Friday, June 26, 2015

Developing a GLBT Practice

GlbtThe good news on today's marriage-equality case makes it particularly appropriate for me to give a shout-out to a couple of folks doing cutting-edge work on GLBT issues, especially on trans rights.

Jillian Weiss, an attorney in Tuxedo Park, NY, has been the subject of several of my posts on this Blog for her tireless advocacy, both public and judicial, on behalf of trans clients. I don't believe I had ever met her in person, until earlier this week I was squatting between meetings in the library of the New York City Bar Association, heard a party going on as I was leaving, and saw that Jillian was the guest of honor. It was a great opportunity for us to reconnect and finally meet in person, and it's a testament to how far GLBT acceptance has come that she was being celebrated by the NYCBA.

Andrew Kimler is an attorney with Vishnick McGovern Milizio in NYC, and is an alum of Ohio Northern Law School. He has an employment litigation practice, with a particular focus on GLBT, and especially trans, litigation. More importantly, his firm has parlayed its experience with GLBT employment cases into representation of GLBT folks on a much wider variety of issues, such as marriage, adoption, estate planning, and the like. The more he spoke about his firm becoming a full-service LGBT-focused firm, the more I thought about how elder law has developed from nothing 10 years ago into a comprehensive practice specialty today, encompassing not just estate planning but Medicare/Medicaid planning, living wills, end-of-life issues, etc. etc. Perhaps this is the wave of the future for GLBT practice.

rb

June 26, 2015 in Employment Discrimination | Permalink | Comments (0)

Thursday, June 25, 2015

Reading the Disparate Impact Tea Leaves: Texas Dep't of Housing v. Inclusive Communities Project

SUPCTWhile everyone else in the country was reading the Supreme Court's opinion on health care subsidies, I had a chance to look at the other opinion issued today: Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. This case was about whether disparate impact claims are cognizable under the Fair Housing Act. Given how negative the Court's opinions seem to have been when it comes to disparate impact -- or even any theory of liability other than for fully self-aware motive -- pretty much since Griggs v. Duke Power Co., with the partial exception of Smith v. City of Jackson, no one expected the Court to rule that they were. That's why the last two FHA disparate impact cases the Court granted cert on settled before the Court could decide them.

Somewhat surprisingly, the Court held that disparate impact claims were cognizable in an 5-4 opinion written by Justice Kennedy. Essentially, the Court based its decision on the statutory language, the history of the Act, and the Act's purpose. Although the FHA does not have language like Title VII or the ADEA that focuses on actions that would "tend to deprive" people of housing opportunities, the FHA does prohibit "otherwise mak[ing] unavailable" housing opportunities because of a person's protected status. That "otherwise" language was key.

It's not all great news for the plaintiffs here or for disparate impact under Title VII, though. Much of the opinion was devoted to discussing how the proof structure limits the claim. The plaintiff must point to a particular practice that causes a disparity, and the defendant has the opportunity to show that the practice is "necessary to achieve a valid [government] interest." The Court suggested that would be difficult in this case, especially where a single housing decision might not be evidence of any policy that would produce a disparity. Finally, the Court cautioned that the relief ordered be very narrowly tailored to the specific practice that was arbitrary, so that government discretion was not cabined more than necessary.

Of special interest in the employment context was this odd statement about the employment cases: 

These cases also teach that disparate impact liability must be limited so employers and other regulated entities are able to make the practical business choices and profit-related decisions that sustain a vibrant and dynamic free-enterprise system. And before rejecting a business justification—or, in the case of a governmental entity, an analogous public interest—a court must determine that a plaintiff has shown that there is “an available alternative . . . practice that has less disparate impact and serves the [entity’s] legitimate needs.” Ricci, supra, at 578. The cases interpreting Title VII and the ADEA provide essential background and instruction in the case now before the Court.

Even though the Court refers to the employment cases, in which the defendant bears the burden to prove that its practice is a business necessity, the statement about needing the plaintiff to prove an alternative practice before a court can reject a business justification, seems to put more of a burden on the plaintiff. Also, the test for business necessity itself is unclear. Congress, in the Civil Rights Act of 1991, stated that the standard should be what it had been the day before the Court decided Wards Cove v. Atonio, which had altered the standard to make it simply a legitimate business reason. But the only case since the CRA to discuss the business necessity standard was Ricci v. DeStefano, which didn't really do a full disparate impact analysis and seemed to interpret business necessity more like the Wards Cove reasonableness standard. My guess is that this will not help the lower courts much, although it may encourage them to use a reasonableness or business judgment type rule to assess the business necessity defense in the future.

