Yesterday, in the case of Haybarger v. Lawrence County Adult Probation and Parole, the Third Circuit Court of Appeals determined, for the first time in this Circuit, that supervisors who work at public agencies can be held personally liable for violations of the Family and Medical Leave Act (FMLA).
The facts of this case and the analysis employed by the Court in reaching its decision are not overly exciting. In short, Debra Haybarger worked as an office manager for Lawrence County Adult Probation and Parole, and suffered from Type II diabetes, heart disease and kidney problems. Her health problems forced her to miss work often for medical appointments, and the Director of the Adult Probation and Parole, William Mancino, expressed dissatisfaction with Haybarger's frequent illness-related absences. Mancino informed Haybarger that she needed to "cut down" on the days she was taking off and began to ask her why she needed to visit the doctor so much. Haybarger was then formally disciplined by Mancino for her frequent medical absences and eventually terminated by the Adult Probation Office on Marcino's recommendation. Haybarger then sued Lawrence County, Lawrence County Adult Probation and Parole and Marcino for various employment law violations, including the FMLA.
After a complex procedural history, which saw many of Haybarger's claims dismissed, Marcino sought to have Haybarger's FMLA claims against him dismissed as well, arguing that the statutory language of the FMLA did not allow for personal liability. After engaging in a thorough (and none-too-thrilling) parsing of the operative statutory language that defines who is an "employer" under the FMLA, the Third Circuit concluded that this definition includes an individual employed by a public agency who (1) exercises supervisory authority over a complaining employee and (2) was responsible, either in whole or in part, for the alleged FMLA violation. The Third Circuit then examined the specific facts in this case and concluded that enough evidence existed to allow a jury to conclude that Marcino fit this definition as it related to Haybarger.
What really makes this case interesting and important (aside from the fact that this issue had never been decided by the Third Circuit before), is that it widens a Circuit-split that previously existed on this question. In its decision, the Haybarger Court noted that the Sixth and Eleventh Circuits had already arrived at the opposite conclusion - that the FMLA does not permit individual liability for supervisors at public agencies. Additionally, the Eleventh Circuit has similarly held that there is no individual liability for public officials under the FMLA because "an individual officer lacks sufficient control over an employee's employment." The Haybarger Court, however, rejected these rationales and instead chose to follow the lead of the Fifth Circuit, which had previously concluded that individual liability under the FMLA can attach to supervisors at public agencies.
So, we now have at least three Circuits finding no grounds for individual public supervisor liability, and at least two that have taken the opposite tack. With that schism, it seems likely (if not inevitable) that the U.S. Supreme Court will now have to take up this question and determine it once and for all. As they say in show business, "stay tuned folks... there's more after this."
You can read the full Third Circuit opinion in Haybarger v. Lawrence County Adult Probation and Parole here: http://www.ca3.uscourts.gov/opinarch/103916p.pdf
Wednesday, February 1, 2012
Thursday, January 12, 2012
US Supreme Court: First Amendment Bars Discrimination Suits By Ministers Against Religious Employers
Yesterday, in the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the U.S. Supreme Court, for the first time, adopted and sanctioned the "ministerial exception" rule that has been utilized by the Federal Courts of Appeals for 40 years, which provides that the Free Exercise and Establishment Clauses of the First Amendment prohibit ministers, priests, and other religious individuals from suing their ecclesiastical employers for employment discrimination. In short, the Court held that the First Amendment's prohibition on the government's establishment of religion and its guarantee of free exercise and worship prohibit such lawsuits because religious organizations are free to choose which ministers they want to lead and guide their congregation, without interference or the threat of forced-reinstatement or monetary damages imposed by the courts or the government.
This case centered around Cheryl Perich, who was a "called" teacher of students from kindergarten to eighth-grade for the Hosanna-Tabor Church. The Church has two categories of teachers that it employs: "called" teachers and "lay" teachers. "Called" teachers are required by the Church to complete certain academic requirements, including an eight-class course of theological study at a Lutheran college or university, an endorsement of the teacher's local Church district, and the successful passage of an oral examination by Church faculty. Once these requirements are met, the teacher may be "called" by the congregation, upon which the teacher formally receives from the Church the title of "Minister of Religion, Commissioned." "Lay" teachers, on the other hand, are not required to be Lutheran or to be trained by the Church. The Church only appoints "lay" teachers when no "called" teachers are available.
Perich, as a "called" teacher, had completed all of the above requirements, and taught both religious and secular curriculum to her students at the Church. Her duties also involved activities such as leading students in prayer exercises daily, attending weekly school-wide chapel services and even leading those chapel services approximately twice each year.
In June of 2004, Perich was diagnosed with narcolepsy, and began the 2004-2005 school year on disability leave. On January 25, 2005, Perich notified the school principal that she was ready to return to work. The principal, however, informed Perich that the school had already contracted with a "lay" teacher to fill Perich's position, expressing concern that Perich would not be able to return to the classroom. On January 30, the Church held a congregation at which the school's administrators concluded that Perich was physically unable to return to her job either that school year or the next, and requested that Perich resign from her position as a "called" teacher.
Perich refused to resign and produced a note from her doctor indicating that she would be physically able to return to work on February 22, 2005. On that date, Perich arrived at the school and the principal asked her to leave. Later that day, the principal telephoned Perich and told her that she was likely going to be fired. Perich responded that she had contacted an attorney and intended to pursue her legal rights.
On April 10, 2005, a congregation of the Church was convened, and voted to rescind Perich's call in light of the "regrettable" actions that had occurred in February. The next day, the school board terminated Perich's employment on the grounds of "insubordination and disruptive behavior," and because of the damage she had done to her "working relationship" with the school by "threatening to take legal action."
Perich then filed a Charge of Discrimination with the EEOC, alleging that she had been terminated from her employment in violation of the Americans with Disabilities Act (ADA). Perich claimed that the Church had unlawfully retaliated against her for threatening to file a lawsuit under the ADA in February of 2005.
In a unanimous 9-0 decision, the Supreme Court held that Perich's suit, which originally sought reinstatement to her position as a "called" teacher, or alternative damages for back-pay, front-pay and punitive damages, was barred by the First Amendment's ministerial exception. Chief Justice John Roberts, in writing for the Court, engaged in detailed examination of the history and origination of the First Amendment's Free Exercise and Establishment Clauses, and found that they had been adopted against the backdrop of the British Crown's historical interference and control over the appointment of ecclesiastical ministers.
The Court also noted that its own past decisions have reinforced the rule that governmental actions that have the effect of contradicting or interceding in a religious organization's decision as to who shall serve as a minister and under what conditions or circumstances, are unconstitutional under the First Amendment. The same holds true, the Court concluded, with employment discrimination actions brought by ministers against their former religious employers. The Court held that: "[r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments."
Finding that Perich was clearly a minister under the facts and circumstances surrounding her acceptance as a "called" teacher, and the fact that both Perich and the Church had held her out to the public as a minister during the years of her employment, the Supreme Court dismissed Perich's claim for retaliation under the ADA as unconstitutional.
You can read the Supreme Court's full opinion in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC here: http://www.supremecourt.gov/opinions/11pdf/10-553.pdf
This case centered around Cheryl Perich, who was a "called" teacher of students from kindergarten to eighth-grade for the Hosanna-Tabor Church. The Church has two categories of teachers that it employs: "called" teachers and "lay" teachers. "Called" teachers are required by the Church to complete certain academic requirements, including an eight-class course of theological study at a Lutheran college or university, an endorsement of the teacher's local Church district, and the successful passage of an oral examination by Church faculty. Once these requirements are met, the teacher may be "called" by the congregation, upon which the teacher formally receives from the Church the title of "Minister of Religion, Commissioned." "Lay" teachers, on the other hand, are not required to be Lutheran or to be trained by the Church. The Church only appoints "lay" teachers when no "called" teachers are available.
Perich, as a "called" teacher, had completed all of the above requirements, and taught both religious and secular curriculum to her students at the Church. Her duties also involved activities such as leading students in prayer exercises daily, attending weekly school-wide chapel services and even leading those chapel services approximately twice each year.
In June of 2004, Perich was diagnosed with narcolepsy, and began the 2004-2005 school year on disability leave. On January 25, 2005, Perich notified the school principal that she was ready to return to work. The principal, however, informed Perich that the school had already contracted with a "lay" teacher to fill Perich's position, expressing concern that Perich would not be able to return to the classroom. On January 30, the Church held a congregation at which the school's administrators concluded that Perich was physically unable to return to her job either that school year or the next, and requested that Perich resign from her position as a "called" teacher.
Perich refused to resign and produced a note from her doctor indicating that she would be physically able to return to work on February 22, 2005. On that date, Perich arrived at the school and the principal asked her to leave. Later that day, the principal telephoned Perich and told her that she was likely going to be fired. Perich responded that she had contacted an attorney and intended to pursue her legal rights.
On April 10, 2005, a congregation of the Church was convened, and voted to rescind Perich's call in light of the "regrettable" actions that had occurred in February. The next day, the school board terminated Perich's employment on the grounds of "insubordination and disruptive behavior," and because of the damage she had done to her "working relationship" with the school by "threatening to take legal action."
Perich then filed a Charge of Discrimination with the EEOC, alleging that she had been terminated from her employment in violation of the Americans with Disabilities Act (ADA). Perich claimed that the Church had unlawfully retaliated against her for threatening to file a lawsuit under the ADA in February of 2005.
In a unanimous 9-0 decision, the Supreme Court held that Perich's suit, which originally sought reinstatement to her position as a "called" teacher, or alternative damages for back-pay, front-pay and punitive damages, was barred by the First Amendment's ministerial exception. Chief Justice John Roberts, in writing for the Court, engaged in detailed examination of the history and origination of the First Amendment's Free Exercise and Establishment Clauses, and found that they had been adopted against the backdrop of the British Crown's historical interference and control over the appointment of ecclesiastical ministers.
The Court also noted that its own past decisions have reinforced the rule that governmental actions that have the effect of contradicting or interceding in a religious organization's decision as to who shall serve as a minister and under what conditions or circumstances, are unconstitutional under the First Amendment. The same holds true, the Court concluded, with employment discrimination actions brought by ministers against their former religious employers. The Court held that: "[r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments."
Finding that Perich was clearly a minister under the facts and circumstances surrounding her acceptance as a "called" teacher, and the fact that both Perich and the Church had held her out to the public as a minister during the years of her employment, the Supreme Court dismissed Perich's claim for retaliation under the ADA as unconstitutional.
You can read the Supreme Court's full opinion in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC here: http://www.supremecourt.gov/opinions/11pdf/10-553.pdf
Friday, October 14, 2011
Filming Co-workers In Partial State of Undress is Bad.... In Case You Didn't Know
In the legal world, common sense and the law do not always go hand-in-hand. Sometimes what seems practically logical or predictable will not be legally sustainable (or vice-versa). But, on those rare occasions when the law and common sense can exist side-by-side without destroying each other like sparring gladiators, it can be refreshing.
This is one of those moments. In the recent case of Jane Doe v. Luzerne County, the Third Circuit Court of Appeals reversed a trial court's dismissal of a claim brought by a deputy sheriff who alleged that her supervisors and co-workers in the Luzerne County Sheriff's office violated her Right to Privacy under the Fourteenth Amendment when they surreptitiously videotaped her partially nude, showed the video and still photographs to other co-workers in the department, and then stored the files on a county computer where any county employee who had access to the network could find and view them. The district court had thrown out Jane Doe's Right to Privacy claim, finding that while the actions of Doe's supervisor and co-worker in making the video, were "likely ill-conceived and definitely poorly executed," they did not "fall within the zone of privacy protected by the Fourteenth Amendment." (Yes, you read that correctly).
One day, Jane Doe, a Luzerne County deputy sheriff, and her partner entered a residence to serve a bench warrant, only to discover the inside of the residence strewn with garbage and at least one dead animal (a cat) observed on the floor. Doe and her partner soon found themselves crawling with fleas. They radioed back to the Sheriff's Department for instructions on how to handle the flea exposure, and were told to proceed to a local Emergency Management Building (EMB), and wait there in their police cruiser until EMB personnel could construct a temporary decontamination shower and until their supervisors arrived.
After arriving at the EMB, Doe and her partner were met by Arthur Bobbouine, Chief Deputy of the Department and Deputy Ryan Foy, both of whom were Doe's supervisors. Foy brought a video camera and immediately began to film Doe and her partner, who were still sitting in their police cruiser with the windows rolled up. Foy testified that he was videotaping the proceedings for training purposes, and both Bobbouine and Foy instructed Doe and her partner that they had to remain inside the cruiser until the decontamination shower was constructed.
