US Department of Labor 0-2 versus Southern District of New York

 

Not likely to see a high fastball any time soon, the US Department of Labor has seen Federal Courts strike down two of its recently promulgated regulations.

On August 3rd, a federal judge in the Southern District of New York struck down regulations released under the Families First Coronavirus Response Act ("FFCRA") which had narrowed the range of persons eligible for emergency paid leave.  The original regulations defined "health care provider" in two separate ways.  Relating to eligibility for leave, the definition was fairly narrow, but relating to which employers were exempt from offering leave, the same term was very broadly interpreted in the regulations.  The court invalidated this contradiction and instructed the agency to come back with something better.  (Parenthetically, a draft regulation was promulgated one month later, on September 3, 2020 and is available here.)

More recently, on September 8th, another Southern District of New York federal judge invalidated a significant number of provisions in the Department of Labor's recently promulgated "joint employer" rule under the Fair Labor Standards Act.  The court challenge had been raised by a number of state attorneys general (including the Pennsylvania attorney general) who had raised both procedural and substantive objections to the rule.  The attorneys general claimed that the promulgation had taken place in violation of the Administrative Procedures Act and that the rule itself contravened certain protections enacted by Congress under the FLSA.  The court called the rule "arbitrary and capricious" which is just about the meanest thing you can say about a rule.

Parenthetically, this is not the first time this administration has been castigated by the courts for haphazard rulemaking.  Even the United States Supreme Court got into the action in last term's Kisor v. Wilkie, 139 S.Ct. 2400 (2019) invalidating the administration's attempt to rescind DACA.

Virus? What virus?

Unless you're living under a rock (and that might be one of the safest places right now), you are somehow affected by the Coronavirus Pandemic raging across the globe.  While the disease itself is far less commonplace than many other pandemics, giving rise to careless cynicism about how to best approach the problem, as well as generating heaping loads of misinformation, the contagiousness of the disease as well as its mortality rate are enough to give all but the most stubborn cause to take notice.

Apparently even the United States Congress has managed to stir from its months long lethargy and partisan bickering to actually pass some legislation and send it on to the President, who has managed to sign the legislation in between press conferences where he says things that medical professionals (and even the Vice President) have to tastefully and calmly rebut.

I have prepared a comprehensive guide to Pennsylvanians who are facing the triple whammy of the pandemic, the Families First Coronavirus Response Act (or "FFCRA" among friends), and Governor Wolf's "shut down" order applying to all "non-life-essential businesses."  Parenthetically, all businesses are life-essential to their employees, but I digress.

You can find my guide to the new law, which is effective April 1, 2020 here.

I will update it as more legislation, such as the widely touted "Two Trillion Dollar Relief" law, wends its way into enactment.

Hang in there, friends.  Practice social isolation, and wash those hands!

This is not exactly why we encourage random drug testing.

The availability of medical marijuana, employee use of heavy equipment, the opioid "epidemic," and many other problems lead employers to require random drug testing.  Such testing has to be truly random and not administered in a discriminatory fashion so as to remain compliant with statutes such as the Americans with Disability Act.  (See here for how the EEOC suggests handling such testing.)

Drug testing is not ordinarily used to determine whether an employee is pregnant.  To do so would clearly violate Title VII as gender based discrimination "because of sex."  (And not just because pregnancy is almost always because of sex, but I digress).

But when an Australian basketball pro failed a drug test  he found himself banned from the game because the test concluded that he was pregnant.

No, of course he wasn't really pregnant.  Seems that he had submitted his girlfriend's urine sample instead of his own, while she was blissfully ignorant of the fact that she was pregnant.

Surprise!  You're going to be a daddy!  Surprise!  You're fired!

Think Before You Click on "Post."

Joseph Gumpher, III was a junior painter for Epic Metals Corporation who was told when hired that he might occasionally have to work evenings.  Mr. Gumpher was married with four children, one of whom was a child with special needs.  When Mr. Gumpher's job started, his wife was not working. Eventually, his wife did get a job on night shift.

There was no career conflict between the couple until December of 2015 when Mr. Gumpher was assigned again to night shift.  His wife was able to switch to day shift at that time, but she was also told that subsequent requests would be denied.  When Mr. Gumpher was again asked to work nights a few months later, he told his supervisor and said he couldn't work a night shift.

Then he posted the following to his Facebook account:

"Time for a change, Work decided to have 2nd Shift, (Picked for that) don't like, so chose not to . . . it's a choice you can make when retired.  There are other jobs, time to relax for a while."  