There were two dissents. Justice Thomas dissented, essentially arguing that "because of" could only mean an intent to discriminate, which in turn requires that protected class be the motive for the decision. His dissent is interesting for those of us who study the history of Title VII and the EEOC because of its description of the influence of Alfred Blumrosen, who helped create the EEOC and served as its first Chief of Conciliations and Director of Federal-State relations. Justice Thomas was also worried about how this theory will frustrate the creation and maintenance of low-income housing, especially in places like Houston, which is a minority-majority city.

Justice Alito also dissented and was joined by the Chief Justice as well as Justices Scalia and Thomas. Justice Alito agreed that "because of" required that protected status be the decisionmaker's reason for the decision. He also disagreed with the Court's reading of Congress's intent and the history of the statute. He further disagreed that Griggs's rationale should be imported to the FHA, and implicitly disagreed that Griggs was supportable or even really about anything but sneaky disparate treatment. Finally, Justice Alito worried about how the theory would work in the housing context, which he sees as much more complicated than a relatively simple policy choice at a single employer.

In the end, those who think that disparate impact is a necessary tool in the fight against inequality can breathe some sigh of relief--it's not completely dead. At the same time, though, its viability seems very limited, and the standard for liability is not at all clear.

MM

June 25, 2015 in Commentary, Employment Discrimination | Permalink | Comments (1)

Tuesday, June 23, 2015

The N-Word at Work: Jury Trial Edition

JuryboxThose of us who study race and social movements have had a lot to think about lately. The video of the white police officer in McKinney, Texas using force to subdue a black teenager and threaten others at a pool party, debate over Rachel Dolezal's identity, the racially motivated murders in Charleston and the ensuing calls to remove displays of the confederate battle flag, the Supreme Court's holding that Texas could refuse to issue a specialty license plate with the confederate battle flag on it, and the debate over President Obama's use of the n-word on Marc Maron's podcast have really sparked a prolonged national discussion. Fitting right in to the mix, a federal jury last week issued a defense verdict in Burlington v. News Corp. (civil action no. 09-1908 E.D. Pa) for an employer that  had fired an anchor for using the n-word in an editorial meeting. (h/t Leora Eisenstadt (Temple Business))

The case has a lot of interesting pieces. The white anchor used the term in an editorial meeting and several people at that meeting, some black and some white, were offended even though they did not perceive that he meant it then as a racial slur. Burlington's claim was, essentially, that he was only fired for using the word because he was white and that a black person would not have been. He also used a cat's paw theory, alleging that his co-anchor, who was black, was behind the firing. She allegedly told him "[b]ecause you’re white you can never understand what it’s like to be called a n***** and . . . you cannot use the word . . . ."

The case made it past summary judgment, and the court's opinion is worth a read. It has something for everyone. Not only are the allegations detailed more fully, but the court analyzes whether Title VII should take into account public perceptions about the use of the n-word in the context of the race of the speaker and also struggles with how to merge Staub v. Proctor Hosp.'s cat's paw holding with Vance v. Ball State's ruling on who counts as a supervisor.  You can also read more about the court's discussion of the context and use of the n-word in this ruling on motions in limine right before trial began.

And if you are looking for more commentary on Title VII, context, and use of the n-word at work, you should read Leora Eisenstadt's article, The N-Word at Work: Contextualizing Language in the Workplace--previously posted about here--which grew out of her work on the case when she was in practice. A couple of other interesting pieces by Gregory Parks (Wake Forest) and Shayne Jones (S. Fla. Criminology) here and here, are also thought provoking.

MM

June 23, 2015 in Commentary, Employment Discrimination, Scholarship | Permalink | Comments (0)

The Confederate Flag - An Employment Decision or an Ethical Issue?

Flag

As we are all aware, the recent tragic events in South Carolina have lead to a widespread call to remove the Confederate flag from flying on state grounds.  Nikki Haley, the state's governor, has supported the removal of the flag, as well as senator (and presidential candidate) Lindsey Graham.  The New York Times has also just reported that the state legislature will take up the issue in the next few days.  What happens in South Carolina is also likely to influence other states that use or display the flag in some manner.

