chapter 119 before its repeal, Hester argued that Fayetteville’s ordinance would force pastors to perform same-sex marriages and would give “an adult man – 30, 40, 50 years old – the right to share a bathroom with a six-year-old little girl, the right to share the changing room with women at the local gym. It’s not right. We need to protect our children.”
Meanwhile, a few months ago in Tennessee, the Tennessee Court of Appeals affirmed the dismissal of an Equal Protection Clause challenge to Tennessee’s statute on the ground that no plaintiff had shown a distinct, palpable injury in-fact sufficient to confer standing. Howe v. Haslam, No. M2013–01790–COA–R3–CV (Tenn. Ct. App., Nov. 4, 2014). In so doing, the court distinguished Romer v. Evans, 517 U.S. 620 (1996). The reasoning: Whereas the law challenged in Romer “rendered all LGBT advocacy in Colorado futile at every level and within every branch of state government” and “barred a class of persons from equal participation in the political process,” the Tennessee statute “erects no such barrier.”
Sunday, March 1, 2015
Edward Zelinsky (Cardozo) has just posted on SSRN his article (42 Rutgers Law Record 109-25) The Aftermath of Hobby Lobby: HSAs and HRAs as the Least Restrictive Means. Here's an excerpt from the abstract:
In Burwell v. Hobby Lobby Stores, Inc., the U.S. Supreme Court held that, under the Religious Freedom Restoration Act of 1993 (RFRA), closely-held corporations’ employer-sponsored medical plans need not provide forms of contraception to which the shareholders of such corporations object on religious grounds. The question now arises how the President, the Congress and the Departments of Health and Human Services (HHS), Treasury and Labor ought to respond to the Hobby Lobby decision.
The best alternative is to require any employer which objects to providing contraception to fund for their respective employees independently-administered health savings accounts (HSAs) or health reimbursement arrangements (HRAs). An HSA or HRA permits the covered employee to spend employer-provided, pre-tax health care dollars on any medical service the employee chooses without implicating the employer in the employee’s spending decision. The HSA/HRA alternative respects the religious rights of sponsoring employers since, unlike conventional insurance or self-insured health plans, the sponsoring employer’s plan does not provide a menu of choices which frames the employees’ decisions. Simultaneously, the HSA/HRA approach respects the autonomy of employees to spend health care dollars on whatever medical services such employees select including services to which the employer objects.
* * *
Lance Compa and Tequila Brooks have just published NAFTA and the NAALC Twenty Years of North American Trade-Labour Linkage (2015). Here's a description from the authors:
The 20th anniversary edition of the NAFTA and NAALC monograph in the International Encyclopaedia of Laws, Labour Law and Industrial Relations by Lance Compa and Tequila Brooks provides an up-to-date retrospective on all of the citizen petitions filed under the NAFTA labour side agreement since 1994. The monograph includes early petitions filed about trade union rights at the Honeywell and Echlin plants in Mexico, the McDonald's case in Canada and the Washington Apple and DeCoster Egg cases in the United States as well as more recent petitions filed about migrant worker rights under the H-2A and H-2B visa programs in the US. In addition to being the most complete compilation of NAALC cases in existence today, NAFTA and the NAALC Twenty Years of North American Trade-Labour Linkage outlines the internal mechanics leading to the filing of a 2000 NAALC petition with the Government of Mexico about unequal treatment of migrant workers in the US, and describes changes in the treatment of petitions by US, Mexican and Canadian authorities over the last 20 years. It also contains a chapter that compares the NAALC to the OECD Guidelines for Multi-National Enterprises and highlights recent North American cases filed under the OECD Guidelines including the relatively lesser known 2004 Yucatan Markey Tex-Coco Tex petition which was dual filed under both mechanisms. Finally, the 20th edition introduces a new chapter that compares labour provisions in US and Canadian free trade agreements negotiated since 2000 and discusses recent labour petitions filed under the US-Central America-Dominican Republic Free Trade Agreement (CAFTA-DR) and US free trade agreements with Bahrain and Peru.