Unfortunately, the EMB personnel were unable to construct the decontamination shower, so Bobbouine instructed Doe and her partner to drive to a nearby hospital, which was equipped with a decontamination facility. After getting to the hospital and sitting in the cruiser for another forty-five minutes (as ordered), Doe finally entered the hospital with Foy videotaping her the entire way. Doe testified that throughout her time in the cruiser, both at the EMB and the hospital, and during her walk into the hospital, she repeatedly asked Foy to stop filming, but he refused, stating it was for training purposes.
Doe proceeded to the decontamination shower room, closed the door behind her, undressed and showered without incident. When she finished showering, however, she noticed that there were no towels in the decontamination area - only a roll of thin tissue paper, of the kind that covers examination tables in doctors' offices. A female Sheriff's Deputy, Joyce, instructed Doe through the closed door to wrap the hospital paper around her private areas so that Joyce could enter the room, examine Doe and ensure that all of the fleas had been removed. Doe wrapped the paper around her private areas, but testified that either the paper itself was semi-transparent, and/or that her wet body caused the paper to become semi-transparent after she wrapped it around herself.
Joyce entered the decontamination room, and closed the door behind her, but was unable to lock it, as the door was not equipped with a lock. With Doe standing with her back to the door, Joyce began to inspect Doe for fleas. Doe testified that at this point, most of her back, shoulders and legs were completely exposed, with only the semi-transparent paper wrapped around her buttocks and breasts.
As Joyce was examining Doe for fleas, Foy opened the door to the decontamination room approximately one foot and began surreptitiously filming Doe. Doe was then startled to hear Bobbouine's voice behind her saying "What's that shit all over your back?" in a reference to Doe's back tattoo. Doe instinctively turned, saw the two men and yelled at them to leave the decontamination room. Doe later testified that the video captured someone saying that he could see her "boobies," and that somebody should grab something to "cover [Doe] up." Doe also testified that her buttocks were visible through the wet paper and that Bobbouine had made a statement (also allegedly captured on video) that he "could see [Doe's] ass."
Joyce again closed the door to the decontamination room behind the men, and finished her examination of Doe. After which, Doe left the hospital in scrubs.
Later that same day, Foy uploaded the video he took of Doe onto his County work computer and showed the footage to several male and female officers. At least one officer testified that Foy had displayed a still image of Doe's bare buttocks. Foy then saved several still images (including one showing the tattoo on Doe's back) and the video he took that day in a public computer file, entitled "Brian's ass," which Doe testified could have been viewed by anyone who had access to the Luzerne County computer network. Of the two still images Foy saved that depicted Doe, both showed the visible outline of her buttocks, covered only by thin, wet hospital paper.
Doe sued the County, claiming that the actions of Foy and Bobbouine violated not only her Right to Privacy under the Fourteenth Amendment, but also her right to be free from unreasonable searches and seizures under the Fourth Amendment. Doe also claimed that the County was liable for an alleged failure to train their officers.
On appeal, the Third Circuit held that, on these facts, the district court committed error by dismissing Doe's Right to Privacy claim. While noting that "the issue of whether one may have a constitutionally protected privacy interest in his or her partially clothed body is a matter of first impression in this circuit," the Court unambiguously found that "Doe had a reasonable expectation of privacy while in the Decontamination Area, particularly while in the presence of members of the opposite sex," and that the facts did not "support the assertion that Doe expressly or implicitly consented to Bobbouine and Foy opening the door or filming the events inside the Decontamination Area." The Court noted that there was also a dispute of material fact as to which of Doe's body parts were exposed to Bobbouine and Foy - Doe had presented evidence that her unexposed breasts and buttocks were revealed to Bobbouine and Foy, while the County had argued that only Doe's back, shoulders, arms and legs were exposed. As such, the Court determined that dismissal of Doe's claim in light of this factual dispute was improper.
The Court also found that the following factors all weighed in favor of finding a Right to Privacy for Doe under these circumstances: (1) the video and pictures may have included images of Doe's exposed breasts and/or buttocks; (2) the potential harm to Doe of dissemination of non-consensual disclosure of those images or video over the Internet was great; (3) the context of the disclosure of the video and images at her work and to her co-workers could increase the harm suffered by Doe; and (4) there were inadequate safeguards imposed against non-consensual disclosure because Foy had uploaded the video and images to a public file where anyone with network access could view them.
Consequently, the Court remanded the case back to the trial court and allowed Doe's Right to Privacy claim to continue.
So, in case anyone out there was fuzzy on this issue, videotaping your co-workers partially nude is a no-no.
You can read the Third Circuit's full opinion in Doe v. Luzerne County here: http://www.ca3.uscourts.gov/opinarch/103921p.pdf
Monday, October 10, 2011
Legal Challenge to Haverford Township Anti-Discrimination Ordinance Continues
Back on February 15, I reported on the new anti-discrimination ordinance passed by Haverford Township in Delaware County, PA, which not only makes it illegal for employers doing business in Haverford Township to discriminate against employees or applicants on the grounds of sex, religion, race and national origin, but also added sexual orientation, gender identity and gender expression as protected classes - something that neither Pennsylvania nor the Federal Government has yet to do.
Since then, a Haverford Township resident, Fred Teal, has filed a lawsuit challenging the validity of that Ordinance, arguing it is illegal because the Township allegedly failed to follow the proper procedures in adopting it. Mr. Teal has also argued that two of the Haverford Township Commissioners should have recused themselves from the proceedings surrounding the adoption of the Ordinance because they have homosexual relatives.
The Delaware County Daily Times is reporting that on September 27, 2011, Judge Pagano of the Delaware County Court of Common Pleas overruled the Township's preliminary objections to Mr. Teal's action, which means that for the moment, the lawsuit will continue. The Township must now file an Answer to Mr. Teal's Complaint.
You can read the full story from the Delaware County Daily Times here: http://delcotimes.com/articles/2011/10/10/news/doc4e92630eb4ce5699604790.txt?viewmode=fullstory
Tuesday, October 4, 2011
In Title VII Cases, Sometimes It's All About the Numbers. . .
On September 28, 2011, in the case of Meditz v. City of Newark the Third Circuit Court of Appeals found that the trial court had improperly dismissed a lawsuit against the City of Newark, which alleged that the City's residency requirement for its non-uniformed employees was unlawful under Title VII because it created an employment bias against white, non-Hispanic applicants. The Court of Appeals held that the trial court had failed to properly evaluate and consider the weight of the statistical evidence that had been presented by the plaintiff.
In April of 2007, Gregory Meditz, a white male who resided in neighboring Rutherford, New Jersey, applied for a non-uniformed job with the City of Newark. Meditz was turned down for the job because he did not live in the City of Newark, and thus did not qualify for employment under a City Ordinance that required all non-uniformed City personnel to live within the City limits. Meditz sued, claiming that the City's residency requirement for its non-uniformed employees was discriminatory and unlawfully barred him from qualifying for a non-uniformed job with the City. Specifically, Meditz argued that the residency requirement worked a disparate impact on white, non-Hispanic job applicants because the racial make-up of the population of Newark did not reflect the racial make-up of the surrounding labor market.
In support of his claims, Meditz produced statistical data that he gathered from publicly available sources, which revealed that in 2007, only 9.4% of the non-uniformed employees of the City of Newark were white, non-Hispanic, while 28.31% of the City's uniformed employees (who are not subject to a residency requirement) were white, non-Hispanics. Meditz also compared the statistics of the racial composition of the City's non-uniformed employees with the racial composition of the non-uniformed employees from the County of Essex, which maintained its County seat within the City of Newark. This comparison showed that 42.96% of the non-uniformed employees who worked for the County were white, non-Hispanics. Meditz also introduced evidence that in 2005, the percentage of white, non-Hispanics that constituted the non-uniformed employees of Essex County and 5 neighboring counties, ranged from 48.09% to 86.49%, with the percentages of white, non-Hispanics employed in the private labor force in those same counties being only slightly lower.
The trial court, however, granted the City's motion for summary judgment, and tossed Meditz's lawsuit, concluding that "these statistics, standing alone, do not constitute sufficient evidence of a significantly discriminatory hiring pattern."
On appeal, the Third Circuit reversed, finding that the trial court had misapplied the law and had failed to lend the appropriate weight to Meditz's statistical evidence. Specifically, the Court held that "Meditz offered statistical evidence showing that the percentage of white, non-Hispanics employed by Newark was lower than the population of white, non-Hispanics in the general population of Newark. Meditz also offered statistics showing the percentage of white, non-Hispanics in surrounding areas both for the general population and for the private and government work forces. Finally, Meditz offered evidence of the percentage of white, non-Hispanics employed by the Essex County government in Newark. Out of all these percentages, the lowest was the percentage of white, non-Hispanics employed by the City of Newark. This compilation of statistics supported Meditz's claim that white, non-Hispanics were under-represented in Newark's non-uniformed work force."
This case provides an excellent illustration of how a disparate impact theory of discrimination under Title VII can be invaluable tool for an individual who believes he or she has been subjected to unlawful discrimination, because in these cases, evidence of discriminatory intent or bias on behalf of the employer is not required. All that a plaintiff needs in order to be successful is to establish a differential employment outcome or treatment that is based upon race, sex, religion, or national origin, which can be proven through statistical analysis and statistical deviations. After all, the numbers don't lie.
You can read the Third Circuit's full opinion in Meditz v. City of Newark here: http://www.ca3.uscourts.gov/opinarch/102442p.pdf
Thursday, August 25, 2011
Supervisor who is terminated for asking subordinates for a loan is not entitled to unemployment compensation
In Weingard v. Unemployment Compensation Board of Review, No.: 2729 C.D. 2010 (Pa. Cmwlth. 8/10/2011), the Commonwealth Court held, in a matter of first impression, that a supervisor who is fired for requesting a substantial loan from a subordinate is not entitled to receive unemployment compensation, even if the employer does not have a specific rule prohibiting the solicitation of loans in the workplace. The Court held that such a request constitutes a disregard of the standards of behavior an employer has a right to expect from its employees.
In this case, Weingard learned that a co-worker was selling a motorcycle for $1,000.00 and he wanted to buy it. But, due to his poor credit history, Weingard knew that he would be unable to obtain a loan from a bank. So, Weingard asked his supervisor for a $1,000.00 loan and was turned down. Weingard then asked five other employees - at least one of whom was Weingard's subordinate - if he could borrow the $1,000.00 and was similarly rejected. One of the employees who was supervised by Weingard complained to Weingard's supervisor about Weingard's request to borrow money, indicating that it made her uncomfortable. The employer conducted a three-week investigation into the matter, after which it terminated Weingard for his requests to borrow money, deeming such an action to be "coercive."
The employer's handbook did not contain any specific rules regarding the lending or borrowing of money between supervisors and subordinates, but did prohibit employees from "operating or acting in any manner that is contrary to the best interests of Employer."
Weingard then filed for unemployment compensation benefits. The Unemployment Compensation Referee granted benefits to Weingard, finding that the employer had failed to meet its burden to establish the existence of a rule regarding the lending or borrowing of money between supervisors and subordinates, and that a violation of that rule could result in termination.
On appeal, the Unemployment Compensation Board of Review reversed, holding that the employer had in fact established the existence of a policy that prohibited Weingard from acting in a manner that was contrary to the employer's best interests. The Board thus denied Weingard unemployment compensation benefits.
The Commonwealth Court affirmed the decision of the Board that denied Weingard unemployment compensation benefits, but did so on different grounds. The Court found that employer's general policy that prohibited employees from "operating or acting in any manner that is contrary to the best interests of Employer," was "so general as to be meaningless to this appeal." The Court held that the Board committed error when it found that Weingard had knowingly violated this vague standard because "[Weingard] testified that he did not know there was a policy prohibiting him from soliciting loans from co-workers, and he did not believe that asking another employee for a loan harmed Employer's interest in any way. Employer provided no evidence to the contrary." Thus, the Court found the Board's conclusion that Weingard had committed willful misconduct by knowingly violating a work rule, was erroneous.
The Court nevertheless determined that Weingard was ineligible to receive unemployment compensation benefits. Examining for the first time whether a supervisor's request of a substantial loan from a subordinate constitutes willful misconduct, the Court found that in asking to borrow $1,000.00 from a subordinate, "[Weingard] used his position of authority in an unseemly way. He may not have used overt threats or direct coercion, but that fact is not dispositive of the issue. [Weingard] held the upper hand in the relationship with the employees he supervised. . . There is an unspoken, and implicit, coercion when a boss makes a request for a significant loan of an employee under his supervision." Therefore, the Court concluded that while Weingard may not have violated a specific written rule of his employer regarding money-lending between employees, his conduct "violated the standards of behavior his Employer had a right to expect," from its employees, which constituted willful misconduct that disqualified him from receiving unemployment compensation benefits.
The moral of the story? If you need a loan, go to a bank.