Much has been written over the years -- both in the academic arena and in the popular media -- on the constitutional implications of displaying the Confederate flag.  But another interesting dimension has emerged recently in this heated debate -- which are some of the possible employment issues involved.  In South Carolina, the state's largest employers publicly entered the fray today in calling for the flag's removal.  According to The State, South Carolina's largest newspaper,

"The Charleston, Greenville, Columbia and African American chambers of commerce issued statements of support for the removal of the flag, and five of the state’s largest companies – French tire maker Michelin, Hartsville-based Sonoco, airplane manufacturer Boeing, utility SCANA Corp. and BMW – also threw their weight behind the effort after [the governor's] public remarks."

With the business community and state's largest employers now firmly behind the flag's removal, it will be interesting to see if the issue becomes more of a business-related decision for the state legislature.  The issue is an important reminder of the many political dimensions that are always involved with employment law.  The topic is one that we will follow closely over the next several days as the issue comes to a head.  As this debate is extraordinarily controversial, feel free to share your thoughts on this topic in the comments below...

-- Joe Seiner

Read more here: http://www.thestate.com/news/business/article25193155.html#storylink=cpy

June 23, 2015 | Permalink | Comments (0)

Saturday, June 20, 2015

Rich on Justifying Diversity for Equal Opportunity in the Workplace and Beyond

    In a recently posted paper (forthcoming in the Southern California Law Review), Stephen Rich argues for a way to reconstruct the legal conception of diversity—narrowly endorsed in Grutter v. Bollinger, 539 U.S. 306 (2003) only for the use of an applicant’s race for public university admissions —to better advance equal opportunity in workplace settings and beyond.  More from the abstract:

This Article demonstrates that Grutter underserves the law’s equality values by deferring to institutional constructions of diversity’s benefits, naively equating the achievement of numerical diversity with the accomplishment of those benefits, and failing to distinguish between exploitative and egalitarian uses of diversity. These deficiencies obscure diversity’s potential to reimagine the relationship between equal opportunity, individual achievement, and institutional design. The Article uses the managerial conception of diversity as a foil for the legal conception. One the one hand, proponents of diversity management in the business context seek to exploit workforce diversity for financial gain, and they reject the emphasis of affirmative action programs and civil rights enforcement on the achievement of integration for its own sake. On the other hand, however, proponents of diversity management sometime marshal the diversity ideal also in order to promote new institutional practices that extend to underrepresented persons equal opportunity for individual growth and advancement. The Article proposes a reconstruction of the diversity rationale to fulfill its potential as an instrument of equal opportunity, within and beyond the educational realm and in circumstances including, but not limited to, the implementation of affirmative action programs.

In the paper, Rich argues, among other things, that, a diversity rationale should distinguish between “exploitative and egalitarian uses of diversity” and should endorse only “measures that provide equal opportunities for individual achievement and advancement to all persons, regardless of their social status.” To this end, it shouldn’t matter that an institution’s “diversity” efforts also advance its own self-interest, even if that “spur[s] an institution to pursue diversity voluntarily.”

 

--Sachin Pandya

June 20, 2015 in Employment Discrimination | Permalink | Comments (0)

Thursday, June 18, 2015

Estreicher on Depoliticizing the NLRB

EstreicherSam Estreicher (NYU) has just published Depoliticizing the National Labor Relations Board: Administrative Steps , 64 Emory L.J. 1611 2015). Here's the abstract:

Complaints about the political forces arrayed against the basic labor laws and  about the increasing “politicization” of the National Labor  Relations Board are hardy perennials. The charge remains a constant, only those who level it differ depending on which party is in the White House. On the assumption that legislative change is not in the offing, what can the Board on its own do to improve its reputation in Congress and in the courts and, at the same time, enhance its effectiveness as the essential government agency to protect workers in dealings with their employers?

rb

June 18, 2015 in Labor Law, Scholarship | Permalink | Comments (0)

Ohanesian on 302 & Card Check Neutrality Agreements

CardNick Ohanesian (Judge, Social Security Administration) has posted on SSRN his article (just published at 45 U. Mem. L. Rev. 245 (2014)) Does 'Why' or 'What' Matter: Should Section 302 Apply to Card Check Neutrality Agreements? Here's an excerpt from the abstract:

... In this article I will trace the histories of Section 302 and card check neutrality agreements. I will discuss how different courts have treated the application of Section 302 to card check neutrality agreements. Then I will look at the attempts to resolve the conflict between Section 302 and card check neutrality agreements by first looking at the issues of intent and whether card check neutrality agreements are covered by Section 302. Finally, I will propose looking at extrinsic evidence to decide on a case by case basis whether card check neutrality agreements run afoul of Section 302.