- Blogger Emeritus Paul Secunda on recent developments on Gov. Walker's attempts to turn Wisconsin into a right-to-work state. It looks like it will happen soon.
- Speaking of right-to-work, Illinois' new Governor is unleashing a similar attack on public-sector workers through an executive action that has some questions about its legality.
- Early word on the Abercrombie & Fitch oral argument looks favorable for the plaintiff. Stay tuned.
- The Senate HELP committee held a hearing on the NLRB's election rules recently. Critics argue that the rules create "ambush" elections--I've argued in a recent article that the rules are pretty modest and far from creating ambush elections.
- The NLRB's recent Pacific Lutheran decision attracts attention from university adjuncts. Speaking of which, last Wed. was National Adjunct Walkout Day.
- Is a new challenge to the NLRB's Brown University case--finding that grad students are not employees--on the way? Following the settlement at NYU last year, developments at Columbia could ultimately threaten the Brown decision.
- The Fourth Circuit adds to a False Claims Act circuit split regarding the public disclosure bar. It's already been to the Supreme Court twice--maybe three times will be a charm.
- The Fourth Circuit also issued an interesting decision that deals with several SOX whistleblower issues, including exhaustion and available remedies.
- Wal-Mart raises wages for its lowest-paid workers (and Ann Hodges, Richmond, comments). The promise to improve scheduling may be as significant, if not more so. Other major companies are starting to follow suit with higher wages.
- Patricia Arquette makes a strong pro-gender equality push in her Oscar acceptance speech. See, we told you that labor and employment law was cool.
- It might be depressing for unions in the U.S., but in Canada, the right to strike is now constitutional. David Doorey explains.
Hat Tip: Jonathan Harkavy, Lynn Dancy Hirsch, Patrick Kavanagh
Bill Herbert (Hunter College) and Alicia McNally (New York State PERB) have just posted on SSRN their article, Just Cause Discipline for Social Networking in the New Gilded Age: Will the Law Look the Other Way?. The abstract:
We live and work in an era with the moniker of the New Gilded Age to describe the growth in societal income inequality. The designation is not limited to evidence of the growing gap in wealth distribution, but also the sharp rise in employment without security, including contingent and part-time work. This article examines the state of workplace procedural protections against discipline as they relate to employee use of social media in the New Gilded Age. In our times, reactions to the rapid distribution of troublesome electronic communications through social networking tend to eclipse patience for enforceable workplace procedures. The advent of social media and the decline of job security have created a perfect storm that raises the question of whether labor law will look the other way when it comes to the principles of workplace fairness and justice.
The article begins with President William McKinley’s introduction of the doctrine of just cause discipline into American labor law in 1897, during the Gilded Age, at the same time that the common law at-will doctrine was continuing to gestate. McKinley’s unilateral executive action established principles that remain the cornerstone of just cause discipline: proper notice, a fair evidentiary investigation, an opportunity to be heard, and nondiscriminatory treatment. The article then turns to the development of just cause standards in the 20th Century, which added other elements such as notice of workplace policies and the use of progressive discipline. Lastly, the article examines how just cause principles should be applied to allegations of electronic misconduct in the New Gilded Age to ensure reasonable and prudent disciplinary results, employee acceptance of adverse employment decisions, and a decreased likelihood of litigated claims of unlawful discrimination.
I'll confess that I was totally unaware of McKinley's action. Learn about that move and the intersection of just cause and technology in this interesting article.
The National Center for the Study of Collective Bargaining in Higher Education's newest edition of the Journal of Collective Bargaining in the Academy is out. The peer-reviewed journal's latest includes the following articles:
- The Impact of Unionization on University Performance by Mark Cassell and Odeh Halaseh;
- Post-Recession CBAs: A Study of Wage Increases in the Agreements of Four State-wide Faculty Unions by Steve Hicks; and
- Academic Collective Bargaining: Patterns and Trends by Curtis R. Sproul, Neil Bucklew, and Jeffery D. Houghton.