He also stopped going to work, did not ask about returning, and then filed for unemployment compensation benefits.

The referee denied him benefits, the Unemployment Compensation Board of Review affirmed the denial, and after Mr. Gumpher appealed to court on his own behalf, the Pennsylvania Commonwealth Court also affirmed the denial of benefits.

An employee who quits his job due to "necessitous and compelling reasons" may be entitled to benefits.  Certainly there is case law providing that care for children or special needs dependents may justify quitting a job.  The Commonwealth Court found here, however, that Mr. Gumpher's efforts to solve his dilemma were totally insufficient to show that his quit was due to "necessitous and compelling" reasons.

They weren't so crazy about his publicly throwing up his hands in surrender on Facebook either.

While the court's decision was based upon more than just the ill-advised Facebook post, a word to the wise is sufficient.

Don't post anything on Facebook that you don't want to read about in a Pennsylvania Commonwealth Court decision.

The official court opinion may be found here.

Note:  I joined a panel last week at the Solo & Small Firm Section Annual Conference of the Pennsylvania Bar Association which was providing "hot tips" with late-breaking developments in several practice areas.  My area, naturally, was employment law.  Over the next few weeks, I'll highlight a few of these tips in greater detail.

Whistleblowers:  There are two types of whistleblowers under the Dodd-Frank Act.  The first type consists of those whistleblowers who only report internally within a company of irregularities, and the second type consists of those whistleblowers to make external reports to agencies such as provided for under the Sarbanes-Oxley Act.  To date, there has been a split among the circuit courts of appeals as to whether the retaliation provisions of Dodd-Frank extend to both types of whistleblowers, or only those who make external reports.

On June 26, 2017 the United States Supreme Court granted certiorari in Digital Realty Trust, Inc. v. Somers.  You can find the petition for certiorari here.

Presumably some time next term of the United States Supreme Court we will get a definitive answer to the question.

One Spot Where "Mumbo Jumbo" Doesn't Cut it Any More

In an old television commercial for a law firm whose name I cannot recall, two lawyers are standing at a judge's bench, chatting seriously with the robed judge.  "Mumbo jumbo mumbo jumbo," chatters on one of the lawyers, met with their opponent's "Mumbo jumbo, mumbo jumbo" followed by the court's chiming in, "Mumbo jumbo" at which point the voice over announcer says, "We take the 'mumbo jumbo' out of the law."  

An effective commercial?  Guess not.  Like I said; I can't remember the name of the firm.

What has this got to do with employment law?

Pennsylvania statutory law has long provided that any document which simply recites that the signer intended to be legally bound did not require consideration to be enforceable.  This was under the "Uniform Written Obligations Act," 33 Pa. Stat. Section 6.  Specifically that statute says that a written promise "“shall not be invalid or unenforceable for lack of consideration, if the writing also contains an additional express statement, in any form of language, that the signer intends to be legally bound.” 

For years, lawyers have routinely been putting language at the end (or the beginning) of Pennsylvania contracts stating that the signer is "intending to be legally bound" to avoid a challenge to enforcement of the contract for lack of consideration.  Heck, I've done it myself.

What is "consideration," you say?  Consideration is something of value, bargained for and exchanged between parties in exchange for a promise.  (There, Professor Siskind, I remember my first year contracts law.  Would that I had remembered more of it during finals, but that's another story).

When you pay a cab fare (or an Uber fare), you're paying consideration for the ride.  When you collect your paycheck, you're getting consideration for your labor.  When I pay Wawa my $1.49, I'm giving consideration for their agreement to provide me coffee.  And so it goes.

So what happens when the contract says that "you can't work for anyone else in the business for which you're working for me?"  Pennsylvania law has always required consideration for such agreements, known more generically as "non-compete agreements."

But once upon a time an employee's non-compete covenant simply provided that he "intended to be legally bound," and therefore, his former employer argued, they didn't need to give him consideration because the Uniform Written Obligations Act said so.

The Pennsylvania Supreme Court today handed down its decision in Socko v. Mid-Atlantic Systems of CPA, Inc. (142 MAP 2014), rejecting mere OWOA language as a substitute for consideration.  As Justice Todd put it so elegantly in closing the opinion:

[W]e hold that an employment agreement containing a restrictive covenant not to compete may be challenged for a lack of consideration even though the agreement, by its express terms, indicates that the parties “intend to be legally bound” pursuant to the UWOA.

So, employers, if you want that non-compete to stick, make sure you "pay" for it with some form of consideration.  Mumbo jumbo just won't cut it any more.