rb

June 18, 2015 in Labor Law, Scholarship | Permalink | Comments (0)

Wednesday, June 17, 2015

Schwartz on Religious Employers and the NLRA

Supreme CourtDavid Schwartz (NLRB, writing on his own behalf) has just posted on SSRN his article, The NLRA's Religious Exemption in a Post-Hobby Lobby World: Current Status, Future Difficulties, and a Proposed Solution, which is being published in the ABA Journal of Labor and Employment Law.  The abstract:

This article discusses the relevance of the Supreme Court’s Hobby Lobby decision in relation to the National Labor Relations Act (NLRA). Writing as an individual and not on behalf of the NLRB, Mr. Schwartz reviews the broad issue of employment law in religious settings and the development of the NLRA’s religious exemption. He suggests a standard for application of the Board’s religious exemption designed to achieve an appropriate balance of the competing interests between employer's religious rights and employees' regulatory protections.

It's great to see someone address this issue.  I've already been introducing Hobby Lobby in my labor law (and other courses), although it's hard to predict exactly how much it's going to impact those areas.  But with Hobby Lobby and the NLRB's new Pacific Lutheran standard, the issue of religion and labor law will be quite interesting.

-JH

 

June 17, 2015 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Fired for Refusing 24-hour Electronic Monitoring?

 

Phone

In an interesting case filed in California state court, a worker alleged that her former employer had improperly attempted to continually monitor her movements through an app downloaded on her electronic device.  The employee objected that the app monitored her off-work duty movements, and uninstalled it from her device.  The complaint alleges that the employer even "bragged that he knew how fast she was driving at specific moments."  An interesting article over at theguardian.com summarizes the issue [and allegations]:

“Plaintiff expressed that she had no problem with the app’s GPS function during work hours, but she objected to the monitoring of her location during non-work hours and complained to [her employer] that this was an invasion of her privacy. She likened the app to a prisoner’s ankle bracelet and informed [her employer] that his actions were illegal. [Her employer] replied that she should tolerate the illegal intrusion."

It is interesting to see how the employment laws have (and continue) to change in light of these emerging modern technologies.  The courts have not been particularly receptive to worker invasion of privacy claims in general, but it will be interesting to see how this case plays out.  We will keep you posted on any developments.

-- Joe Seiner

June 17, 2015 | Permalink | Comments (0)

CA Labor Commission: Uber Driver is Employee under California Labor Code

    Yesterday, Uber filed a notice of appeal in Berwick v. Uber Technologies.  Barbara Berwick was an Uber driver who complained to the California Labor Commission that Uber had, among other things, failed to reimburse her for business expenses in violation of California’s Labor Code.  In response, Uber argued that Berwick, while working for Uber, had been an independent contractor, not an employee, and therefore was not entitled to what she sought.  Following the multi-factor test set forth in S. G. Borello & Sons, Inc. v Dept. of Industrial Relations, 48 Cal. 3d 341 (Cal.1989), a Labor Commission hearing officer concluded, by order dated June 3, 2015, that Berwick was an employee under California’s Labor Code--Uber had not met its burden of proving otherwise—and ordered Uber to pay Berwick $4152.20 in reimbursable business expenses and interest.

    In concluding that Berwick was an employee, the Labor Commission’s ruling identified several salient features of the work arrangement. Uber retained enough control over the operation “[b]y obtaining the clients in need of service and providing the workers to conduct it.”  It didn’t matter that Berwick, not Uber, owned the vehicle she drove. Berwick’s work was “integral” to Uber’s business—providing “transportation services to passengers.” Without people like Berwick, Uber’s business “would not exist.” 

    The Commission also rejected Uber’s position that it was just a “neutral technological platform” for drivers and passengers.  Rather, Uber controlled “every aspect of the operation,” including vetting prospective drivers with background checks and controlling the “tools the drivers use; for example, drivers must register their cars with [Uber], and none of their cars can be more than ten years old.” Uber also monitors drivers’ approval ratings and terminates “their access to the application if the rating falls below a specific level (4.6 stars).”  Only Uber alone has the discretion to negotiate a cancellation fee with the passenger.  Uber discourages drivers from accepting tips “because it would be counterproductive to [its] advertising and marketing strategy.”  In contrast, Berwick’s “car and her labor were her only assets.”  She didn’t work using “‘managerial’ skills that could affect profit or loss.” Except for her car, she had no investment in the business.  Uber gave her its “iPhone application, which was essential to the work” and without which she wouldn’t have been able to perform the work.