Check it out!
Thursday, February 26, 2015
The Supreme Court of Hawaii has issued an important opinion that offers a new way to think about the McDonnell Douglas test. Adams v. CDM Media USA, Inc., 2015 WL 769745, No. SCWC-12-00000741 (Hawaii Feb. 24, 2015).
In Adams, the plaintiff alleged she was subjected to age discrimination when a company refused to hire her for a telephone sales position. The Hawaii Supreme Court found that the plaintiff established a prima facie case under McDonnell Douglas. The question in the case was whether the defendant met its burden in step two of that test, to articulate a legitimate, non-discriminatory reason for its action.
In support of its motion for summary judgment, the employer proffered several reasons for not hiring the plaintiff. The employer asserted the plaintiff lacked sales experience in the last five years, her prior sales experience was in other fields and involved face to face communication, she had little or no sales experience with corporate executives at Fortune 1,000 companies, and the decisionmaker was told the plaintiff disliked tedious work.
The Hawaii Supreme Court held that the employer failed to meet its burden of production under the second step of the McDonnell Douglas test. The Court emphasized that the second step in the test requires the employer’s decision to be “legitimate.” The Court interpreted the word “legitimate” through the lens of Hawaii discrimination law to require that the refusal to hire an individual must relate to the ability of the individual to perform the work in question.
The Court held that summary judgment in the employer’s favor was inappropriate because the reasons provided by the employer either were properly contested by the plaintiff, were based or inadmissible hearsay or did not relate to her ability to do the job. Importantly, the Court held that the employer could not use the lack of sales experience in the last five years as a legitimate reason if the plaintiff could perform the sales job adequately without recent experience. In this case, the employer admitted that the decisionmaker did not rely on the published criteria for the job in his decision to not hire the plaintiff, and the Court expressed concern that this “recent job experience” criteria was only being applied to the plaintiff and that it was not a legitimate reason to disqualify a person for the job in question.
This case represents an important new way of looking at the second step of the McDonnell Douglas test and shows the further separation of state discrimination law from federal law. Also, the majority and dissenting opinions illustrate how confusing McDonnell Douglas still is, even though the test has been mulled over by courts for more than 40 years.
Wednesday, February 25, 2015
I was recently asked by a reporter about metrics relating to case filings and monetary recovery for the past fiscal year. I responded that the metric that has garnered much of my attention this year is “two-and-a-half” – the number of cases involving the EEOC before the Supreme Court this term. This morning, the Supreme Court heard the case of EEOC v. Abercrombie and Fitch. This case involves a 17-year old Muslim teenager denied hire by an Abercrombie Kids store in Tulsa, Oklahoma. This is an appeal from an adverse 10th Circuit decision. 731 F.3d 1106 (10th Cir. 2013). According to the government’s brief: “The question presented is whether an employer can be liable under Title VII for refusing to hire an applicant or for discharging an employee based on a ‘religious observance and practice’ only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.”
This was the EEOC’s second visit to the Supreme Court this term as a party. In Mach Mining v. EEOC, argued on January 13, the EEOC appeared as Respondent in a case alleging systemic sex-hiring discrimination examining the Commission’s pre-suit requirements. The Seventh Circuit below had ruled in favor of the Commission. 738 F.3d 171 (7th Cir. 2013). On December 3, 2014, the Supreme Court heard the Young v. UPS case addressing the scope of the Pregnancy Discrimination Act. The EEOC appeared as an amicus in this case. The Fourth Circuit had ruled below in favor of UPS. 707 F.3d 437 (4th Cir. 2013). The EEOC, as a party, has had two cases before the Supreme Court in one term only once before. (Can you name the two cases? See below for the answer). The addition of UPS v. Young makes it an interesting term indeed. Moreover, the fact that these cases are the only cases involving federal anti-discrimination laws before the Court this term means that when the Supreme Court renders its decisions in these cases, these decisions will, no doubt, generate considerable commentary by practitioners and scholars alike. At that time, I certainly will welcome your thoughts and feedback. Of course, I won’t comment on the specifics of "Our Year in the Supreme Court" until the decisions are issued. The EEOC’s website (see www.eeoc.gov), however, includes general information about the Commission’s efforts to enforce the prohibitions against religious and pregnancy discrimination as well as our conciliation and other early resolution efforts.