PA Senator Toomey is Playing Politics with Judicial Appointments

The Third Circuit Court of Appeals, crippled by an overwhelming docket, is also laboring with a vacancy on its bench.  In November of 2014 the White House nominated the Honorable Luis Restrepo to fill the position.  Judge Restrepo only recently took his place on the Eastern District of Pennsylvania Bench after receiving bipartisan support, including the express endorsement of Senator Toomey.

Back in November of 2014, Senator Toomey said, “As both a federal magistrate and district judge, Judge Restrepo has served the people of Pennsylvania honorably and with distinction. He also is dedicated to his community by giving his free time to the Make-a-Wish Foundation. Sen. Casey and I recommended Judge Restrepo to the White House for a seat on the federal district court, and I believe that he will also make a superb addition to the Third Circuit based in Philadelphia."

But now, Senator Toomey has admittedly participated in a Republican backed effort to prevent the Obama administration from seeking any kind of legacy on the Federal bench or appeals courts.  As one conservative think tank member suggested this past March in the Wall Street Journal, “There is little risk of the public outrage that might accompany a DHS shutdown or even a fight over a Cabinet nominee.”

I have appeared before Judge Restrepo both as a district court judge and as a federal magistrate judge before that.  I have always found him to be an open minded, capable, and reasonable judge.  His background as a defense lawyer brought a rare perspective to the Eastern District.  Judge Restrepo's experience offered a viewpoint that restored humanity to what is often a grueling and dehumanizing experience --- employment discrimination litigation.

Hopefully, Pennsylvania voters will remember Senator Toomey's shenanigans with this nomination when Toomey runs for re-election next year.  In the mean time, readers can sign an online petition at this link and read more about Judge Restrepo and the nomination here, here, and here.

Another Shoe Falls: DOL Issues Regulations Redefining Who is a "Spouse" for Purposes of FMLA

Following the Supreme Court's Decision in U.S. v. Windsor which invalidated Section 3 of the Defense of Marriage Act ("DOMA"), federal agencies scoured their enabling legislation to ensure that many Federal benefits and statutory protections were extended to same-sex couples.

The Department of Labor issued its Final Rule, effective March 27, 2015 implementing a "state of celebration" rule for the definition of a "spouse" for eligibility for leave under the Family and Medical Leave Act ("FMLA").  The regulations require an employer to look to the law of the place where the marriage was entered into, instead of the law of the state in which the employee resides.  29 CFR §§825.102 and 825.122(b).   This new definition of "spouse" under the Final Rule includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state.

The Department of Labor Fact Sheet on these changes is here.

Are you the Kind of Employer Whose Employees Have to be Impaired to Work for You?

A recent study released by Mashable claims that 9.74% of Americans have gone to work under the influence of marijuana.  The sample size was 534 and the methodology was via SurveyMonkey, so while I wonder about the scientific reliability of the study and to whom it was directed, there is a lesson to be learned.

Do you run a workplace where nearly 10% of your employees have to get stoned to come to work? Even if they aren't stoned, are they coming in already having ingested alcohol?  I wonder what the study would have revealed if it asked about both alcohol and marijuana.

I get called by people who are having a rough time of it at work all the time.  They have to deal with "bossholes" (that's what we call immediate supervisors who are bullies) making ridiculous demands and giving humiliating "feedback."  These employees daily confront the aggravation of public transit or congested highways only to be greeted by a surly co-worker or supervisor who, under the guise of "business as usual," is completely lacking in social graces or empathy.

It's a rough world out there.  Be the kind of employer where your employees want to work.  Be the kind of supervisor who inspires those whom you supervise to make you look better while bettering themselves.  Remember that almost every one of your employees would leave you in a flash if they won the lottery jackpot.

The late Mike Conrad, playing Sargent Phil Esterhaus on Hill Street Blues used to say at the end of roll call "let's be careful out there."

I say "let's be human beings out there."

Who Says it's Recess?

One thing I know is you don't stand in the doorway of an elementary school where the bells have just rung for recess.

Bells are easy.  (Remember the expression, "You can't unring a bell?")  

But recesses in legislative sessions, well, they're a little more interesting.

Last year the DC Circuit Court of Appeals invalidated a number of so-called "recess appointments" to the National Labor Relations Board by President Obama.  The opinion in Canning v. NLRB is here.

Canning stems from a time when President Obama took advantage of a dysfunctional Senatorial calendar, where the leadership and minority were playing all kinds of calendar games under a "unanimous consent agreement."