    This ruling follows a federal district court’s decision in O’Connor v. Uber Techs. Inc., No. 3:13-cv-03826 (N.D. Cal., March 11, 2015) to deny Uber’s summary judgment motion—also on whether an Uber driver was an employee or an independent contractor under California law.

 

--Sachin Pandya

June 17, 2015 | Permalink | Comments (1)

Saturday, June 13, 2015

Study on Older Workers Challenges Age Bias

As we all know, age was not included with other categories of discrimination in the passage of Title VII.  Rather, Congress commissioned a study to examine more fully the extent of age discrimination before debating legislation on the issue.  That study performed by the Wirtz Commission revealed many of the prejudices that existed against older workers, ultimately leading to the passage of the ADEA in 1967.  The EEOC still receives a high number of charges of age discrimination, and the case law is replete with instances of this form of prejudice. 

A recent study by the AARP, however, challenges some of the existing biases in this area.  That study is discussed over at Forbes.com.  In particular, the study found that older workers are no longer substantially more expensive than younger employees, that older workers are more productive than their younger counterparts, and that older workers are far more proficient in emerging technologies than they are given credit for.  From the article, which notes that the study found that:

"[B]ecause of changes in how companies compensate their employees (including pay being tied more closely to performance than to tenure), older workers do not cost significantly more than their younger colleagues. . .  Even in physically demanding jobs like assembly line work, older employees tend to perform better because, quite simply, they make fewer mistakes. . . [O]lder workers not only are well-versed in the use of technology — computers, tablets, social media and the like — but are eager to learn about new tech developments in their fields so they can keep up."

In is interesting to see the results of the study which directly challenges some of the more traditional discriminatory notions of age and older employees.  The Forbes article and study are well worth a read if you have the time this summer.

- Joe Seiner

June 13, 2015 | Permalink | Comments (1)

Thursday, June 11, 2015

Update on NLRB Jurisdiction over American Indian Casinos

FletcherMatthew Fletcher (Michigan St.) writes to update us on recent cases concerning the applicability of the NLRA to American Indian casinos. In NLRB v. Little River Band of Ottawa Indians Tribal Gov't (links are to Turtle Talk blog), the Sixth Circuit held that the Act applies to the Band's operation of a casino. In Chickasaw Nation & Teamsters Local 886, the NLRB declined jurisdiction over casino employees to avoid abrogating treaty rights.

Also of note, Matthew just posted on SSRN his essay A Restatement of Federal Indian Law?, 40:4 ABA Human Rights Magazine 23 (May 2015). The essay describes the ongoing restatement project on the law of American Indians being conducted by the American Law Institute.

rb

June 11, 2015 in Labor Law, Scholarship | Permalink | Comments (0)

Tuesday, June 9, 2015

Seiner on the Constitutional Implications of Wal-Mart v. Dukes

    In Wal-Mart Stores v. Dukes (2011), the US Supreme Court ruled in part that a district court had improperly applied Federal Rule of Civil Procedure 23(a)(2) (requiring “questions of law or fact common to the class”) when it had certified a plaintiff class in a Title VII pay discrimination lawsuit against Wal-Mart, because those plaintiffs had provided “no convincing proof of a companywide discriminatory pay and promotion policy.”  Since then, some have argued for reading Wal-Mart’s gloss on FRCP 23(a)(2) into the Fourteenth Amendment’s Due Process Clause to set a minimum necessary condition for class actions under State law as well as federal law.

    Enter Joe Seiner (our fellow co-blogger), who has posted a new paper: “Commonality and the Constitution: Applying Wal-Mart to State Court Cases,” forthcoming in the Indiana Law Journal (2016).  From the paper:

This Article begins by explaining the contours of the Wal-Mart decision, emphasizing the Court’s view of commonality under the federal rules. Next, this paper discusses the argument that Wal-Mart creates a constitutional floor for commonality in all class-action litigation. This paper critiques this argument, and explains why the Wal-Mart decision should be limited to federal court claims brought under Rule 23. Finally, this Article develops a normatively fair definition of commonality, identifying five core guideposts that should be considered when determining whether a class-action claim satisfies the Due Process Clause. This Article explains the implications of adopting the proposed guideposts, and situates the proposed framework within the context of the existing academic literature. . . .

[Those guideposts:]  [T]o satisfy the Due Process Clause of the Constitution with regard to commonality, all complex litigation must: (1) present a uniform company policy or problem that is (2) effectuated by management level employees, (3) creates common harm; and (4) the case must include mutual questions shared by all plaintiffs (5) that are capable of resolution across the entire class.