David Lopez, EEOC General Counsel
Postscript: The two cases? In the October 1982 term, the Supreme Court heard Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) (the Pregnancy Discrimination Act of 1978 prohibits sex discrimination on the basis of pregnancy not only for female employees, but also female dependents of male employees); and EEOC v. Wyoming, 460 U.S. 226 (1983) (extension of the Age Discrimination in Employment Act to cover state and local governments is a valid exercise of Congress' powers under the Commerce Clause).
Tuesday, February 24, 2015
There is an interesting discussion over at saveourjuries.com by friend-of-blog Suja Thomas (Illinois) which examines the proposed procedural changes being advanced by some large companies that would effect how discovery takes place. These changes, if adopted, would have a dramatic impact on employment law cases -- potentially resulting in a greater number of dismissals and lower rates of success at trial. From the discussion:
"Under the proposed rule, without relevant information, courts are even more likely to dismiss these cases and other cases . . . before trial. Also, if cases are not dismissed before trial and end up before a jury, the cases will continue to be more difficult to win without relevant information."
The is a really interesting topic, and I encourage you to take a look at the discussion and weigh in. As many of you know, Suja testified before the Advisory Committee on the Civil Rules on this issue.
-- Joe Seiner
Sunday, February 22, 2015
The Ohio State Law Journal has just published a symposium on employment discrimination and torts, organized by Martha Chamallas and Sandra Sperino who, in addition to their own interesting pieces, provide an enlightening introduction. It's Volume 75, Number 6, but here are the titles and links:
Martha Chamallas & Sandra F. Sperino, Torts and Civil Rights Law: Migration and Conflict: Symposium Introduction, 75 Ohio St. L.J. 1021 (2014).
William R. Corbett, What is Troubling About the Tortification of Employment Discrimination Law?, 75 Ohio St. L.J. 1027 (2014).
Charles A. Sullivan, Is There Madness to the Method?: Torts and Other Influences on Employment Discrimination Law, 75 Ohio St. L.J. 1079 (2014).
Sandra F. Sperino, Let’s Pretend Discrimination Is a Tort, 75 Ohio St. L.J. 1107 (2014).
W. Jonathan Cardi, The Role of Negligence Duty Analysis in Employment Discrimination Cases, 75 Ohio St. L.J. 1129 (2014).
Maria L. Ontiveros, The Fundamental Nature of Title VII, 75 Ohio St. L.J. 1165 (2014).
Catherine E. Smith, Looking to Torts: Exploring the Risks of Workplace Discrimination, 75 Ohio St. L.J. 1207 (2014).
Ifeoma Anjunwa, Genetic Testing Meets Big Data: Tort and Contract Law Issues, 75 Ohio St. L.J. 1225 (2014).
Laura Rothstein, Disability Discrimination Statutes or Tort Law: Which Provides the Best Means to Ensure an Accessible Environment?, 75 Ohio St. L.J. 1263 (2014).
Martha Chamallas, Two Very Different Stories: Vicarious Liability Under Tort and Title VII Law, 75 Ohio St. L.J. 1315 (2014).
L. Camille Hebert, Conceptualizing Sexual Harassment in the Workplace as a Dignitary Tort, 75 Ohio St. L.J. 1345 (2014).
Deborah L. Brake, Tortifying Retaliation: Protected Activity at the Intersection of Fault, Duty, and Causation, 75 Ohio St. L.J. 1375 (2014).