Let's see how the D.C. Circuit Court of Appeals described it:

[T]he Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012. The agreement stated that "no business [would be] conducted" during those sessions. During the December 23 pro forma session, the Senate overrode its prior agreement by unanimous consent and passed a temporary extension to the payroll tax.  During  the January 3 pro forma session, the Senate acted to convene the second session of the 112th Congress and to fulfill its constitutional duty to meet on January 3.

The President's power to make recess appointments is found in the United States Constitution in Article II, Section 2, clause 3, which reads:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

The D.C. Circuit held that recess means "at the end of a session," and not "intrasession," and invalidated the President's appointments (thereby resulting in the NLRB not having a quorum with which to make precedential decisions, including the decision from which Canning appealed to the Supreme Court.)

Canning was argued today before the United States Supreme Court. During oral argument, as reported in more detail here and with even better analysis here, the Supreme Court justices expressed almost universal suspicion for the administration's maneuver.

While the decision could ultimately clarify what a recess appointment is, the specific issue is moot because President Obama has subsequently appointed five new NLRB members, all of whom were confirmed by the Senate on July 29, 2013.

Minimum Wage Alert for Multi-State Employers

The dropping of the Waterford Crystal Ball in Times Square, New York City also ushers in an increase in the minimum wage in New York and 13 other states.

The following states have adopted increases in minimum wage: 

• Arizona
• California
• Colorado
• Connecticut
• Florida
• Missouri
• Montana
• Ohio
• New Jersey
• New York
• Oregon
• Rhode Island
• Vermont
• Washington

In addition, some states, such as California and New York have already enacted further increases which will go into effect later this year or next year.

Some of these states have also increased the minimum amount to those employees who are tipped.  Typically an employer can take a partial "tip credit" against the minimum wage if the employee has signed a wage declaration for those tips.  Ask me about the pizzeria that did not properly calculate the tip credit for its bicycle delivery drivers and paid dearly.

Some municipalities have enacted even higher minimum wages, such as San Francisco and San Jose in California.

The minimum wage in Pennsylvania and under Federal Law remains $7.25, but there is talk in Washington of an increase.  As the Congress lumbers up to a reasonable facsimile of a functioning legislative body, we may see more action in this area.

Check with your human resources professional or labor counsel if you do business in more than one state.

I Wanted to Post Something about the Last Two Days of Argument Before the Supreme Court but....

I did, I really did.  I listened to hours of oral argument and read the briefs, but I've been beaten to it and all I need to say is here.

Enjoy your Easter and Passover holidays.  Next week we'll start talking about what's ahead on the radar for employers and employees in 2013.

To Hell with "Nemo."  Winter Storm Warnings.

Back in my post from January 26, 2011 which you can re-read here, I outlined the requirements for paying employees who miss time due to inclement weather.  Because there is a nameless storm beating down upon the Northeast and especially New England, this information bears repeating.

1.  If you close your office for inclement weather, you may deduct the hours not worked from hourly employees, but not salaried employees.

2.  If you are staying open, you may deduct the hours not worked from hourly employees who fail to report for duty, but obviously there is no change in the pay of salaried workers.  If as a result of staying open, an hourly employee works more than forty hours, you must pay overtime.

3.  If you close early or open late, you may reduced the wages of hourly employees for time not worked, but not salaried employees.

4.  It stands to reason that if an hourly employee was scheduled for more than forty hours, but works less than that because of inclement weather, that employee is not entitled to overtime.  Overtime is based upon time worked, not time scheduled.

So, to recap, salaried employees' wages are unaffected by winter storms, whereas hourly employees may well be affected.

That having been said, I have always espoused the philosophy that most employment disputes can be avoided by employers' liberal use of the "Golden Rule."  Treat your employees with the same dignity and respect with which you would want to be treated.  Or, to put it another way, don't be penny wise and pound foolish.  As I've also said repeatedly here, turnover costs money.

My original post had some references to Department of Labor guidelines; if you are looking for something to read by the light of the fireplace when your power goes out, be my guest.  Then again, if your power has gone out, you may not be reading this.

While we're on the subject, I simply refuse to call winter storms by the names bestowed upon them by commercial services seeking to use such nomenclature as a marketing technique.   During my first year of law school in Boston, I survived what they're still calling "The Great White Hurricane of 1978."  I feel for you New England.  Took me a week to dig my FIAT out of a snow drift (not that doing so was worthwhile, but that's a topic for another post.)