You can read the WeingardCourt's full opinion here: http://www.courts.state.pa.us/OpPosting/Cwealth/out/2726CD10_8-10-11.pdf
In this case, Weingard learned that a co-worker was selling a motorcycle for $1,000.00 and he wanted to buy it. But, due to his poor credit history, Weingard knew that he would be unable to obtain a loan from a bank. So, Weingard asked his supervisor for a $1,000.00 loan and was turned down. Weingard then asked five other employees - at least one of whom was Weingard's subordinate - if he could borrow the $1,000.00 and was similarly rejected. One of the employees who was supervised by Weingard complained to Weingard's supervisor about Weingard's request to borrow money, indicating that it made her uncomfortable. The employer conducted a three-week investigation into the matter, after which it terminated Weingard for his requests to borrow money, deeming such an action to be "coercive."
The employer's handbook did not contain any specific rules regarding the lending or borrowing of money between supervisors and subordinates, but did prohibit employees from "operating or acting in any manner that is contrary to the best interests of Employer."
Weingard then filed for unemployment compensation benefits. The Unemployment Compensation Referee granted benefits to Weingard, finding that the employer had failed to meet its burden to establish the existence of a rule regarding the lending or borrowing of money between supervisors and subordinates, and that a violation of that rule could result in termination.
On appeal, the Unemployment Compensation Board of Review reversed, holding that the employer had in fact established the existence of a policy that prohibited Weingard from acting in a manner that was contrary to the employer's best interests. The Board thus denied Weingard unemployment compensation benefits.
The Commonwealth Court affirmed the decision of the Board that denied Weingard unemployment compensation benefits, but did so on different grounds. The Court found that employer's general policy that prohibited employees from "operating or acting in any manner that is contrary to the best interests of Employer," was "so general as to be meaningless to this appeal." The Court held that the Board committed error when it found that Weingard had knowingly violated this vague standard because "[Weingard] testified that he did not know there was a policy prohibiting him from soliciting loans from co-workers, and he did not believe that asking another employee for a loan harmed Employer's interest in any way. Employer provided no evidence to the contrary." Thus, the Court found the Board's conclusion that Weingard had committed willful misconduct by knowingly violating a work rule, was erroneous.
The Court nevertheless determined that Weingard was ineligible to receive unemployment compensation benefits. Examining for the first time whether a supervisor's request of a substantial loan from a subordinate constitutes willful misconduct, the Court found that in asking to borrow $1,000.00 from a subordinate, "[Weingard] used his position of authority in an unseemly way. He may not have used overt threats or direct coercion, but that fact is not dispositive of the issue. [Weingard] held the upper hand in the relationship with the employees he supervised. . . There is an unspoken, and implicit, coercion when a boss makes a request for a significant loan of an employee under his supervision." Therefore, the Court concluded that while Weingard may not have violated a specific written rule of his employer regarding money-lending between employees, his conduct "violated the standards of behavior his Employer had a right to expect," from its employees, which constituted willful misconduct that disqualified him from receiving unemployment compensation benefits.
The moral of the story? If you need a loan, go to a bank.
You can read the WeingardCourt's full opinion here: http://www.courts.state.pa.us/OpPosting/Cwealth/out/2726CD10_8-10-11.pdf
Saturday, August 20, 2011
Vote for "Pa Employment Law" as one of ABA's top 100 blawgs for 2011!
The American Bar Association is one again compiling its list of the top 100 legal blogs in the country and is looking for nominations.
If you like "Pa Employment Law" then please take a few minutes and vote!
Just click on this link: http://www.abajournal.com/blawgs/blawg100_submit/, fill out the short form and click submit!
Thanks!!
If you like "Pa Employment Law" then please take a few minutes and vote!
Just click on this link: http://www.abajournal.com/blawgs/blawg100_submit/, fill out the short form and click submit!
Thanks!!
Thursday, August 18, 2011
Think supervisors and employers are immune from retaliation claims because employee discipline is recommended by an internal review committee? Think again.
In McKenna v. City of Philadelphia (8/17/2011) the Third Circuit Court of Appeals held that the Philadelphia Police Department's use of an internal disciplinary review committee to recommend an officer's termination did not insulate that officer's supervisor, or the City itself, from charges of unlawful retaliation and termination. In so doing, the Court analyzed and applied the recent decision of the U.S. Supreme Court in Staub v. Proctor Hospital, in which the Court held that an employer may be held liable for unlawful discrimination based upon the discriminatory motivation of an employee who influenced, but did not make, the ultimate adverse employment decision. (To read more about the Staub decision, see my earlier post on this blog here: http://paemploymentlaw.blogspot.com/2011/03/us-supreme-court-adopts-cats-paw-theory.html
McKenna involved a former Caucasian Philadelphia police officer, Raymond Carnation, who testified that he used to work in a police squad that experienced significant internal racial tensions. Shortly after Sgt. John Moroney was named as the permanent supervisor of Carnation's squad, Carnation complained to Moroney of the issues involving racial tensions within the squad. Carnation also complained to the local district commander, Captain William Colarulo, about the racial tensions. When nothing appeared to be happening to change the environment within the squad, Carnation told Colarulo that he thought Moroney was condoning racism by failing to address the issues Carnation had complained of. Carnation also told Moroney that he thought Moroney was contributing to the problems by failing to take action.
As a direct consequence of making these complaints, Carnation testified that he was subjected to retaliation, such as being assigned unassisted duty in dangerous neighborhoods in unpleasant weather conditions. In another instance, Carnation testified that Colarulo told him that if Carnation filed an EEOC complaint, Colarulo would make Carnation's life "a living nightmare," and ordered Carnation to apologize for making his previous accusations.
In May of 1997, Carnation attempted to call Moroney at the district, in order to speak with him. Carnation received a telephone call back from Colarulo, who ordered Carnation to "not call Sgt. Moroney." The next Saturday, however, Carnation called Moroney and spoke with him about his concerns surrounding the racial issues in the squad. The next day, Carnation called Colarulo, who was off duty and on vacation for the Memorial Day holiday, and told Colarulo that he had spoken to Moroney and resolved many of his concerns, but still wanted to schedule a meeting between all three of them. Colarulo refused to schedule a meeting.
After the Memorial Day holiday, Colarulo served Carnation with disciplinary papers relating to the phone calls that had been placed over the weekend, and brought charges of insubordination, using profane or insulting language to a superior officer, and neglect of duty for failing to comply with oral orders of a superior, against Carnation.
As per Philadelphia Police Department procedures, the charges were then sent to an internal disciplinary board called the "Police Board of Inquiry" or "PBI." The PBI is a three-member panel of police officers, which listens to the evidence before it and then decides what proper sanction, if any, that it will recommend to the Police Commissioner, who holds the power to impose any recommended sanctions.
Carnation pled "not guilty" to the charges against him, and a hearing was held before the PBI, at which Carnation was represented by private counsel, and testified on his own behalf, as did Colarulo. The PBI found Carnation guilty of all three counts brought by Colarulo and, on its own initiative, added a fourth charge of conduct unbecoming an officer. The PBI then recommended Carnation's termination to the Police Commission, who approved the same.
Carnation subsequently filed suit against the City of Philadelphia, alleging unlawful retaliatory termination in violation of Title VII. The jury found that Carnation's termination constituted illegal retaliation that stemmed from his protected activity of complaining about racial discrimination to Colarulo and Moroney during the Memorial Day weekend, and awarded Carnation $2,000,000.00 in compensatory damages.
The City appealed from the district court's decision upholding the jury verdict, arguing that the City could not be held liable for any retaliatory animus held by Colarulo against Carnation, as a matter of law, because Carnation's termination was not carried out by Colarulo. Rather, Carnation's termination was carried out by a separate, internal disciplinary board that made its recommendation to dismiss Carnation only after receiving testimony and evidence in an unbiased, neutral due-process hearing.
The Court of Appeals disagreed and affirmed the jury's verdict against the City. The Court rejected the City's arguments that the use of the PBI insulated the City and Colarulo from liability as a matter of law. Specifically, the Court recognized that in Staub, the Supreme Court held that the test for analyzing whether an employer can be held liable for the discriminatory or retaliatory animus of a non-decisionmaker was not whether the non-decisionmaker exerted "singular influence," over the eventual adverse employment action, but rather whether the non-decisionmaker's animus was the "proximate cause," of the adverse employment action suffered by the employee. The Third Circuit noted that "proximate causation requires only some direct relation between the injury asserted and the injurious conduct alleged and excludes only those links that are too remote, purely contingent, or indirect." The Court held that the record in this case was insufficient to establish that the PBI's role in Carnation's dismissal rose to such a superseding level that it rendered any retaliatory animus harbored by Colarulo remote, purely contingent or indirect. Rather, the Court held that on the evidence presented, the jury was justified in finding that Colarulo's retaliatory animus "bore a direct and substantial relation to Carnation's termination and that the PBI's recommendation was not independent and was foreseeable." This conclusion was further supported by the Staub decision, in which the Supreme Court itself noted that "[a] supervisor's biased report may remain a casual factor if [an] independent investigation takes it into account without determining that the adverse action was, apart from the supervisor's recommendation, entirely justified. . ."
This case illustrates that, following the rule set forth by the Supreme Court in Staub, an employer cannot rely upon the use of an internal disciplinary review process to always insulate it from liability for discrimination or retaliation under Title VII, even when the individuals who participate in the review process have no relation to the employee or to the supervisor who may have recommended disciplinary action.
To read the Third Circuit's full opinion in McKenna v. City of Philadelphia, click here: http://www.ca3.uscourts.gov/opinarch/093567p.pdf
McKenna involved a former Caucasian Philadelphia police officer, Raymond Carnation, who testified that he used to work in a police squad that experienced significant internal racial tensions. Shortly after Sgt. John Moroney was named as the permanent supervisor of Carnation's squad, Carnation complained to Moroney of the issues involving racial tensions within the squad. Carnation also complained to the local district commander, Captain William Colarulo, about the racial tensions. When nothing appeared to be happening to change the environment within the squad, Carnation told Colarulo that he thought Moroney was condoning racism by failing to address the issues Carnation had complained of. Carnation also told Moroney that he thought Moroney was contributing to the problems by failing to take action.
As a direct consequence of making these complaints, Carnation testified that he was subjected to retaliation, such as being assigned unassisted duty in dangerous neighborhoods in unpleasant weather conditions. In another instance, Carnation testified that Colarulo told him that if Carnation filed an EEOC complaint, Colarulo would make Carnation's life "a living nightmare," and ordered Carnation to apologize for making his previous accusations.
In May of 1997, Carnation attempted to call Moroney at the district, in order to speak with him. Carnation received a telephone call back from Colarulo, who ordered Carnation to "not call Sgt. Moroney." The next Saturday, however, Carnation called Moroney and spoke with him about his concerns surrounding the racial issues in the squad. The next day, Carnation called Colarulo, who was off duty and on vacation for the Memorial Day holiday, and told Colarulo that he had spoken to Moroney and resolved many of his concerns, but still wanted to schedule a meeting between all three of them. Colarulo refused to schedule a meeting.
After the Memorial Day holiday, Colarulo served Carnation with disciplinary papers relating to the phone calls that had been placed over the weekend, and brought charges of insubordination, using profane or insulting language to a superior officer, and neglect of duty for failing to comply with oral orders of a superior, against Carnation.
As per Philadelphia Police Department procedures, the charges were then sent to an internal disciplinary board called the "Police Board of Inquiry" or "PBI." The PBI is a three-member panel of police officers, which listens to the evidence before it and then decides what proper sanction, if any, that it will recommend to the Police Commissioner, who holds the power to impose any recommended sanctions.
Carnation pled "not guilty" to the charges against him, and a hearing was held before the PBI, at which Carnation was represented by private counsel, and testified on his own behalf, as did Colarulo. The PBI found Carnation guilty of all three counts brought by Colarulo and, on its own initiative, added a fourth charge of conduct unbecoming an officer. The PBI then recommended Carnation's termination to the Police Commission, who approved the same.
Carnation subsequently filed suit against the City of Philadelphia, alleging unlawful retaliatory termination in violation of Title VII. The jury found that Carnation's termination constituted illegal retaliation that stemmed from his protected activity of complaining about racial discrimination to Colarulo and Moroney during the Memorial Day weekend, and awarded Carnation $2,000,000.00 in compensatory damages.
The City appealed from the district court's decision upholding the jury verdict, arguing that the City could not be held liable for any retaliatory animus held by Colarulo against Carnation, as a matter of law, because Carnation's termination was not carried out by Colarulo. Rather, Carnation's termination was carried out by a separate, internal disciplinary board that made its recommendation to dismiss Carnation only after receiving testimony and evidence in an unbiased, neutral due-process hearing.