Saturday, February 21, 2015
It is with great pleasure that we welcome David Lopez, EEOC General Counsel, as a guest blogger with the Workplace Prof Blog. As we are all aware, Mr. Lopez has had a distinguished career, and the EEOC has benefited greatly from his leadership. Mr. Lopez hopes to be blogging with us as early as next week on the upcoming Abercrombie and Fitch oral arguments, and he will definitely be checking in from time-to-time on the important issues of the day. I attach his biography below -- Welcome Mr. General Counsel!
David Lopez was sworn in as General Counsel of the U.S. Equal Employment Opportunity Commission (EEOC) on April 8, 2010. He was nominated by President Barack Obama and was confirmed by the Senate on December 22, 2010. He was confirmed a second time by the Senate on December 3, 2014. Mr. Lopez is the first EEOC field trial attorney to be appointed as the agency's General Counsel. He has served at the Commission in various capacities for the past 20 years, including as Supervisory Trial Attorney in the Phoenix District Office and Special Assistant to then‐Chairman Gilbert F. Casellas. As General Counsel, Mr. Lopez runs the Commission's litigation program, overseeing the agency's 15 Regional Attorneys and a staff of more than 325 lawyers and legal professionals who conduct or support Commission litigation in district and appellate courts across the country. During his tenure, Mr. Lopez has cultivated "one national law enforcement agency," encouraging the EEOC's litigators nationwide to operate more collaboratively and cohesively with each other and other internal partners. Under his leadership, the EEOC's trial program has been extremely successful. Since fiscal year 2013, the EEOC won 13 out of 17 jury trials, including significant verdicts involving race discrimination such as in the case against AC Widenhouse, where the 4th Circuit upheld a $243,000 jury verdict for the EEOC. Also, among the notable victories is the $240 million jury verdict ‐ the Commission's largest award ever ‐ in Henry’s Turkey Service, a case brought on behalf of over thirty intellectually disabled men. Significant appellate victories in EEOC enforcement actions include Mach Mining (EEOC's conciliation efforts not judicially reviewable); Boh Brothers (plaintiffs can prove same‐sex harassment under Title VII of the Civil Rights Act with "gender stereotyping" evidence); Houston Funding ("lactation" discrimination violates Title VII as amended by the Pregnancy Discrimination Act); United Airlines(employers may have to reassign disabled employees non‐competitively as a reasonable accommodation under the ADA); Baltimore County (making older workers contribute more to pensions violates the Age Discrimination in Employment Act); and Serrano & EEOC v. Cintas (Commission can bring "pattern or practice" suit under section 706 of Title VII). Mr. Lopez has also served as Co‐Chair of the committee that developed the Commission's Strategic Enforcement Plan for 2013 to 2016. He is the Chair of the Commission's Immigrant Worker Team, a group tasked with strengthening and coordinating EEOC's enforcement and outreach on employment discrimination issues affecting immigrant and other vulnerable workers. In 2014, the National Law Journal named Mr. Lopez one of "America's 50 Outstanding General Counsels," and the magazine, Diversity and the Bar recognized Mr. Lopez as a “Latino Luminary” for his work as a civil rights attorney and as General Counsel. In 2011, Hispanic Business named Mr. Lopez to its list of 100 Influentials in the Hispanic community. Before becoming General Counsel, during his 12 years in the EEOC's Phoenix District Office, Mr. Lopez successfully tried several novel and noteworthy cases. He won significant jury verdicts against Alamo Rent-A-Car (the first "post‐9/11 backlash" religious accommodation case brought by the EEOC), and Do Daddy (a national origin (Moroccan), religion (Islam), and retaliation case), to name a few. From 1991 to 1994, Mr. Lopez was a Senior Trial Attorney with the Civil Rights Division, Employment Litigation Section, of the U.S. Department of Justice in Washington, D.C. Between 1988 and 1991, Mr. Lopez was an Associate with Spiegel and McDiarmid in Washington, D.C. Mr. Lopez graduated from Harvard Law School in 1988 and graduated magna cum laude from Arizona State University in 1985, with a B.S. in Political Science.