Another take on Conan Doyle's "His Last Bow"

Spoiler alert.  The final “official” Sherlock Holmes story written by Sir Arthur Conan Doyle ends with the great detective Holmes and his arch-enemy Dr. Moriarty heading over the falls in each other’s death-grip as the last act of their final battle.  Today, the parts of Homes and Moriarty will be played by the National Labor Relations Board and the D.C. Circuit Court of Appeals (I will leave it to you which one is which, as opinions will vary sharply).

In a recent D.C. Circuit case, the court invalidated President Obama’s recess appointments to the National Labor Relations Board.  On the other hand, we have that very board, and in particular its Acting General Counsel, issuing reports about the interplay between social media and the workplace.  It is tempting to ponder whether the D.C. Circuit’s decision will invalidate everything the NLRB has put out on the subject of social media.  If that is the case, what restrictions, if any, can an employer now place on its employee’s social media activities without running afoul of the “collective action” prohibition of the NLRA?

The short answer is, “nothing has changed.”  The D.C. circuit’s case, Canning v. NLRB was limited to one decision, and is likely to land before the U.S. Supreme Court, especially because the issue was raised by an adroit maneuver by the United States Senate in creating the illusion that it was in session to avoid actually being in recess.  In some respects, the Canning decision is more important for its analysis of when recess begins and a Recess begins (why don’t they just use bells like we did in elementary school?)

The bottom line is that the NLRA permits employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  Social media may be the means by which that goal is achieved.  While personal complaints may not constitute “concerted activities,” it remains important for every employer to ensure that no action taken against an employee based upon a social media posting can possibly be interpreted as concerted activity.

Even if the board members appointed during recess (or Recess) are unceremoniously “un-appointed,” the NLRB is likely to continue the tack it has to date examining social media policies as encroaching on the employees’ rights to collective action.  In fact, the NLRB has already issued a press release essentially stating that they will proceed with business as usual.  There is no love lost between the D.C. Circuit Court of Appeals and the NLRB.  If the multiple Federal Express decisions involving independent contractor versus employee status are any indication, these two have been at each others’ throats for a long time, and there’s no clear sign of any impending peace, or “last bow,” as it were.

So, it’s best not to step between these two enemies and play it safe with your social media policies. 

So Who's Dead, Dead, Dead, Dead Now?

Last week U.S. Supreme Court Justice Antonin Scalia during a book tour plugging his new book “Reading Law” spoke to an audience at PrincetonUniversity.  While he took some well deserved flack for his stance on gay rights, there was a different exchange which I found more problematic.

Specifically he was asked about approaching constitutional interpretation as though the United States Constitution were a "living document."

Scalia argued that the Constitution is not a living document; it is “dead, dead, dead, dead.”  (He also called proponents of the “living constitution” approach “idiots,” but we won’t rise to that bait.  Suffice it to say his increasingly strident protestations from extreme right are sounding more and more like that doddering old fool on the park bench shouting at the pigeons.  Okay, I suppose I did rise to that bait, forgive me.)

Scalia's comment raises some of the flaws in the approach to constitutional interpretation known as “strict constructionism.” 

Scalia opines that the constitution can only be interpreted in terms of the context and meaning of its words during the time period in which it was crafted.  It is for this reason, for example, that his dissent in NationalFederation v. Sebelius (the case upholding the Patient Protection and Affordable Care Act, a/k/a “Obamacare” as a constitutional exercise of Congress' taxing authority) he relies upon eighteenth century dictionaries in discerning the intention of the drafters of the constitution.  (Read in his dissent, for instance, where he interprets the words “to regulate” in the context of dictionaries published in 1775, 1777, 1785 and 1828.)

There are at least three ways in which this analysis is intellectually dishonest.  First, this approach assumes that words used in the composition of the constitution were themselves capable of clear interpretation purely in the context of that time.  This was not the case.  Many of the very individuals who participated in the drafting of the constitution became Federal legislators and the record of those first congresses reflect ongoing debate about what the constitution meant even within the context of its own times.  The fact that Scalia himself can identify multiple definitions underscores this point, rather than undermining it.

No later than 1819, in McCulloch v. Maryland, 17 U.S. 316 (1819), Chief Justice John Marshall wrote that the constitution is “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.”

Secondly, the 18th century as a context is itself “dead, dead, dead, dead.”  Documents cannot be interpreted “in context” once that very context has vanished forever.  Any view of that context now is necessarily historical, seen through the prism of the current day and age. 