The Court of Appeals disagreed and affirmed the jury's verdict against the City. The Court rejected the City's arguments that the use of the PBI insulated the City and Colarulo from liability as a matter of law. Specifically, the Court recognized that in Staub, the Supreme Court held that the test for analyzing whether an employer can be held liable for the discriminatory or retaliatory animus of a non-decisionmaker was not whether the non-decisionmaker exerted "singular influence," over the eventual adverse employment action, but rather whether the non-decisionmaker's animus was the "proximate cause," of the adverse employment action suffered by the employee. The Third Circuit noted that "proximate causation requires only some direct relation between the injury asserted and the injurious conduct alleged and excludes only those links that are too remote, purely contingent, or indirect." The Court held that the record in this case was insufficient to establish that the PBI's role in Carnation's dismissal rose to such a superseding level that it rendered any retaliatory animus harbored by Colarulo remote, purely contingent or indirect. Rather, the Court held that on the evidence presented, the jury was justified in finding that Colarulo's retaliatory animus "bore a direct and substantial relation to Carnation's termination and that the PBI's recommendation was not independent and was foreseeable." This conclusion was further supported by the Staub decision, in which the Supreme Court itself noted that "[a] supervisor's biased report may remain a casual factor if [an] independent investigation takes it into account without determining that the adverse action was, apart from the supervisor's recommendation, entirely justified. . ."
This case illustrates that, following the rule set forth by the Supreme Court in Staub, an employer cannot rely upon the use of an internal disciplinary review process to always insulate it from liability for discrimination or retaliation under Title VII, even when the individuals who participate in the review process have no relation to the employee or to the supervisor who may have recommended disciplinary action.
To read the Third Circuit's full opinion in McKenna v. City of Philadelphia, click here: http://www.ca3.uscourts.gov/opinarch/093567p.pdf
Monday, June 20, 2011
U.S. Supreme Court: Wal-Mart Class Action Too Big; No Commonality
In the closely watched case of Wal-Mart Stores, Inc. v. Dukes, et al., the U.S. Supreme Court on Monday torpedoed what would have been the largest class-action lawsuit in American history against the nation's largest private employer.
In a 5-4 decision, the Court held that the proposed class, which would have consisted of approximately 1.5 million current and former female employees of Wal-Mart, who have alleged the presence of a corporate culture of gender and sex discrimination against women, failed to meet the "commonality" requirement for permissible class certification.
"Commonality" is a prerequisite set forth in the Federal Rules of Civil Procedure, which requires that there exist "questions of law or fact common to the class," before a group may properly be certified as a class. One of the tests by which commonality may be established is by setting forth "significant proof" that an employer "operated under a general policy of discrimination."
In short, the majority held that significant proof of a "general policy of discrimination" on behalf of Wal-Mart was entirely absent in this case. The majority noted that not only was plaintiff's sociological expert unable to provide a definitive opinion on this issue, but also that Wal-Mart's corporate policy is to provide each of its local supervisors with discretion over employment matters - a policy that is, by definition, the opposite of having the type of uniform employment practice that is needed to establish commonality for purposes of class certification.
The majority also held that the plaintiffs had failed to identify and challenge a specific employment practice that was alleged to be discriminatory and which was common to all 1.5 million class members.
The Court's decision to deny certification in this case is significant in that it will have a significant impact upon future discrimination claims against large employers, undoubtedly making it harder for plaintiffs to achieve class-status. Class-actions are, in many instances, the only real vehicles by which discriminatory policies or actions by large or multi-national employers can be successfully challenged. As compared to small, individual claims, class-actions with numerous class members often carry with them the prospect of very large verdicts that can quickly change (or destroy) a corporate image and bottom-line. Additionally, the economics of many discrimination claims (such as wage-and-hour claims) are simply not worth an attorney's time or money prosecuting on behalf of a single employee, as the potential recoverable damages often cannot justify the time and expense necessary to prevail through trial. Unfortunately, if class-actions now become harder to certify and maintain following this case, the sad truth is that many instances of discrimination or employment law violations may simply go unchecked or unchallenged.
You can read the Supreme Court's full opinion in Wal-Mart Stores, Inc. v. Dukes, et al. here: http://www.supremecourt.gov/opinions/10pdf/10-277.pdf
In a 5-4 decision, the Court held that the proposed class, which would have consisted of approximately 1.5 million current and former female employees of Wal-Mart, who have alleged the presence of a corporate culture of gender and sex discrimination against women, failed to meet the "commonality" requirement for permissible class certification.
"Commonality" is a prerequisite set forth in the Federal Rules of Civil Procedure, which requires that there exist "questions of law or fact common to the class," before a group may properly be certified as a class. One of the tests by which commonality may be established is by setting forth "significant proof" that an employer "operated under a general policy of discrimination."
In short, the majority held that significant proof of a "general policy of discrimination" on behalf of Wal-Mart was entirely absent in this case. The majority noted that not only was plaintiff's sociological expert unable to provide a definitive opinion on this issue, but also that Wal-Mart's corporate policy is to provide each of its local supervisors with discretion over employment matters - a policy that is, by definition, the opposite of having the type of uniform employment practice that is needed to establish commonality for purposes of class certification.
The majority also held that the plaintiffs had failed to identify and challenge a specific employment practice that was alleged to be discriminatory and which was common to all 1.5 million class members.
The Court's decision to deny certification in this case is significant in that it will have a significant impact upon future discrimination claims against large employers, undoubtedly making it harder for plaintiffs to achieve class-status. Class-actions are, in many instances, the only real vehicles by which discriminatory policies or actions by large or multi-national employers can be successfully challenged. As compared to small, individual claims, class-actions with numerous class members often carry with them the prospect of very large verdicts that can quickly change (or destroy) a corporate image and bottom-line. Additionally, the economics of many discrimination claims (such as wage-and-hour claims) are simply not worth an attorney's time or money prosecuting on behalf of a single employee, as the potential recoverable damages often cannot justify the time and expense necessary to prevail through trial. Unfortunately, if class-actions now become harder to certify and maintain following this case, the sad truth is that many instances of discrimination or employment law violations may simply go unchecked or unchallenged.
You can read the Supreme Court's full opinion in Wal-Mart Stores, Inc. v. Dukes, et al. here: http://www.supremecourt.gov/opinions/10pdf/10-277.pdf
U.S. Supreme Court: Complaints By Public Employees Under Constitution's "Petition Clause" Only Protected If Related To Matters of Public Concern
In Borough of Duryea v. Guarnieri, the U.S. Supreme Court held that a public employee who makes a complaint to a governmental employer under the "Petition Clause" of the U.S. Constitution is only protected from retaliation where the petition involves a matter of public concern. This decision harmonizes public employee complaints under the First Amendment's "Petition Clause" with prior Supreme Court decisions involving public employee complaints under the First Amendment's "Free Speech" clause.
The First Amendment to the U.S. Constitution protects "the right of the people. . . to petition the Government for a redress of grievances," (called the "Petition Clause") as well as the people's right to "freedom of speech (called the "Speech Clause)." This case concerned the extent to which public employees are protected by the Petition Clause when they make routine complaints to governmental employers.
Guarnieri was a police chief for a local borough in Pennsylvania, who filed a union grievance against the borough, challenging his termination. Following a subsequent arbitration, Guarnieri was ordered to be reinstated by the borough. After his reinstatement, borough council issued 11 written directives to Guarnieri concerning the performance of his duties. Guarnieri then filed a lawsuit against the borough, arguing that his original union grievance was a "petition" that was protected by the First Amendment's Petition Clause, and that the 11 directives that were subsequently issued by borough council were issued illegally in retaliation for Guarnieri's protected activity in filing a petition.
Diverging from the decisions of other Circuits, the Third Circuit Court of Appeals agreed, and held that Guarnieri's petition (in the form of his union grievance), was protected under the Petition Clause, even if the content of that petition did not address a matter of public concern.
The U.S. Supreme Court disagreed, and reversed the decision of the Third Circuit. In a 7-2 decision, with Justice Thomas filing a concurring opinion and Justice Scalia filing an opinion concurring in part and dissenting in part, the Court held that in order to find protection for complaints to governmental employers filed under the Petition Clause, public employees must be petitioning about a matter of public concern. The majority opinion noted that public employees who complain to their governmental employers enjoy protection from retaliation under the First Amendment's Speech Clause only where their complaints involve "matters of public concern," as opposed to matters of "purely private concern." Given this premise, the majority found no distinguishing reason to treat a public employee's "petition" to a government employer under one section of the First Amendment differently from a public employee's "speech" under a different section of the First Amendment.
Therefore, the Court's majority laid down the following rule: "If a public employee petitions as an employee on a matter of purely private concern, the employee's First Amendment interest must give way, as it does in speech cases. When a public employee petitions as a citizen on a matter of public concern, the employee's First Amendment interest must be balanced against the countervailing interest of the government in the effective and efficient management of its internal affairs. If that balance favors the public employee, the employee's First Amendment claim will be sustained. If the interference with the government's operations is such that the balance favors the employer, the employee's First Amendment claim will fail even though the petition is on a matter of public concern."
You can read the Supreme Court's full decision in Borough of Duryea v. Guarnieri here: http://www.supremecourt.gov/opinions/10pdf/09-1476.pdf
The First Amendment to the U.S. Constitution protects "the right of the people. . . to petition the Government for a redress of grievances," (called the "Petition Clause") as well as the people's right to "freedom of speech (called the "Speech Clause)." This case concerned the extent to which public employees are protected by the Petition Clause when they make routine complaints to governmental employers.
Guarnieri was a police chief for a local borough in Pennsylvania, who filed a union grievance against the borough, challenging his termination. Following a subsequent arbitration, Guarnieri was ordered to be reinstated by the borough. After his reinstatement, borough council issued 11 written directives to Guarnieri concerning the performance of his duties. Guarnieri then filed a lawsuit against the borough, arguing that his original union grievance was a "petition" that was protected by the First Amendment's Petition Clause, and that the 11 directives that were subsequently issued by borough council were issued illegally in retaliation for Guarnieri's protected activity in filing a petition.
Diverging from the decisions of other Circuits, the Third Circuit Court of Appeals agreed, and held that Guarnieri's petition (in the form of his union grievance), was protected under the Petition Clause, even if the content of that petition did not address a matter of public concern.
The U.S. Supreme Court disagreed, and reversed the decision of the Third Circuit. In a 7-2 decision, with Justice Thomas filing a concurring opinion and Justice Scalia filing an opinion concurring in part and dissenting in part, the Court held that in order to find protection for complaints to governmental employers filed under the Petition Clause, public employees must be petitioning about a matter of public concern. The majority opinion noted that public employees who complain to their governmental employers enjoy protection from retaliation under the First Amendment's Speech Clause only where their complaints involve "matters of public concern," as opposed to matters of "purely private concern." Given this premise, the majority found no distinguishing reason to treat a public employee's "petition" to a government employer under one section of the First Amendment differently from a public employee's "speech" under a different section of the First Amendment.
Therefore, the Court's majority laid down the following rule: "If a public employee petitions as an employee on a matter of purely private concern, the employee's First Amendment interest must give way, as it does in speech cases. When a public employee petitions as a citizen on a matter of public concern, the employee's First Amendment interest must be balanced against the countervailing interest of the government in the effective and efficient management of its internal affairs. If that balance favors the public employee, the employee's First Amendment claim will be sustained. If the interference with the government's operations is such that the balance favors the employer, the employee's First Amendment claim will fail even though the petition is on a matter of public concern."
You can read the Supreme Court's full decision in Borough of Duryea v. Guarnieri here: http://www.supremecourt.gov/opinions/10pdf/09-1476.pdf
Wednesday, June 15, 2011
U.S. Supreme Court: States May Revoke Business Licenses of Employers Who Knowingly Hire Illegal Aliens
In the recent decision of Chamber of Commerce v. Whiting (5/26/2011) the U.S. Supreme Court upheld an Arizona law that: (1) allows the state to revoke the business licenses of private employers who knowingly or intentionally employ unauthorized aliens; and (2) requires all private employers to use the federal "E-Verify" system to confirm the immigration status of their employees. Following this decision, any other state in the nation may, if it chooses, adopt an employer-licensing law that provides for the same requirements and penalties as the Arizona statute.
The "Legal Arizona Workers Act of 2007" allows Arizona courts to suspend or revoke any necessary business licenses of private employers within Arizona if an employer knowingly or intentionally employs an unauthorized alien. The Act also requires that every private employer, after hiring a new employee, "shall verify the employment eligibility of the employee," using "E-Verify," which is federal internet database maintained by the federal government that allows an employer to receive basic information relating to an employee's work-authorization status. Use of the E-Verify system under federal level is strictly voluntary, as the Secretary of Homeland Security is expressly prohibited from requiring any person or entity outside of the federal government from participating in the E-Verify program.
The U.S. Chamber of Commerce and various other business groups sued various Arizona public officials charged with administering the Legal Arizona Workers Act of 2007, arguing that the law's provisions were both expressly and impliedly preempted by federal immigration law. After examining the statutory text and operations of both the federal immigration law and the Legal Arizona Workers Act, a 5-3 majority of the Court determined that nothing in the federal immigration law prevented Arizona from adopting, implementing and enforcing the Legal Workers Act as it had.