This topic is particularly salient given the Supreme Court’s recent decision to grant a cert. petition in Tyson Foods, Inc. v. Bouaphakeo.

 

--Sachin Pandya

June 9, 2015 in Employment Discrimination | Permalink | Comments (0)

Congressional Prohibitions on Private Male/Female Staffer Interactions

Capitol

In an interesting Op-ed over at CNN.com, the author highlights an interesting trend inside the beltway.  Many political officials appear to be adopting policies which prohibit male and female staffers from spending time alone -- regardless of whether the time is in a private office, the car, or at an event.  The policies appear to be a (over?)reaction to many of the scandals that have grabbed headlines over the months, years and even decades.  From the article:

"Such policies . . . assign to women the role of bringing down men and perpetuate the notion of woman as Eve, ever the temptress. Women are cursed before they start, and punished not because they've done anything, but because of a threat that is purely hypothetical. If women don't get ahead in Washington, these policies seem to imply, it's really no one's fault but theirs.  Men, of course, don't face such threats."

These policies are being applied informally, and raise obvious employment discrimination questions.  There are some good disparate treatment and disparate impact questions here that would be great fodder for class discussion next fall. 

--Joe Seiner

June 9, 2015 | Permalink | Comments (0)

Thursday, June 4, 2015

Reminder: Seton Hall Forum

Submissions for the 10th Annual Seton Hall Employment and Labor Law Scholars Forum, to be held on October 9th,  are due on Monday, June 15th.  More details here

June 4, 2015 | Permalink | Comments (0)

Wednesday, June 3, 2015

New ImageThose who have ever sat in a traffic jam or spent hours in the emergency room might take  note of the Third Circuit’s recent decision in Bonkowski v. Oberg Indus., holding the time an individual is officially admitted to a hospital can make or break her FMLA claim. The question the court answered was what constitutes an “overnight stay” at a hospital, which would determine whether Bonkowski could bring an FMLA suit against his employer for his termination for trying to deal with his medical issues.

The outcome was a calendar day plus rule: an overnight stay is “a substantial period of time” from one calendar day to the next measured by the employee’s time of admission and discharge. Bonkowski v. Oberg Indus., Inc., No. 14-1239, at *19 (3d Cir. May 22, 2015) (2-1) 

A little background is instructive. The definition of “overnight stay” is the final link in a chain of statutory interpretation to determine whether an employee has a serious health condition that qualifies for FMLA protection. The statute itself defines a serious health condition as one “that involves inpatient care…or continuing treatment by a health care provider.” 29 USCS § 2611. But the DOL regulations further define “inpatient” as involving “an overnight stay in a hospital, hospice, or residential medical care facility.” 29 CFR 825.114. The question of what constitutes an overnight stay is therefore often crucial to whether an employee has a serious health condition under the FMLA.

The Third Circuit’s ruling indicates that a matter of minutes can negate an employee’s claim. Bonkowski was an employee of Oberg, the defendant employer, prior to being admitted to Butler Memorial Hospital. On November 14, 2011 he left work after experiencing chest pains and was admitted to the hospital a few minutes after 12:00 midnight. The following day, Oberg terminated Bonkowski for walking off the job. Though his time in the hospital as an inpatient spanned approximately fourteen hours, most of them in what would have been darkness at that place and time of year, the Third Circuit dismissed his FMLA suit against Oberg because he did not stay from one calendar day to the next.  

A purely temporal standard does not seem particularly apt considering that Bonkowski would probably have won if he were admitted at 11:59pm – fourteen hours (in a hospital at least!) is a substantial period in anybody’s view. The announced standard frustrates the remedial purpose of the FMLA by failing to account for the ways admission might be delayed that are irrelevant to the severity of the patient’s medical condition. Bonkowski, as Judge Fuentes argued in dissent, because admission could be delayed by traffic, the particular day of the week, the overall amount of patients, understaffing, geographic region, etc. It also has the absurd result of providing coverage for an employee admitted at 11:00pm and discharged at 1:00am – depending on what “substantial” means – while denying coverage to individuals like Bonkowski.