The founding fathers, for instance, several of whom were among the great scientific minds of their generation (Benjamin Franklin comes to mind), were aware that the future would bring progress, technological and otherwise, and that their document would be one which would require adaptation to future ages.  To suggest that any interpretation of the document compelled the interpreter to remain rooted to the sensibilities and viewpoint of the late eighteenth century is simply intellectually dishonest.  Seriously, when is the last time you had snuff?  Danced a minuet?  Burned a witch at the stake?  (Okay, maybe that last one is overstating the case).

The Pentateuch and the Gospels were written thousands of years ago and yet nobody attempts to interpret these canons in strict terms of the “parlance” of 50 A.D., or 250 B.C.E. and so forth.  For starters, there just aren’t that many people around who speak the Aramaic variant of the day.  No, these ancient documents are always placed in contemporary context when interpreted.  Their readers seek guidance from these sources in contemporary settings.  Similarly, the enjoyment of Shakespeare is not in focusing on the meaning of works in Elizabethan England, but rather what lessons do we glean from Hamlet, Macbeth, King Lear in the context of our current times?

Reading canonical works strictly in the context of their creation is a noble academic pursuit --- for historians --- doing so is not, however, the proper analysis for meaningful contemporary thought or usage.

Finally, “strict constructionism” has historically been the justification behind those who rail against an “activist court.”  This is the easiest argument to defeat.  Historically, whether conservative leaning or liberal leaning courts are “activist” is always in the eye of the beholder.  Which court would have been more activist, one that endorsed the election of George W. Bush or one that validated the election of Al Gore?

In our view, at least, it is not the constitution that is “dead, dead, dead, dead,” it is Scalia's analysis that is.

Pennsylvania Legislature to Unemployed: "First, let's tax all the peasants."

After ignoring the mounting debt to the Federal Government for unemployment compensation payments for several years, both houses of the Pennsylvania Legislature passed, and employers' friend Governor Corbett rapidly signed legislation which would authorize up to $4.5 billion in bonds designed to attack the staggering debt.

In the four years since the economy started to tank in 2008, the legislature has engaged in countless interim steps designed to address this debt by continuously whittling away at the benefits, essentially requiring those victimized by the recession to pay the Commonwealth's debt instead of asking employers to shoulder any responsibility whatsoever.

As a result, Pennsylvania Unemployment Compensation law now provides that:

1. Severance pay above a certain amount is reduces unemployment compensation benefits, regardless of the reason for the severance pay, such as the settlement of an discrimination claim.
2. A claimant is not eligible unless at least 49.5% of his or her base earnings are in the three quarters outside of the highest quarter.  This will knock approximately 48,000 off the rolls right away.
3. The partial benefit credit is reduced one third from 40% to 30%.
4. The maximum weekly benefit is frozen through 2019, seven years from now.

Some of these changes took effect January 1st of 2012, others will take effect next year.  One thing that hasn't taken effect is any increase in the UC tax....not in years.  The ultimate result is the disqualification or reduction in benefits to hundreds of thousands of economically disadvantaged citizens of the Commonwealth.


Meanwhile, claims representatives at state Unemployment Compensation offices are engaging in heightened scrutiny to look for increased opportunities to: (1) seek repayment for benefits already paid; (2) knock off the rolls of the unemployed anyone who accepts a freelance job and reports the income; and (3) call countless unemployed professionals "self-employed" if they accept any consulting work.  Dealing with the brain trust in Erie and Altoona has resulted in increased hearings before referees, an increased need for counsel to assist these now being victimized by the UC system itself --- and on top of it all, the legislature now wants to tax legal fees!

It is simply too hot this July to make Christmas references, but Governor Corbett and the Pennsylvania Legislature are making an early run for Scrooge of the Year.

Some of the information relied upon for this post was obtained from the Society for Human Resources Management, and other information from Michael Hollander, Esquire of Community Legal Services in Philadelphia, whose assistance is sincerely appreciated.
   

Five Things You Haven't Heard in the Shouting Match Over the Health Care Decision.

One of the most wonderful but annoying aspects of the First Amendment right to free speech is that one does not have to have any qualifications whatsoever to hold forth about anything at all.  Certainly the firestorm following yesterday's Supreme Court decision in National Federation v. Sebelius demonstrates this fact, with even two news networks rushing to announce the decision before, as John Stewart and Stephen Colbert pointed out deliciously, turning to page two of the opinion.

In fact, in the other opinion read by Justice Kennedy yesterday, U.S. v. Alvarez, the so-called "Stolen Valor" case, the Supreme Court reiterated its prior holdings that even lying can be protected by the First Amendment.  "[S]ome false statements are inevitable if there is to be an open and vigorous expression of views in public and private con­versation, expression the First Amendment seeks to guar­antee," wrote Justice Kennedy for the majority.  