Going forward, the majority's sanction of the provisions of the Legal Arizona Workers Act opens the door for any other state that wishes to adopt the same manner of enforcement scheme, to pass their own statutes that are identical to Arizona's, without concern over whether it is constitutionally permissible to do so. Whether any states will choose to follow suit and create the same type of license-revocation sanction as exists under Arizona law for an employer's knowing and intentional employment of unauthorized aliens, remains to be seen.
You can read the Court's full opinion in Chamber of Commerce v. Whiting here: http://www.supremecourt.gov/opinions/10pdf/09-115.pdf
The "Legal Arizona Workers Act of 2007" allows Arizona courts to suspend or revoke any necessary business licenses of private employers within Arizona if an employer knowingly or intentionally employs an unauthorized alien. The Act also requires that every private employer, after hiring a new employee, "shall verify the employment eligibility of the employee," using "E-Verify," which is federal internet database maintained by the federal government that allows an employer to receive basic information relating to an employee's work-authorization status. Use of the E-Verify system under federal level is strictly voluntary, as the Secretary of Homeland Security is expressly prohibited from requiring any person or entity outside of the federal government from participating in the E-Verify program.
The U.S. Chamber of Commerce and various other business groups sued various Arizona public officials charged with administering the Legal Arizona Workers Act of 2007, arguing that the law's provisions were both expressly and impliedly preempted by federal immigration law. After examining the statutory text and operations of both the federal immigration law and the Legal Arizona Workers Act, a 5-3 majority of the Court determined that nothing in the federal immigration law prevented Arizona from adopting, implementing and enforcing the Legal Workers Act as it had.
Going forward, the majority's sanction of the provisions of the Legal Arizona Workers Act opens the door for any other state that wishes to adopt the same manner of enforcement scheme, to pass their own statutes that are identical to Arizona's, without concern over whether it is constitutionally permissible to do so. Whether any states will choose to follow suit and create the same type of license-revocation sanction as exists under Arizona law for an employer's knowing and intentional employment of unauthorized aliens, remains to be seen.
You can read the Court's full opinion in Chamber of Commerce v. Whiting here: http://www.supremecourt.gov/opinions/10pdf/09-115.pdf
Thursday, March 24, 2011
U.S. Supreme Court: Oral Complaints Are Sufficient To Invoke Anti-Retaliation Provisions of the Fair Labor Standards Act
In Kasten v. Saint-Gobain Performance Plastics Corp., 09-834 (3/22/2011),the U.S. Supreme Court held that the anti-retaliation provision of the Fair Labor Standards Act (FLSA) protect employees who make oral complaints to an employer, when "a reasonable, objective person would have understood the employee to have put the employer on notice that the employee is asserting," his or her rights under the FLSA. This decision settles a disagreement that had existed among the Circuit Courts of Appeals as to whether oral complaints were sufficient, or whether the FLSA required an employee to file a written complaint before he/she could be protected from retaliation.
By way of background, the FLSA generally provides that employers that fall within its scope must pay non-exempt employees overtime pay at a rate of one-and-one-half the employee's regular rate of pay, for all hours that an employee works in excess of 40 in any week. Section 215(a)(3) of the Fair Labor Standards Act makes it illegal for an employer: "to discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee." 29 U.S.C. 215(a)(3). As mentioned above, the Courts of Appeals have been in disagreement as whether the phrase "filed any complaint," requires a formal written complaint, or encompasses informal oral complaints as well.
In this case, the employee, Kasten, had made various oral complaints to his employer about the physical location of time-clocks in his place of employment, which were located between the area where Kasten and his other co-workers would put on and take off their work-related protective gear, and the area where they performed their job duties. Kasten believed that this placement prevented the workers from receiving credit for time that they spent "donning and doffing" their required protective gear, which is a violation of the FLSA. Kasten claimed to have made repeated oral complaints about the time-clock location to his employer in accordance with the employer's internal grievance procedure, and orally complained to his shift supervisor that "it was illegal for the time clocks to be where they were," because of the employer's exclusion of "the time you come in and start doing stuff." Kasten also complained to a member of the HR department that if the location of the time clocks "were to get challenged," in court, the employer "would lose." He also told his lead operator that the location was illegal and that he "was thinking about starting a lawsuit about the placement of the time clocks."
Kasten alleged that these complaints led his employer to discipline, and ultimately, terminate him.
The lower courts had dismissed Kasten's claims of retaliation, holding that the FLSA did not protect "oral" complaints, but required an employee to file written complaints to an employer before he/she could take advantage of the FLSA's anti-retaliation provision.
The U.S. Supreme Court disagreed, and held that the FLSA's anti-retaliation provision protects both oral and written complaints. Finding that the text of the FLSA itself did not provide a conclusive answer to this issue, the Court's majority looked to the purpose and history of the FLSA, and concluded that limiting complaints by employees to only formal written complaints, would undermine the legislative purpose and intent of the Act, which was originally meant to protect illiterate and uneducated manufacturing laborers. The majority also noted that restricting complaints to only those in writing would prevent the Government agencies from using hotlines, interviews and other methods of receiving complaints from employees.
However, the Court did not go so far as to offer protection to all oral complaints, recognizing that the FLSA does require fair notice of alleged violations to be given to employers. Therefore, the majority held that while "fair notice" does not necessarily have to be in writing, an oral complaint will only be deemed to be "filed" under the anti-retaliation provision of the FLSA when "a reasonable, objective person would have understood the employee to have put the employer on notice that the employee is asserting," his or her rights under the FLSA. Under the facts of this case, the majority determined that Kasten's oral complaints to his employer and supervisors met this objective test, and thus allowed Kasten's suit to proceed.
You can read both the majority and dissenting opinions in Kasten v. Saint-Gobain Performance Plastics Corp., here: http://www.supremecourt.gov/opinions/10pdf/09-834.pdf
By way of background, the FLSA generally provides that employers that fall within its scope must pay non-exempt employees overtime pay at a rate of one-and-one-half the employee's regular rate of pay, for all hours that an employee works in excess of 40 in any week. Section 215(a)(3) of the Fair Labor Standards Act makes it illegal for an employer: "to discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee." 29 U.S.C. 215(a)(3). As mentioned above, the Courts of Appeals have been in disagreement as whether the phrase "filed any complaint," requires a formal written complaint, or encompasses informal oral complaints as well.
In this case, the employee, Kasten, had made various oral complaints to his employer about the physical location of time-clocks in his place of employment, which were located between the area where Kasten and his other co-workers would put on and take off their work-related protective gear, and the area where they performed their job duties. Kasten believed that this placement prevented the workers from receiving credit for time that they spent "donning and doffing" their required protective gear, which is a violation of the FLSA. Kasten claimed to have made repeated oral complaints about the time-clock location to his employer in accordance with the employer's internal grievance procedure, and orally complained to his shift supervisor that "it was illegal for the time clocks to be where they were," because of the employer's exclusion of "the time you come in and start doing stuff." Kasten also complained to a member of the HR department that if the location of the time clocks "were to get challenged," in court, the employer "would lose." He also told his lead operator that the location was illegal and that he "was thinking about starting a lawsuit about the placement of the time clocks."
Kasten alleged that these complaints led his employer to discipline, and ultimately, terminate him.
The lower courts had dismissed Kasten's claims of retaliation, holding that the FLSA did not protect "oral" complaints, but required an employee to file written complaints to an employer before he/she could take advantage of the FLSA's anti-retaliation provision.
The U.S. Supreme Court disagreed, and held that the FLSA's anti-retaliation provision protects both oral and written complaints. Finding that the text of the FLSA itself did not provide a conclusive answer to this issue, the Court's majority looked to the purpose and history of the FLSA, and concluded that limiting complaints by employees to only formal written complaints, would undermine the legislative purpose and intent of the Act, which was originally meant to protect illiterate and uneducated manufacturing laborers. The majority also noted that restricting complaints to only those in writing would prevent the Government agencies from using hotlines, interviews and other methods of receiving complaints from employees.
However, the Court did not go so far as to offer protection to all oral complaints, recognizing that the FLSA does require fair notice of alleged violations to be given to employers. Therefore, the majority held that while "fair notice" does not necessarily have to be in writing, an oral complaint will only be deemed to be "filed" under the anti-retaliation provision of the FLSA when "a reasonable, objective person would have understood the employee to have put the employer on notice that the employee is asserting," his or her rights under the FLSA. Under the facts of this case, the majority determined that Kasten's oral complaints to his employer and supervisors met this objective test, and thus allowed Kasten's suit to proceed.
You can read both the majority and dissenting opinions in Kasten v. Saint-Gobain Performance Plastics Corp., here: http://www.supremecourt.gov/opinions/10pdf/09-834.pdf
Monday, March 7, 2011
Store Manager Is FLSA Exempt, Says Employer. Not So Fast, Says Court.
In Pierce v. Dolgencorp, Inc., the U.S. District Court for the Middle District of Pennsylvania held that a Store Manager's claim that she was owed unpaid overtime wages under the Fair Labor Standards Act (FLSA) could be sent to a jury for determination. In so doing, the Court rejected the employer's arguments that the Store Manager had to be classified as an "executive employee" as a matter of law.
Cindy Pierce was originally hired by Dollar General as a cashier in 1998. In 2001, she was promoted to Store Manager, and continued to work in that capacity until June or July of 2003. As a Store Manager, Pierce was the only salaried employee and the only employee who was classified as "FLSA exempt" by Dollar General.
As a Store Manager, Pierce had at least one Assistant Store Manager (ASM) and one clerk, and managed a store budget of over 200 hours per week. When she was first hired as Store Manager, Pierce earned $355.77 per week. By April, 2002, she was earning $423.08 a week, and understood that her salary was meant to compensate her for however many hours she worked. Pierce's ASM was paid $6.20 per hour. Pierce testified that she usually worked 50 to 60 hours a week, and sometimes as much as 65 hours a week. As Store Manager, Pierce interviewed and hired employees without approval from her District Manager, trained employees, disseminated and enforced corporate policies, evaluated employee performance, disciplined employees, fired and promoted employees, ensured store security and safety, monitored sales, damages, employees and hours, directed employees' work assignments and scheduled employees' hours. Pierce 30%-50% of her time performing paperwork, and it took her 5-6 hours just to complete the employees' work schedules. Pierce was unquestionably the store's leader.
On the other hand, Pierce testified that she spent 4 - 6 hours everyday stocking shelves and on "truck days," (which occurred about twice a week) Pierce and her ASM spent 75% of her time unloading and inventorying the delivery to the store. It would normally take two days to have delivery items unloaded and stocked on store shelves. She also ran the store registers when needed. Pierce had to request permission to take days off from her District Manager, and the store layout was dictated by a "planogram," that was created and disseminated by the District Manager. Pierce testified that she did not have discretion to set up the store as she would have liked. Pierce also spent 5 - 6 hours a week sweeping the floors and doing other non-managerial work. Pierce received excellent reviews in the area of "payroll control," which she attributed to her personally working more hours and not hiring extra employees.
In June of 2003, Pierce resigned from Dollar General because of stress associated with her job. In March of 2004, she made claims against Dollar General for unpaid overtime wages.
Dollar General (a.k.a. Dolgencorp, Inc.), argued that Pierce was not entitled to overtime pay for the period in which she served as Store Manager because she was properly classified as an "executive" employee, which is exempt from the overtime requirements of the FLSA. Dollar General argued that as Store Manager, Pierce's primary duty was management, and that she spent most of her time engaged in management work. Dollar General filed a Motion for Summary Judgment on this point, seeking dismissal of Pierce's claims.
The District Court disagreed, and held that Pierce had presented enough evidence to allow a jury to determine whether she spent most of her time performing managerial or non-managerial work. Specifically, the Court found that: (1) based on her testimony, a jury could determine that Pierce spent 25% - 30% of her time doing paperwork, and the remainder of her time performing manual labor; (2) a jury could conclude that Pierce's non-managerial work, such as unloading trucks, stocking shelves and running the registers, was more valuable to Dollar General than her managerial duties, because it saved Dollar General the expense of having to hire additional employees to perform the same work, evidenced by the fact that Dollar General refused to grant her more employees for her budget; and (3) when the respective hourly rate of pay of Pierce and her ASM is compared, a jury could find that Pierce was actually paid comparatively less than her ASM for an equivalent amount of hours (approximately 96% of her ASM's salary). Therefore, the District Court denied Dollar General's Motion and held that Pierce's claims must be determined by a jury.
The lesson to be learned from this case is clear: job titles are not everything. Just because someone holds a "manager" position does not mean that that individual is automatically exempt from the overtime pay requirements of the FLSA. Indeed, as this case shows, even performing some managerial tasks and duties in the course of employment does not entitle an employer to rely upon an "executive" exemption in every instance. As the District Court noted, the focus in these types of cases will be on the employee's "actual day-to-day activities, as opposed to generic job descriptions or performance evaluations." Things are not always as they seem at first glance.