So what led to this conclusion? Surprisingly enough, the trial court had adopted an even more draconian “sunset to sunrise” approach, which would be a surprise about the meaning of “overnight’ to anyone whose kids had a sleepover. The Third Circuit reasoned that such a rule would yield erratic results because sunset and sunrise are seasonal and vary according to geographic location.  But it also criticized Bonkowski’s alternative “totality of the circumstances” test as being litigation-fomenting because of its unpredictable nature. This is likely accurate, but the “totality of the circumstances” has merit nevertheless since courts could consider all relevant factors of an employee’s hospital stay such as length of time, admittance to a room, the extent of testing, and whether the employee spent at least a portion of traditional night hours in the hospital. The totality of circumstances approach appears an improvement over the calendar day rule, but its propensity for increased litigation and inconsistent outcomes is problematic. 

Perhaps the best definition is one that can be grasped by a reasonable employee, and, from that perspective, the Third Circuit’s ruling has the same propensity for confusion as the “totality of the circumstances.” While “calendar day” is clear enough, the Third Circuit declined to expand on what would constitute a “substantial period of time” between one calendar day and the next, suggesting (but not committing to) a minimum of 8 hours. Id., at *47. At this point, none of the proposed methods seem to balance equity with a definitive standard.

The most puzzling aspect of this debate is that Bonkowski was admitted as inpatient, yet the hospital’s designation was not enough to move the court. The District Court deemed this fact unpersuasive because, even though the hospital’s designation meant Bonkowski’s condition required an overnight stay, that did not mean he actually stayed overnight. Bonkowski v. Oberg Indus., 992 F. Supp. 2d 501, 509 n.9 (W.D. Pa. 2014). In any event, the courts seem to have prioritized the DOL’s requirements over the statute's language by implying that an employee can be medically but not legally inpatient. That distinction far exceeds the ability of an ordinary, reasonable employee to understand, especially one who is likely to be in pain if not crisis at the time.

Maybe the problem is an overlooked Chevron issue. The District Court rejected the hospital designation because “inpatient care is defined in the regulations as an overnight stay, meaning a plaintiff must stay overnight to qualify as receiving inpatient care.”  Yet the statute speaks of “inpatient” and it’s the regulations that add the “overnight” criterion. Arguably, when a hospital decides that a patient requires inpatient care, that should suffice to establish the severity of her condition, even if she was admitted a few minutes after midnight.

And then there’s the emergency room question. By speaking of “inpatient” care, the FMLA makes clear that a trip to the ER doesn’t suffice. But suppose a patient spends three or four hours in the ER and is then admitted inpatient. Does it follow that the time before formal admission is irrelevant to the question of coverage, or even to the question of what counts as overnight?

The bottom line is that employees should be able to discern whether or not they have FMLA coverage. For now, we’ll have to wait and see how the calendar day rule plays out.

 CAS

Thanks to my research assistant, Samira Paydar, for her help on this. 

June 3, 2015 in Worklife Issues | Permalink | Comments (0)

Monday, June 1, 2015

Eisenstadt on Causation in Criminal/Employment Cases

Temple

Leora F. Eisenstadt (Temple, Fox School of Business), has just posted on SSRN her interesting article, "Causation in Context", which critiques the Supreme Court's application of similar causation standards to employment discrimination and criminal law cases.  The abstract is below:

"Causation in Context examines and critiques the Supreme Court’s January 2014 decision in Burrage v. United States and the false equivalency drawn between factual causation standards in criminal law and employment discrimination law. In nearly all of its opinions on factual causation, the Court has looked to the “ordinary meaning” of statutory language, cautioning, in some form or another, that “text may not be divorced from its context.” Nonetheless, the Court continues to do just that, applying linguistic meaning across statutes without consideration of its context, the type of statute in which the language is found, the policy goals at issue in its creation, and the overall functioning of causation in the relevant area of law. That was certainly the case in Gross v. FBL Financial Services, Inc. and University of Texas Southwestern Medical Center v. Nassar, the Court’s recent factual causation employment cases. In Burrage, however, the Court takes this acontextual approach one step further by drawing an equivalency between criminal law and employment discrimination that is not only illogical but also potentially detrimental to future employment discrimination jurisprudence.

This article draws on the existing scholarly critique of “but-for” causation in disparate treatment cases and argues that the Burrage Court’s false equivalency between criminal law and employment discrimination law is as damaging as the Court’s decisions in Gross and NassarCausation in Context examines the history of “but-for” causation in employment cases, explores the four major problems with the Burrage approach, and details the ways in which it is likely to negatively impact discrimination doctrine into the future."

The article is an interesting read, and I definitely recommend it to anyone looking at causation issues in the employment discrimination area.