As such, people on all sides of the debate exercised their first amendment privileges yesterday and continue to hold forth on television, radio, print media, as well as social media sites, despite having little or no qualifications or knowledge upon which to do so, in opining about the healthcare decision.  How many of those individuals actually read the 193 pages comprising of the majority opinion, concurrence, joint dissent, and individual dissent?  My guess is, as Maya Rudolph's character on the recurring delightful Bronx Babes skit from Saturday Night Live "none point none."

So, dear reader, should you choose to elucidate yourself, you may do so by reading the entire decision here.   If not, that's on you.  But here are a few things you will learn from reading the decision (and from having an understanding of other aspects of the Supreme Court and its role in the U.S. Constitution).

First thing you haven't heard:  The crux of the decision is simply stated by Justice Roberts on page 31 of his majority opinion:

[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (concurring opinion).

Quoting Justice Oliver Wendell Holmes, Chief Justice Roberts points out that the Supreme Court's role in our tripartite constitutional government is not to seek to invalidate Congressional acts, but to seek to sustain their viability.  President Obama had said this himself not several weeks ago (no surprise there, after all, he was once a Constitutional Law Professor.)  Just as lies are sanctioned by the First Amendment, truth is often taken to task, as was the President having made such an observation.

Second thing you haven't heard:    Chief Justice Roberts offers an excellent lesson on civics and how the Founding Fathers designed our nation's government, as well as the entire concept of Federalism versus state and individual rights in the first six pages of the opinion.  Anyone with at least a sixth grade education or beyond should read these six pages to learn how things work in the United States. 

1. "In our federal system, the National Government pos­sesses only limited powers; the States and the people retain the remainder." (Page 2).
2. "If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution."  (Page 3).
3. "Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices."  (Page 6).
4. Our deference in matters of policy cannot, however, become abdication in matters of law. “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Marbury v. Madison, 1 Cranch 137, 176 (1803).   (Page 6)    

Anyone who has taken any course in constitutional law or even business law, whether high school, undergraduate, law or graduate business has started the course with Marbury v. Madison, the seminal case establishing the concept and application of "judicial review."  That's how the Supreme Court is supposed to interact with the Congress.  If you've heard anything else, it's wrong.

Third thing you haven't heard:  The Supreme Court is a committee charged with an obligation to seek two things: (1) the narrowest application of principles for each case, to avoid creating sweepingly broad holdings which will provide little guidance in the face of subsequent cases with widely varied facts; and (2) a consensus decision by a simple majority that resolves the dispute.

There is no question that National Federation v. Sebelius is a consensus case.  Court watchers and constitutional scholars have suggested that what is now the "joint dissent" may well have been the majority opinion, until some consensus was reached with the Chief Justice to produce a decision that addressed the case before it (the validity of the Affordable Care Act) without unnecessarily extending concepts of how far the commerce clause of the Constitution permits Congress to go.   A better case testing such principles is no doubt down the road --- this case did not have to be that case, and better that such a politically charged case was not that case.

Fourth thing you haven't heard:  The Supreme Court has not “rewritten the law.”  Many challenging the decision (including the dissenters) accused the majority of completely rewriting the Affordable Care Act.  This argument is disingenuous and factually inaccurate.  Not one word of the statute has been modified.  It continues to exist, minus the Medicaid provision, in the same verbiage as passed by the Congress and signed by President Obama.

Fifth thing you haven't heard:   The joint dissenters (Justices Kennedy, Alito, Scalia and Thomas) built their attack on 18^th century dictionaries and terms, a tautological approach which strains even those who lend credibility to “strict constructionist” theories.  The constitution was not designed to be effective only in 1784.  It was designed for the ages, with a forward looking inspired group of individuals who crafted its structure and terms.  To insist that any interpretation be based solely upon terms and conditions contemporaneous with the documents creation, despite the passage of more than 225 years of technological and social development is to close off the real meaning and intent of the Founding Fathers, and debases the constitution altogether.  

Justice Scalia has become, through the years, quite adroit at arguing strict constructionism in anchoring the right wing of the court.   The joint dissent in National Federation v. Sebelius shows that the only reason he can claim to be the smartest one in the room, is that he has built a very small, very old room, and has hidden the key.  Perhaps it was that recognition that was behind his bitter, inappropriate, dissent on Monday from the bench in the Arizona v. United States.  Perhaps he has begun to realize that his concept of “democracy by oligarchy” is antiquated, and no longer holds a place in genuine constitutional discourse.