Cindy Pierce was originally hired by Dollar General as a cashier in 1998. In 2001, she was promoted to Store Manager, and continued to work in that capacity until June or July of 2003. As a Store Manager, Pierce was the only salaried employee and the only employee who was classified as "FLSA exempt" by Dollar General.
As a Store Manager, Pierce had at least one Assistant Store Manager (ASM) and one clerk, and managed a store budget of over 200 hours per week. When she was first hired as Store Manager, Pierce earned $355.77 per week. By April, 2002, she was earning $423.08 a week, and understood that her salary was meant to compensate her for however many hours she worked. Pierce's ASM was paid $6.20 per hour. Pierce testified that she usually worked 50 to 60 hours a week, and sometimes as much as 65 hours a week. As Store Manager, Pierce interviewed and hired employees without approval from her District Manager, trained employees, disseminated and enforced corporate policies, evaluated employee performance, disciplined employees, fired and promoted employees, ensured store security and safety, monitored sales, damages, employees and hours, directed employees' work assignments and scheduled employees' hours. Pierce 30%-50% of her time performing paperwork, and it took her 5-6 hours just to complete the employees' work schedules. Pierce was unquestionably the store's leader.
On the other hand, Pierce testified that she spent 4 - 6 hours everyday stocking shelves and on "truck days," (which occurred about twice a week) Pierce and her ASM spent 75% of her time unloading and inventorying the delivery to the store. It would normally take two days to have delivery items unloaded and stocked on store shelves. She also ran the store registers when needed. Pierce had to request permission to take days off from her District Manager, and the store layout was dictated by a "planogram," that was created and disseminated by the District Manager. Pierce testified that she did not have discretion to set up the store as she would have liked. Pierce also spent 5 - 6 hours a week sweeping the floors and doing other non-managerial work. Pierce received excellent reviews in the area of "payroll control," which she attributed to her personally working more hours and not hiring extra employees.
In June of 2003, Pierce resigned from Dollar General because of stress associated with her job. In March of 2004, she made claims against Dollar General for unpaid overtime wages.
Dollar General (a.k.a. Dolgencorp, Inc.), argued that Pierce was not entitled to overtime pay for the period in which she served as Store Manager because she was properly classified as an "executive" employee, which is exempt from the overtime requirements of the FLSA. Dollar General argued that as Store Manager, Pierce's primary duty was management, and that she spent most of her time engaged in management work. Dollar General filed a Motion for Summary Judgment on this point, seeking dismissal of Pierce's claims.
The District Court disagreed, and held that Pierce had presented enough evidence to allow a jury to determine whether she spent most of her time performing managerial or non-managerial work. Specifically, the Court found that: (1) based on her testimony, a jury could determine that Pierce spent 25% - 30% of her time doing paperwork, and the remainder of her time performing manual labor; (2) a jury could conclude that Pierce's non-managerial work, such as unloading trucks, stocking shelves and running the registers, was more valuable to Dollar General than her managerial duties, because it saved Dollar General the expense of having to hire additional employees to perform the same work, evidenced by the fact that Dollar General refused to grant her more employees for her budget; and (3) when the respective hourly rate of pay of Pierce and her ASM is compared, a jury could find that Pierce was actually paid comparatively less than her ASM for an equivalent amount of hours (approximately 96% of her ASM's salary). Therefore, the District Court denied Dollar General's Motion and held that Pierce's claims must be determined by a jury.
The lesson to be learned from this case is clear: job titles are not everything. Just because someone holds a "manager" position does not mean that that individual is automatically exempt from the overtime pay requirements of the FLSA. Indeed, as this case shows, even performing some managerial tasks and duties in the course of employment does not entitle an employer to rely upon an "executive" exemption in every instance. As the District Court noted, the focus in these types of cases will be on the employee's "actual day-to-day activities, as opposed to generic job descriptions or performance evaluations." Things are not always as they seem at first glance.
Wednesday, March 2, 2011
US Supreme Court Adopts "Cat's-Paw" Theory In Military Discrimination Case
In Staub v. Proctor Hospital, decided on March 1, 2011, the U.S. Supreme Court held, in the context of a case involving an employer's alleged violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), that "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA." The significance of this opinion is two-fold: First, the Court through this opinion has explicitly sanctioned the applicability of "cat's-paw" theories of liability in an employment discrimination context. Second, there is nothing in the language of this decision that would suggest that the Court's analysis in this case is strictly confined to cases arising under USERRA. To the contrary, the Court itself acknowledges in the majority opinion that the operative statutory language of the USERRA, which prohibits an employer from denying employment or the benefits of employment to any person on the basis of that individual's membership in or obligation to a branch of the military, is "very similar to Title VII." As such, employees can now rely on this decision to advance "cat's-paw" theories of liability against employers in the traditional discrimination cases arising under Title VII.
In this case, Vincent Staub worked as a medical technician for Proctor Hospital under 2004 when he was terminated for allegedly violating a "Corrective Action" disciplinary warning that had been placed in his employment file by his supervisors, Janice Mulally and Michael Korenchuk.
While employed at Proctor, Staub was a member of the U.S. Army Reserve, which required him to attend drill one weekend per month and to train full time for two to three weeks per year. At Staub's subsequent employment discrimination trial, the jury determined that both Mulally and Korenchuk were hostile to Staub's military obligations. Specifically, Mulally had scheduled Staub for additional shifts without notice so that he would "pay back the department for everyone else having to bend over backwards to cover his schedule for the Reserves," and Mulally had also informed one of Staub's co-workers that Staubs's "military duty had been a strain on the department," and asked that co-worker to help her "get rid of" Staub. Korenchuk referred to Staub's obligations to the Reserves as "a bunch of smoking and joking and a waste of taxpayers' money," and was aware that Mulally was "out to get" Staub.
In January of 2004, Mulally issued Staub a "Corrective Action" disciplinary warning for purportedly violating a company rule that required him to stay in his work area whenever he was not seeing a patient. This warning required Staub to report to either Mulally or Korenchuk when he had no patients or when his patient testing was completed. Staub contended at trial that the company rule allegedly invoked by Mulally did not exist, and that even if it did, he did not violate it.
On April 2, 2004, one of Staub's co-workers complained to Proctor's vice-president of human resources, Linda Buck, and to Proctor's chief operating officer, Garrett McGowan, about Staub's unavailability and abruptness. McGowan directed Korenchuk and Buck to create a plan that would "solve Staub's availability problems." Before such a plan could be put in place, however, Korenchuk informed Buck that Staub had left his desk without informing a supervisor, in violation of his January Corrective Action notice. Relying upon this accusation (which Staub contended was entirely false), Buck reviewed Staub's personnel file and terminated him. Staub's termination notice stated that Staub had been terminated for violating the directive contained in Mulally's January Corrective Action notice.
Staub challenged his termination through Proctor's internal grievance procedures. Staub contended that his termination was improper because Mulally had fabricated the allegation underpinning the January Corrective Action notice due to her hostility towards his military obligations. Buck did not follow up with Mulally with respect to Staub's allegation, and did not reverse Staub's termination.
Staub then sued Proctor claiming a violation of the USERRA, alleging that his termination was illegal as it was motivated by hostility towards his U.S. Army Reserve obligations. Specifically, Staub argued that although Buck herself (who had actually terminated Staub), held no such hostility, Mulally and Korenchuk clearly did, and that "their actions influenced Buck's ultimate employment decision." Staub's claim proceeded to a jury trial, where the jury found in his favor and awarded him $57,640.00 in damages.
On appeal, the Seventh Circuit Court of Appeals reversed, holding that a "cat's-paw" theory of liability, such as the one that Staub had advanced in this case, could not be maintained unless the non-decisionmaker had exercised "singular influence," over the actual decisionmaker so that the decision to terminate was the "product of blind reliance." The Seventh Circuit held that since the evidence in this case showed that Buck was not "wholly dependent" upon either Mulally's or Korenchuk's advice, Staub had no cause of action under USERRA.
In a unanimous decision with two Justices concurring in the judgment, the Supreme Court reversed. The Court noted recognized that when creating a tort action under federal law, Congress "adopts the background of general tort law," including the concept of "proximate cause." In claims for intentional torts, for example, the Court noted that in order to be found liable, an individual must intend not only "the act itself," but "the consequences of the act." Therefore, adopting these tenets and applying them to the operative language of the USERRA statute, the Court held that: "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA." As such, in order to prevail in such actions, a plaintiff cannot hold an employer liable simply by showing that the ultimate decisionmaker relied upon information that was (unbeknownst to the decisionmaker) prompted by discrimination. Rather, the plaintiff must prove that the originator of that discriminatory information created the information with the intent that such information would cause the plaintiff to suffer an adverse employment action.
The Court rejected Proctor's suggestion that the Court adopt a rule that a decisionmaker's independent investigation and rejection of an employee's allegations of discriminatory animus can insulate an employer from liability, as such an action would negate the effects of any prior discrimination. The Court held that "we are aware of no principle in tort or agency law under which an employer's mere conduct of an independent investigation has a claim-preclusive effect. Nor do we think the independent investigation somehow relieves the employer of 'fault.' The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision." The Court also rejected Justice Alito's suggestion that an employer should be held liable only when it "should be regarded as having delegated part of the decisionmaking power to the biased supervisor."
While it reversed the decision of the Seventh Circuit, the Court explicitly left two questions unanswered: First, the Court expressed no opinion as to whether an employer could be held liable under such a "cat's-paw" theory of liability if a co-worker, rather than a supervisor, committed a discriminatory action that influenced a subsequent adverse employment action. Second, the Court acknowledged that in this case, Staub took advantage of Proctor's internal grievance procedures after having been terminated, but refused to comment on whether Proctor would enjoy an affirmative defense to liability had Staub not done so. Therefore, one is likely to see these issues being litigated in the lower courts in the future.
You can read the Supreme Court's full opinion in Staub v. Proctor here: http://www.supremecourt.gov/opinions/10pdf/09-400.pdf
In this case, Vincent Staub worked as a medical technician for Proctor Hospital under 2004 when he was terminated for allegedly violating a "Corrective Action" disciplinary warning that had been placed in his employment file by his supervisors, Janice Mulally and Michael Korenchuk.
While employed at Proctor, Staub was a member of the U.S. Army Reserve, which required him to attend drill one weekend per month and to train full time for two to three weeks per year. At Staub's subsequent employment discrimination trial, the jury determined that both Mulally and Korenchuk were hostile to Staub's military obligations. Specifically, Mulally had scheduled Staub for additional shifts without notice so that he would "pay back the department for everyone else having to bend over backwards to cover his schedule for the Reserves," and Mulally had also informed one of Staub's co-workers that Staubs's "military duty had been a strain on the department," and asked that co-worker to help her "get rid of" Staub. Korenchuk referred to Staub's obligations to the Reserves as "a bunch of smoking and joking and a waste of taxpayers' money," and was aware that Mulally was "out to get" Staub.
In January of 2004, Mulally issued Staub a "Corrective Action" disciplinary warning for purportedly violating a company rule that required him to stay in his work area whenever he was not seeing a patient. This warning required Staub to report to either Mulally or Korenchuk when he had no patients or when his patient testing was completed. Staub contended at trial that the company rule allegedly invoked by Mulally did not exist, and that even if it did, he did not violate it.
On April 2, 2004, one of Staub's co-workers complained to Proctor's vice-president of human resources, Linda Buck, and to Proctor's chief operating officer, Garrett McGowan, about Staub's unavailability and abruptness. McGowan directed Korenchuk and Buck to create a plan that would "solve Staub's availability problems." Before such a plan could be put in place, however, Korenchuk informed Buck that Staub had left his desk without informing a supervisor, in violation of his January Corrective Action notice. Relying upon this accusation (which Staub contended was entirely false), Buck reviewed Staub's personnel file and terminated him. Staub's termination notice stated that Staub had been terminated for violating the directive contained in Mulally's January Corrective Action notice.
Staub challenged his termination through Proctor's internal grievance procedures. Staub contended that his termination was improper because Mulally had fabricated the allegation underpinning the January Corrective Action notice due to her hostility towards his military obligations. Buck did not follow up with Mulally with respect to Staub's allegation, and did not reverse Staub's termination.
Staub then sued Proctor claiming a violation of the USERRA, alleging that his termination was illegal as it was motivated by hostility towards his U.S. Army Reserve obligations. Specifically, Staub argued that although Buck herself (who had actually terminated Staub), held no such hostility, Mulally and Korenchuk clearly did, and that "their actions influenced Buck's ultimate employment decision." Staub's claim proceeded to a jury trial, where the jury found in his favor and awarded him $57,640.00 in damages.
On appeal, the Seventh Circuit Court of Appeals reversed, holding that a "cat's-paw" theory of liability, such as the one that Staub had advanced in this case, could not be maintained unless the non-decisionmaker had exercised "singular influence," over the actual decisionmaker so that the decision to terminate was the "product of blind reliance." The Seventh Circuit held that since the evidence in this case showed that Buck was not "wholly dependent" upon either Mulally's or Korenchuk's advice, Staub had no cause of action under USERRA.