-- Joe Seiner

June 1, 2015 | Permalink | Comments (1)

Decision in EEOC v. Abercrombie

Supreme CourtThe Supreme Court issued its decision in EEOC v. Abercrombie today.  As a reminder, this is the case in which a female job applicant (Samantha Elauf) who wore a head scarf was rejected for a job because it conflicted with company dress policy.  The employer argued that there was no religious accommodation claim available unless the applicant or employee specifically noted the need for such accommodation (in other words, there was no religious discrimination because she didn't say the head scarf was for religious reasons and, as a result, the employer didn't need to see if there was a reasonable accommodation).  The Court rejected that argument in a decision joined by 7 Justices, with Alito concurring and Thomas concurring in part and dissenting in part.  From the syllabus:

To prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need. Title VII’s disparate-treatment provision requires Elauf to show that Abercrombie (1) “fail[ed] . . . to hire” her (2) “because of ” (3) “[her] religion” (including a religious practice). 42 U. S. C. §2000e–2(a)(1). And its “because of” standard is understood to mean that the protected characteristic cannot be a “motivating factor” in an employment decision. §2000e–2(m). Thus, rather than imposing a knowledge standard, §2000e–2(a)(1) prohibits certain motives, regardless of the state of the actor’s knowledge: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. Title VII contains no knowledge requirement. Furthermore, Title VII’s definition of religion clearly indicates that failure-to-accommodate challenges can be brought as disparate-treatment claims. And Title VII gives favored treatment to religious practices, rather than demanding that religious practices be treated no worse than other practices. 

The Court made clear that Title VII was only concerned with whether religion was a motive, no matter what the employer's knowledge was.  Although that seems a bit hard to distinguish, especially for juries, as in most cases, a plaintiff would have a hard time showing motive without knowledge (indeed, the Court recognizes in a footnote that it may be hard or impossible to show motive without some knowledge).  That said, it does distinguish Title VII's religious accommodation from the ADA, which specifically refers to "known" limitations.  For the case at hand, this means that even if Abercrombie did not know she wore the scarf for religious reasons, they will still violate Title VII if she can show that they refused to hire her in order to avoid making an accommodation.  For instance, if Abercrombie suspected that this was a religious headscarf, but couldn't confirm it, the plaintiff could show that the desire not to accommodate was a motivating factor for the rejection.

Another important aspect of the decision is that the Court held that Title VII puts religion in a favored position.  Rejected Abercrombie's argument that a neutral policy (dress code) couldn't be discriminatory, the Court stressed that employers must reasonably accommodate religious practices.  What it didn't say though is that the reasonable accommodation duty is very narrow under previous cases.  In other words, Elauf still has work to do to win this one.

-JH

June 1, 2015 in Employment Discrimination, Labor and Employment News | Permalink | Comments (0)

Wednesday, May 27, 2015

Problems with the New Uber Economy

There is a fascinating article over at the Washington Post on some of the issues that are arising with non-traditional jobs such as those employed by Uber, AirBnb, Taskrabbit and others.  While these jobs can provide workers with unparalleled flexibility, they are also creating challenges for some of the employees to make a livable wage.  From a survey detailed in the article:

"These workers' biggest problem is making enough money. That was the most common reason for these people to drop the job they had, with 42.9 percent saying it didn't generate enough income. And part of that has to do with the fact that they just couldn't get enough work, with 49.2 percent of respondents saying lack of hours was their biggest 'pain point.'"

The article also addresses the possibility of some governmental intervention on the issue.  It is an interesting read, and an important reminder that the traditional workplace is changing with modern technology and other advances.

-- Joe Seiner

May 27, 2015 | Permalink | Comments (0)

Tuesday, May 26, 2015

EEOC Oversight Hearings

EEOC

image from eeoc.gov

The Senate HELP Committee recently conducted oversight hearings on the EEOC's enforcement process (May 19, 2015).  The hearings are now available online.  The focus of these hearings is primarily on the EEOC's enforcement and litigation programs.  Chair Jenny Yang testified through both a written and oral statement (available here), as well as General Counsel David Lopez (available here).  The hearings are interesting and provide a helpful perspective on the EEOC's approach to litigation.  While these hearings took place last week, the EEOC's website is a great source of information for this type of testimony before Congress, and includes older hearings on pay equity  as well as issues related to age discrimination.

The hearings are definitely worth taking a look at, particularly if you are working on any scholarship related to these issues.

-- Joe Seiner

May 26, 2015 | Permalink | Comments (0)