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.