I welcome your educated and informed comments on the subject.  But please spare me (and the site) if you have not bothered to at least read the Chief Justice’s Opinion.

Who gets to sue when everyone's a minority?

You'd have to be completely out of touch to miss the reports popping up everywhere today such as here, here, here, here and here (naturally Fox news can't pass this one up) that U.S. Census figures from 2011 show minority births were more than half of births during the year from July of 2010 to July of 2011, extending a longstanding trend.

This trend raises an interesting question which has been on the back burner for years, but will slowly become more central to discussions of employment discrimination:  what happens to discrimination claims when there is no "majority?"

For purposes of Title VII the protected classifications continue to be race, religion, national origin and sex.  Other statutory schemes, such as the Age Discrimination in Employment Act and the Americans with Disabilities Act add being over 40 and being disabled, or having a record of disability or being regarded as disabled to those protected classifications.  In addition, state and local laws have added other protected classifications such as family status and gender identity.

An overly simplistic analysis of discrimination claims focuses on the nature of the protected classification, e.g., "I was fired because I am an African American," or "I did not get the job because I am Hispanic," but this completely misses the point.  The census bureau's report hammers home that we are all in one or another protected classification.

What's unlawful is not discrimination based upon the protected classification itself, but rather letting those classifications play any factor in the employment decision process.  It is no more lawful to hire someone because that person is Caucasian than it is to discharge that person because she is Jewish.  It makes no more sense in the applicant intake process to require physicals for every applicant, regardless of whether a conditional offer of employment has been extended than it does to arbitrarily advertise a position with the warning "you must be able to stand for 8 hours without a break."

I am not advocating what a group of Italian researchers have advocating, that promotional systems may be better if promotions are purely random, discussed in the report Promotion Systems and Organizational Performance: A Contingency Model (Steven E. Phelan and Zhiang Lin), whose research paper may be downloaded here,   What I'm advocating, and what any good employment lawyer will advocate, is that any such decisions need to be made without any consideration whatsoever of such protected classifications.  

And that's whether we're all majority, or we're all minority.

As a postscript, many thanks to my good friends and colleagues Kelly Phillips Erb, better known as Taxgirl Ellen Freedman who blogs here, and Jennifer Ellis who blogs here, and who cornered me at a Penna. Bar Association meeting last week and got me off my butt to post an update here.  

Permission to Smack the Morons

The Philadelphia Inquirer is "reporting" today that pregnancy discrimination in the workplace still persists.

The absurdity of pregnancy discrimination is difficult to fathom when examined from a higher altitude.

The demands that are placed on mothers --- by us as children --- and by spouses, are the kinds of demands that would humble most men.  And lets not even talk about childbirth itself.   Many men behave as though they are dying and incapacitated when simply suffering from the common cold, while many women are still handling full-time childcare, familycare, and homecare demands (all while battling a 102 degree fever).

So it's difficult to understand in the abstract why an employer can have one attitude regarding his own mother or spouse, but an altogether different attitude about that employee who had the unmitigated gall to get pregnant.  It would make George Orwell smile.

There are instances when money damages may not be enough.  The Plaintiff should be permitted also to give the Defendant a smack upside the head.  Kudos to the Plaintiff's counsel here, and shame on the employer.

As I was just saying....

     Not a day after I commented upon the difference between talking diversity and doing diversity, I read in the Philadelphia Business Journal this article pointing out that the hiring of women at big law firms has declined, according to an annual survey by the National Association of Women Lawyers.

     But how is this possible?  How many big firms now have "diversity officers?"  How many profess to provide extensive diversity programs (so they can secure business from clients who insist upon hiring law firms with diversity programs)?  I called the National Bar Association, the US' oldest and largest association of African American lawyers and judges to find out whether they do a similar survey and was unable to find one.

     On the other hand, the American Bar Association has done such studies and found, among other things, that nearly 100% of women of color practicing law have left the practice within a decade after starting.  I am also personally aware of three bar associations with active "diversity committees," but whose membership continues to be a sea of white, male faces (notwithstanding the fact that as a whole, the United States is becoming a sea of considerably diverse faces, which means eventually a serious disconnect between lawyers and their clients).

     As I commented yesterday, it's the doppler shift ---- everyone sees things from their own point of view, but it's basically the same thing if everyone were looking at it at the same time ---- it's sexism and it's racism and it's other types of "isms" prohibited by law, but routinely practiced.

     So if you watch Sheryl Sandberg tonight on Charlie Rose, you can choose to believe the one speeding away on the train to success, or you can look at the numbers.