In a unanimous decision with two Justices concurring in the judgment, the Supreme Court reversed. The Court noted recognized that when creating a tort action under federal law, Congress "adopts the background of general tort law," including the concept of "proximate cause." In claims for intentional torts, for example, the Court noted that in order to be found liable, an individual must intend not only "the act itself," but "the consequences of the act." Therefore, adopting these tenets and applying them to the operative language of the USERRA statute, the Court held that: "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA." As such, in order to prevail in such actions, a plaintiff cannot hold an employer liable simply by showing that the ultimate decisionmaker relied upon information that was (unbeknownst to the decisionmaker) prompted by discrimination. Rather, the plaintiff must prove that the originator of that discriminatory information created the information with the intent that such information would cause the plaintiff to suffer an adverse employment action.
The Court rejected Proctor's suggestion that the Court adopt a rule that a decisionmaker's independent investigation and rejection of an employee's allegations of discriminatory animus can insulate an employer from liability, as such an action would negate the effects of any prior discrimination. The Court held that "we are aware of no principle in tort or agency law under which an employer's mere conduct of an independent investigation has a claim-preclusive effect. Nor do we think the independent investigation somehow relieves the employer of 'fault.' The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision." The Court also rejected Justice Alito's suggestion that an employer should be held liable only when it "should be regarded as having delegated part of the decisionmaking power to the biased supervisor."
While it reversed the decision of the Seventh Circuit, the Court explicitly left two questions unanswered: First, the Court expressed no opinion as to whether an employer could be held liable under such a "cat's-paw" theory of liability if a co-worker, rather than a supervisor, committed a discriminatory action that influenced a subsequent adverse employment action. Second, the Court acknowledged that in this case, Staub took advantage of Proctor's internal grievance procedures after having been terminated, but refused to comment on whether Proctor would enjoy an affirmative defense to liability had Staub not done so. Therefore, one is likely to see these issues being litigated in the lower courts in the future.
You can read the Supreme Court's full opinion in Staub v. Proctor here: http://www.supremecourt.gov/opinions/10pdf/09-400.pdf
Friday, February 18, 2011
Proposed House Bill Would Prohibit Disclosure of Prior Criminal Convictions on Employment Applications in Pennsylvania
House Bill 747, which was introduced in the Pennsylvania General Assembly on February 17, 2011, would amend the Pennsylvania Human Relations Act (Pennsylvania's Title VII / ADA / ADEA equivalent), to prohibit employers with more than four employees in Pennsylvania to require job applicants to disclose criminal histories on employment applications, unless the job being applied for has predetermined security regulations established by the Federal or State Governments.
Pennsylvania law already limits the manner in which an employer may use a job applicant's criminal history record. In deciding on whether or not to hire a job applicant, an employer may only consider the applicant's prior felony or misdemeanor convictions to the extent that those convictions "relate to the applicant's suitability for employment in the position for which he has applied," and must notify a job applicant in writing if the decision not to hire the applicant was based "in whole or in part on criminal history record information."
Pennsylvania law already limits the manner in which an employer may use a job applicant's criminal history record. In deciding on whether or not to hire a job applicant, an employer may only consider the applicant's prior felony or misdemeanor convictions to the extent that those convictions "relate to the applicant's suitability for employment in the position for which he has applied," and must notify a job applicant in writing if the decision not to hire the applicant was based "in whole or in part on criminal history record information."
Tuesday, February 15, 2011
Anti-Discrimination Ordinance Adopted In Haverford Township
At its February 14, 2011 Board of Commissioners' meeting, Haverford Township in Delaware County, PA, adopted a new anti-discrimination ordinance, which provides broader protections against employment and other types of discrimination than the current federal and state anti-discrimination laws.
Like Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act and the Pennsylvania Human Relations Act, the new Haverford Ordinance prohibits employment discrimination within the Township on the traditional bases of race, color, religion, ancestry, age, sex, national origin, handicap or disability and the use of a support animal.
Unlike its federal and state counterparts, however, the new Haverford Township Ordinance also prohibits discrimination on the basis of sexual orientation, gender identity and gender expression. The term "gender identity" is defined as "the gender(s), or lack thereof, a person self-identifies as, whether or not based on biological fact or sexual orientation." The term "gender expression," refers to "the manner in which a person's identity is communicated or perceived by others, through appearance, behavior, or physical characteristics that may be in accord with, or opposed to, one's physical anatomy, chromosomal sex, or sex at birth, and shall include, but is not limited to, persons who are undergoing or have completed sex change."
The prohibitions on employment discrimination under the new Ordinance encompass all those employer actions that are currently prohibited by the Pennsylvania Human Relations Act (which, in turn, takes most of its prohibited practices from the federal case law that has developed under Title VII), against any of the protected classes listed above.
The Haverford Township Anti-Discrimination Ordinance applies to every employer that has four or more employees within the Township.
This Ordinance also establishes an 11-member Human Relations Commission for Haverford Township, which is charged with enforcing the provisions of the Ordinance. The Commission has the authority to order affirmative action by an employer to correct or compensate for employment discrimination, such as ordering back pay, the hiring, promotion or reinstatement of an aggrieved employee, and the making of reasonable accommodations. The Commission may also assess a civil penalty against any employer who violates this Ordinance up to a maximum amount of $5,000.00, along with an award of attorneys' fees to a successful employee. Attorneys fees for an employer who prevails in any complaint made against it under this Ordinance may also seek attorneys fees, but only if it can prove that the complaint was brought in bad faith. Any order of the Human Relations Commission is appealable to the Court of Common Pleas of Delaware County.
If you are an employer in Haverford Township with four or more employees, or if you work for an employer in Haverford Township with four or more employees, and want to discuss your rights or obligations under this new Ordinance, please call the law office of Eckell, Sparks, Levy, Auerbach, Monte, Sloane, Matthews & Auslander, P.C., at 484-842-0363 or 610-565-3700, to speak with Michael Davey, Esq..
Like Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act and the Pennsylvania Human Relations Act, the new Haverford Ordinance prohibits employment discrimination within the Township on the traditional bases of race, color, religion, ancestry, age, sex, national origin, handicap or disability and the use of a support animal.
Unlike its federal and state counterparts, however, the new Haverford Township Ordinance also prohibits discrimination on the basis of sexual orientation, gender identity and gender expression. The term "gender identity" is defined as "the gender(s), or lack thereof, a person self-identifies as, whether or not based on biological fact or sexual orientation." The term "gender expression," refers to "the manner in which a person's identity is communicated or perceived by others, through appearance, behavior, or physical characteristics that may be in accord with, or opposed to, one's physical anatomy, chromosomal sex, or sex at birth, and shall include, but is not limited to, persons who are undergoing or have completed sex change."
The prohibitions on employment discrimination under the new Ordinance encompass all those employer actions that are currently prohibited by the Pennsylvania Human Relations Act (which, in turn, takes most of its prohibited practices from the federal case law that has developed under Title VII), against any of the protected classes listed above.
The Haverford Township Anti-Discrimination Ordinance applies to every employer that has four or more employees within the Township.
This Ordinance also establishes an 11-member Human Relations Commission for Haverford Township, which is charged with enforcing the provisions of the Ordinance. The Commission has the authority to order affirmative action by an employer to correct or compensate for employment discrimination, such as ordering back pay, the hiring, promotion or reinstatement of an aggrieved employee, and the making of reasonable accommodations. The Commission may also assess a civil penalty against any employer who violates this Ordinance up to a maximum amount of $5,000.00, along with an award of attorneys' fees to a successful employee. Attorneys fees for an employer who prevails in any complaint made against it under this Ordinance may also seek attorneys fees, but only if it can prove that the complaint was brought in bad faith. Any order of the Human Relations Commission is appealable to the Court of Common Pleas of Delaware County.
If you are an employer in Haverford Township with four or more employees, or if you work for an employer in Haverford Township with four or more employees, and want to discuss your rights or obligations under this new Ordinance, please call the law office of Eckell, Sparks, Levy, Auerbach, Monte, Sloane, Matthews & Auslander, P.C., at 484-842-0363 or 610-565-3700, to speak with Michael Davey, Esq..
Friday, February 11, 2011
Michael Davey Interviewed By "Easy Small Business HR" - Podcast Now Available For Download!
I recently had the pleasure of being interviewed by Dianne Austin, who runs a great informational website called "Easy Small Business HR," which is focused on employment and HR issues that confront small businesses. Our interview covered topics such as the top 3 employment law issues that employers need to be mindful of, the most common complaints that employees level against their employers and actions that get employers into trouble. I had a great time giving the interview and answering Dianne's questions, and I hope everyone gets a chance to listen to the podcast and receive some valuable and helpful information.
You can download the interview directly from Dianne's website at http://easysmallbusinesshr.com/2011/02/esbhr-podcast-interview-employment-law-advice-michael-davey-esq/ Or, you can find the interview on iTunes by searching for "Easy Small Business HR Podcast," as well as on Easy Small Business HR's Twitter and Facebook pages.
Thanks again Dianne!
You can download the interview directly from Dianne's website at http://easysmallbusinesshr.com/2011/02/esbhr-podcast-interview-employment-law-advice-michael-davey-esq/ Or, you can find the interview on iTunes by searching for "Easy Small Business HR Podcast," as well as on Easy Small Business HR's Twitter and Facebook pages.
Thanks again Dianne!
Thursday, January 27, 2011
"Marital Status" As A Protected Class Under the PA Human Relations Act? Maybe.
On January 26, 2011, Senate Bill 280 was introduced into the Pennsylvania General Assembly, which would amend the Pennsylvania Human Relations Act (PaHRA) to prohibit discrimination, including employment discrimination, on the basis of an individual's "marital status." The proposed bill defines "marital status" as referring to whether an individual is "single, married, divorced, separated or widowed."
If S.B. 280 is passed, all of the employment practices that the PaHRA currently prohibits with respect to race, color, religious creed, ancestry, age, sex, national origin, handicap or disability, would be extended to reach one's "marital status," as well. This would mean that an employer would be prohibited under the PaHRA from: (1) refusing to hire an individual because of his/her marital status; (2) firing an individual because of his/her marital status; (3) otherwise discriminating against an individual because of his/her marital status; (4) inquiring into an employee's, or prospective employee's, marital status; and (5) asking questions about an individual's marital status on any application for employment, just to name a few.
And, given the fact that the courts in Pennsylvania have traditionally employed identical analyses when interpreting the provisions of Title VII and the PaHRA, one wonders whether this proposed addition would also permit a claim for hostile work environment based upon one's marital status? So, as a "head's up" to any married men (or women) out there who work in an office full of bachelors (or bachelorettes) who are forced to listen to constant stories of wild singles parties, drunken weekend "conquests" and happy-hour strip-club campaigns, keep an eye on this legislative gem - you may actually find yourself being a member of a "protected class" before too long.
You can read the full version of S.B. 280 by going to the PA General Assembly website at by going to the PA General Assembly website at http://www.legis.state.pa.us/index.cfm
If S.B. 280 is passed, all of the employment practices that the PaHRA currently prohibits with respect to race, color, religious creed, ancestry, age, sex, national origin, handicap or disability, would be extended to reach one's "marital status," as well. This would mean that an employer would be prohibited under the PaHRA from: (1) refusing to hire an individual because of his/her marital status; (2) firing an individual because of his/her marital status; (3) otherwise discriminating against an individual because of his/her marital status; (4) inquiring into an employee's, or prospective employee's, marital status; and (5) asking questions about an individual's marital status on any application for employment, just to name a few.
And, given the fact that the courts in Pennsylvania have traditionally employed identical analyses when interpreting the provisions of Title VII and the PaHRA, one wonders whether this proposed addition would also permit a claim for hostile work environment based upon one's marital status? So, as a "head's up" to any married men (or women) out there who work in an office full of bachelors (or bachelorettes) who are forced to listen to constant stories of wild singles parties, drunken weekend "conquests" and happy-hour strip-club campaigns, keep an eye on this legislative gem - you may actually find yourself being a member of a "protected class" before too long.
You can read the full version of S.B. 280 by going to the PA General Assembly website at by going to the PA General Assembly website at http://www.legis.state.pa.us/index.cfm
Wednesday, January 26, 2011
Bill To Raise State Minimum Wage Introduced in PA Senate
On January 24, 2011, Senate Bill 235 of 2011 was introduced in the PA State Senate, which calls for an annual cost-of-living increase in the state minimum wage beginning on January 1, 2012 and continuing every January 1 thereafter. The amount of the cost-of-living increase would be calculated by applying the percentage change in the Consumer Price Index for all Urban Consumers in Pennsylvania, New Jersey, Delaware and Maryland, using the most recent 12-month period figures that have been officially submitted to the U.S. Department of Labor, Bureau of Labor Statistics. S.B. 235 also provides that the Secretary of Labor and Industry would be responsible for setting the actual percentage increase and the minimum wage amounts each year.