Friday, February 20, 2015
For every revolution, there is a counter-revolution, or at least an attempted one. And we’re beginning to see serious push-backs by employers who have been sued by whistleblowers. One of the more extreme examples is currently before the New Jersey Supreme Court, and involves a school district employee who took a number of confidential documents from her employer for use in her whistleblower and discrimination suit against it. When the employer learned about the taking during discovery, it promptly informed the county prosecutor, who in turn promptly had the plaintiff indicted.
But criminal suits are not the only example of employer pushback against whistleblowers. In the False Claims Act context, one of the leading qui tam relator’s-side law firms, Phillips & Cohen, has been sued (unsuccessfully, so far) by one of the companies it had sued, the claim being that it and the relator stole company trade secrets for use in a FCA suit.
Another example of an unsuccessful suit is both interesting and perhaps an object lesson. In Rockwell Medical, Inc. v. Yokum, 2014 U.S. Dist. LEXIS 178142 (E.D. Mich. Dec. 30, 2014), the defendant, Yokum, was a former employee who had sued the plaintiff in California for wrongful termination. He claimed that his opposition to various Rockwell problems in clinical trials and the company’s drugs led to his discharge. Although Rockwell had prevailed in the wrongful discharge case, its victory wasn’t enough: it brought suit in Michigan against Yokum on a blizzard of claims, including defamation, violation of its nondisclosure agreement, and misappropriation of both tangible and intellectual property.
The district court granted Yokum’s motion for summary judgment, in the process lambasting the Rockwell’s attorneys for their failure to respond appropriately to the motion; rather than responding to the defendant’s specific claims, their brief “simply invited the court to review the 500+ pages of material submitted as exhibits and to conclude on its own, with no illuminating assistance from plaintiff, that their claims are not factually supported.”
This odd approach raises questions as to whether the goal of the litigation was ever to win a judgment – as opposed to dragging its former employee (presumably a California resident given where he filed his suit) to Michigan and putting him through an expensive discovery process and the cost of the summary judgment motion. This suspicion is, if anything, reinforced by the court’s treatment of the various claims.
The defamation claim, apparently based on Yokum’s allegations in the California suit, was defeated by the litigation privilege, which was never mentioned in the plaintiff’s response to the summary judgment motion, and, in any event, Rockwell failed to identify any specific false statement, much less put in evidence as to why it was false. Contract claims for breach of a nondisclosure agreement were dismissed because Rockwell never identified any specific item of confidential information that was disclosed, and because much of the relevant information had necessarily been disclosed to the FDA and doctors and patients in clinical trials. Ditto for the alleged trade secret theft. As for tortious interference, Rockwell failed to identify any specific contractual relationship with which Yokum supposedly interfered. Finally, the court rounded out its opinion by finding that Rockwell had also failed to identify any physical property Yokum had taken and not returned.
I said earlier that there may be an object lesson here, but it’s not exactly clear what it is. On the one hand, the spanking the court administered to Rockwell suggests that employers (and their attorneys) should tread carefully before launching a counterattack on an employee who has brought a whistleblower suit. But, on the other hand, Yokum probably paid a stiff price in attorneys’ fees to prevail, which means that the employer succeeded in imposing a penalty for his suit.
Of course, procedural rules provide some protection for truly meritless suits, but unfortunately, one is forced to wonder if this kind of “legal” retaliation might not be yet another reason for whistleblowers to think twice before commencing suit (and, if so, how courts are likely to respond to such retaliation).
Cross-posted at Health Reform Watch.