Pennsylvania's Minimum Wage was last increased in 2009 and is currently $7.25 per hour, equivalent to the Federal Minimum Wage.
S.B. 235 was introduced by State Senator Christine Tartaglione (D-Philadelphia) and other sponsors. You can read the full text S.B. 235 by going to the PA General Assembly website at http://www.legis.state.pa.us/index.cfm
Pennsylvania's Minimum Wage was last increased in 2009 and is currently $7.25 per hour, equivalent to the Federal Minimum Wage.
S.B. 235 was introduced by State Senator Christine Tartaglione (D-Philadelphia) and other sponsors. You can read the full text S.B. 235 by going to the PA General Assembly website at http://www.legis.state.pa.us/index.cfm
Tuesday, January 25, 2011
U.S. Supreme Court - Government Employers May Ask "Reasonable Questions" in Employment Background Investigations
On January 19, 2011, in the case of NASA v. Nelson, et al., the U.S. Supreme Court held that governmental employers are permitted to ask "reasonable questions," during employee background investigation checks without running afoul of employees' constitutional privacy rights.
This case concerned an employee background check process employed by NASA, consisting of two questionnaire forms. The first asked whether an employee had "used, possessed, supplied, or manufactured illegal drugs in the last year," and if so, then required the employee to describe the details of any "treatment or counseling received." Employees were also required to sign a release authorizing the Government to obtain personal information about employees from schools and past employers. The second form then asked open-ended questions about whether NASA had "any reason to question," an employee's "honesty or trustworthiness," or whether an employee had "adverse information," concerning an employee's "violations of the law," "financial integrity," "abuse of alcohol and/or other drugs," "mental or emotional stability," "general behavior or conduct," and "other matters." If an employee checks "yes" to any of those categories, the form required a further written explanation.
Various NASA employees sued, claiming that NASA's subjecting them to this employment background check process violated their constitutional right to "informational privacy." The District Court refused the employees' request for a preliminary injunction, but the Ninth Circuit Court of Appeals reversed, holding that with respect to the first form, NASA's requirement that an employee disclose drug treatment and counseling furthered no legitimate government interest and was thus likely unconstitutional. With respect to the second form, the Ninth Circuit determined that the open-ended questions asked by NASA were not narrowly tailored to meet the government's interests in verifying the employees' identities, and thus, likely violated the employees' constitutional rights.
In granting certiorari, the U.S. Supreme Court had the opportunity, for the second time in two years, to address the available breadth of privacy rights that may, or may not, be held by individuals who are employed in the public sector. One year ago, the Supreme Court had a similar opportunity in City of Ontario v. Quon, 130 S. Ct. 2619 (2010), which concerned whether a SWAT officer had a reasonable expectation of privacy in the content of text messages he had sent over a city-issued pager. In Quon, however, the Supreme Court specifically avoided any issues concerning employee privacy rights under the Fourth Amendment, but instead opted to resolve the case by holding that any search of the officer's text messages conducted by the City was reasonable, and thus, could not be a violation of the Fourth Amendment. For a thorough analysis of this case, see my earlier post entitled "U.S. Supreme Court Side-Steps Questions of Employee Privacy in Electronic Communications," from June 18, 2010..
In Nelson, however, the Supreme Court took the same tack as it did in Quon and once again avoided discussion concerning the thorny issues involving the privacy rights of public employees in the workplace. Instead, the Court stated that "we will assume for present purposes that the Government's challenged inquiries implicate a privacy interest of constitutional significance." That being said, however, the Court then proceeded to overrule the decision of the Ninth Circuit, and held that "whatever the scope of this [privacy] interest, it does not prevent the Government from asking reasonable questions of the sort included on the [NASA forms] in an employment background investigation that is subject to the [federal] Privacy Act's safeguards against public disclosure."
In so holding, the Supreme Court reaffirmed the long-standing tenet that "the Government has a much freer hand in dealing with citizen employees than it does when it brings its sovereign power to bear on citizens at large." The Court also recognized that the types of questions being challenged in this case were "part of a standard employment background check of the sort used by millions of private employers," that "the Government itself has been conducting employment investigations since the earliest days of the Republic," and that "[s]tandard background investigations similar to those at issue here became mandatory for all candidates for the federal civil service in 1953." As such, the Court recognized that the federal government has an interest in performing background checks on its employees and that "[r]easonable investigations of applicants and employees aid the Government in ensuring the security of its facilities and in employing a competent, reliable work-force."
The Court rejected out of hand the employees' claims that the Government's broad authority in regulating and managing its affairs should not apply with as great a force to them, as they were "contract employees," not civil servants. The Court found this argument placed form over substance, holding that "the Government's interest as 'proprietor' in managing its operations . . . does not turn on such formalities," and noting that on the record before it, there was no relevant distinctions between the duties performed by NASA's civil servants and its contract employees.
Against this back-drop, the Court held that the questions asked by NASA on the two employment background check forms were "reasonable, employment-related inquiries that further the Government's interests in managing its internal operations." Specifically, the Court noted that the Government has a "good reason to ask employees about their recent illegal-drug use," namely, to ensure that it will have its "projects staffed by reliable, law-abiding persons who will efficiently and effectively discharge their duties." With this legitimate purpose, the Court determined that the form's follow-up questions concerning any treatment or counseling for illegal-drug use was also a reasonable method by which the Government could separate out those individuals who have taken steps to address and overcome their illegal drug problems, and use this as a mitigating factor in making employment decisions. In the Court's words, this "is a reasonable, and indeed humane, approach. . ."
The Supreme Court also rejected outright the employees' argument that the Government "when it requests job-related personal information in an employment background-check, has a constitutional burden to demonstrate that its questions are necessary or the least restrictive means of furthering its efforts."
The Court also held that the open-ended questions that so troubled the Ninth Circuit Court of Appeals, were in fact "reasonably aimed at identifying capable employees who will faithfully conduct the Government's business," and similar in type and scope to employment background questions frequently used by employers in the private sector.
Lastly, the Court recognized that any privacy interests held by the employees here were further protected by the fact that the NASA forms were governed by the federal Privacy Act, which allows the Government to maintain records about an employee "only to the extent the records are relevant and necessary to accomplish a purpose authorized by law," and requires "written consent before the Government may disclose records pertaining to any individual."
Therefore, in light of the Privacy Act's nondisclosure requirements, coupled with the fact that the questions posed on the two NASA forms "consist of reasonable inquiries in an employment background check," the Court held that NASA's background process did not violate any "constitutional right to informational privacy."
In a notable concurring opinion, Justice Scalia (joined by Justice Thomas), stated that he would have decided the case "on simpler grounds." Specifically, that "[a] federal constitutional right to 'informational privacy' does not exist." This concurrence may be a gloomy portent of how the Supreme Court may examine the issue of public-employee privacy rights in electronic communications when, and if, the Court ever decides to take it up.
You can read the full version of the Court's opinion here: http://www.supremecourt.gov/opinions/10pdf/09-530.pdf
This case concerned an employee background check process employed by NASA, consisting of two questionnaire forms. The first asked whether an employee had "used, possessed, supplied, or manufactured illegal drugs in the last year," and if so, then required the employee to describe the details of any "treatment or counseling received." Employees were also required to sign a release authorizing the Government to obtain personal information about employees from schools and past employers. The second form then asked open-ended questions about whether NASA had "any reason to question," an employee's "honesty or trustworthiness," or whether an employee had "adverse information," concerning an employee's "violations of the law," "financial integrity," "abuse of alcohol and/or other drugs," "mental or emotional stability," "general behavior or conduct," and "other matters." If an employee checks "yes" to any of those categories, the form required a further written explanation.
Various NASA employees sued, claiming that NASA's subjecting them to this employment background check process violated their constitutional right to "informational privacy." The District Court refused the employees' request for a preliminary injunction, but the Ninth Circuit Court of Appeals reversed, holding that with respect to the first form, NASA's requirement that an employee disclose drug treatment and counseling furthered no legitimate government interest and was thus likely unconstitutional. With respect to the second form, the Ninth Circuit determined that the open-ended questions asked by NASA were not narrowly tailored to meet the government's interests in verifying the employees' identities, and thus, likely violated the employees' constitutional rights.
In granting certiorari, the U.S. Supreme Court had the opportunity, for the second time in two years, to address the available breadth of privacy rights that may, or may not, be held by individuals who are employed in the public sector. One year ago, the Supreme Court had a similar opportunity in City of Ontario v. Quon, 130 S. Ct. 2619 (2010), which concerned whether a SWAT officer had a reasonable expectation of privacy in the content of text messages he had sent over a city-issued pager. In Quon, however, the Supreme Court specifically avoided any issues concerning employee privacy rights under the Fourth Amendment, but instead opted to resolve the case by holding that any search of the officer's text messages conducted by the City was reasonable, and thus, could not be a violation of the Fourth Amendment. For a thorough analysis of this case, see my earlier post entitled "U.S. Supreme Court Side-Steps Questions of Employee Privacy in Electronic Communications," from June 18, 2010..
In Nelson, however, the Supreme Court took the same tack as it did in Quon and once again avoided discussion concerning the thorny issues involving the privacy rights of public employees in the workplace. Instead, the Court stated that "we will assume for present purposes that the Government's challenged inquiries implicate a privacy interest of constitutional significance." That being said, however, the Court then proceeded to overrule the decision of the Ninth Circuit, and held that "whatever the scope of this [privacy] interest, it does not prevent the Government from asking reasonable questions of the sort included on the [NASA forms] in an employment background investigation that is subject to the [federal] Privacy Act's safeguards against public disclosure."
In so holding, the Supreme Court reaffirmed the long-standing tenet that "the Government has a much freer hand in dealing with citizen employees than it does when it brings its sovereign power to bear on citizens at large." The Court also recognized that the types of questions being challenged in this case were "part of a standard employment background check of the sort used by millions of private employers," that "the Government itself has been conducting employment investigations since the earliest days of the Republic," and that "[s]tandard background investigations similar to those at issue here became mandatory for all candidates for the federal civil service in 1953." As such, the Court recognized that the federal government has an interest in performing background checks on its employees and that "[r]easonable investigations of applicants and employees aid the Government in ensuring the security of its facilities and in employing a competent, reliable work-force."
The Court rejected out of hand the employees' claims that the Government's broad authority in regulating and managing its affairs should not apply with as great a force to them, as they were "contract employees," not civil servants. The Court found this argument placed form over substance, holding that "the Government's interest as 'proprietor' in managing its operations . . . does not turn on such formalities," and noting that on the record before it, there was no relevant distinctions between the duties performed by NASA's civil servants and its contract employees.
Against this back-drop, the Court held that the questions asked by NASA on the two employment background check forms were "reasonable, employment-related inquiries that further the Government's interests in managing its internal operations." Specifically, the Court noted that the Government has a "good reason to ask employees about their recent illegal-drug use," namely, to ensure that it will have its "projects staffed by reliable, law-abiding persons who will efficiently and effectively discharge their duties." With this legitimate purpose, the Court determined that the form's follow-up questions concerning any treatment or counseling for illegal-drug use was also a reasonable method by which the Government could separate out those individuals who have taken steps to address and overcome their illegal drug problems, and use this as a mitigating factor in making employment decisions. In the Court's words, this "is a reasonable, and indeed humane, approach. . ."
The Supreme Court also rejected outright the employees' argument that the Government "when it requests job-related personal information in an employment background-check, has a constitutional burden to demonstrate that its questions are necessary or the least restrictive means of furthering its efforts."
The Court also held that the open-ended questions that so troubled the Ninth Circuit Court of Appeals, were in fact "reasonably aimed at identifying capable employees who will faithfully conduct the Government's business," and similar in type and scope to employment background questions frequently used by employers in the private sector.
Lastly, the Court recognized that any privacy interests held by the employees here were further protected by the fact that the NASA forms were governed by the federal Privacy Act, which allows the Government to maintain records about an employee "only to the extent the records are relevant and necessary to accomplish a purpose authorized by law," and requires "written consent before the Government may disclose records pertaining to any individual."
Therefore, in light of the Privacy Act's nondisclosure requirements, coupled with the fact that the questions posed on the two NASA forms "consist of reasonable inquiries in an employment background check," the Court held that NASA's background process did not violate any "constitutional right to informational privacy."
In a notable concurring opinion, Justice Scalia (joined by Justice Thomas), stated that he would have decided the case "on simpler grounds." Specifically, that "[a] federal constitutional right to 'informational privacy' does not exist." This concurrence may be a gloomy portent of how the Supreme Court may examine the issue of public-employee privacy rights in electronic communications when, and if, the Court ever decides to take it up.
You can read the full version of the Court's opinion here: http://www.supremecourt.gov/opinions/10pdf/09-530.pdf
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