Was lawyer doing robot work, so FLSA overtime is due?

clockMy view: Robots don’t get overtime pay, but a lawyer alleging he does the work of a robot states a claim for overtime. Just allege you provide services that a machine could have provided, and you get to go to trial. [Opinion: Lola v. Skadden, Arps (2nd Cir 07/23/2015), reversing Lola v. Skadden, Arps (SD NY 09/16/2014).]

David Lola is a lawyer who got hired by a legal staffing company to perform services for the Skadden Arps law firm. Lola did his work in North Carolina – reviewing documents relating to litigation pending in federal court in the Northern District of Ohio. Lola is a licensed lawyer in California, but is not admitted to practice law in either North Carolina or the Northern District of Ohio.

Lola sued both the staffing company and the law firm claiming entitlement to overtime pay. The defendants argued that Lola was exempt from overtime due to his status as a professional employee – “Any employee who is the holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and is actually engaged in the practice thereof,” according to DOL regs.

Lola argued that his work was not the practice of law because it was “mechanical” and “did not involve the use of any legal judgment or discretion.”

The court said it needed to use state law standards in interpreting the federal “practice of law” rule.

And which state? The state where the work was performed (North Carolina). Not the state where the litigation was pending (Ohio), not the state where the law firm and staffing agency had their principal place of business (New York), and not where Lola had his law license (California).

According to a North Carolina ethics opinion, document review is the practice of law. But the 2nd Circuit pointed out thatinherent in the definition of ‘practice of law’ in North Carolina is the exercise of at least a modicum of independent legal judgment.” The court interpreted Lola’s complaint as alleging that he “exercised no legal judgment whatsoever,” and “provided services that a machine could have provided.” That’s enough to survive a motion to dismiss for failure to state a claim.

Obviously the court does not understand machines. Have they not heard of computers that can beat chess champions? Or experiments in which computers replace judges?

Free law school tuition, with a catch

IndianaTechGet a free legal education, with no guarantee that you can take the bar exam.

Indiana Tech Law School started out in 2013. Really close to the bottom of a long-term nationwide slide in the number of folks applying to go to law school. It’s the fifth law school in Indiana. Interesting to see someone enter a market where demand is declining and supply seems to be pretty strong.

Indiana Tech has applied for ABA approval, which is needed so grads can take the bar exam. Approval has been declined. The school is re-applying.

Nobody is saying why ABA approval was denied, and the school says it is working to fix whatever deficiencies the ABA noted.

The school has now announced that every student who is enrolled in the school during 2016 will receive a 100 percent scholarship. Of course they still have to buy books and cover their own living expenses. And take the risk that ABA approval might not be forthcoming.

Free tuition was offered at U Cal Irvine during its first year of operations. As part of the huge and well-financed U Cal system, it seemed clear that ABA approval would be a cinch, and the school got approval on the fastest track available. The jury is still out on Indiana Tech.

“Prisoner of AT$T” T-shirt can be banned

attprisoners3“Common sense sometimes matters in resolving legal disputes,” says the court.

Reversing a decision by the NLRB, the DC Circuit held that a telephone company can forbid employees to wear “Prisoner of AT$T” T-shirts when going into customer homes or were working in public. Southern New England Telephone v. NLRB  (07/10/2015).

During contract negotiations in 2009 Communications Workers in Connecticut wore T-shirts with “Inmate # ____” on the front and “Prisoner of AT$T” on the back. The boss said they could not wear them if they were going into customer homes or were working in public. Many did anyhow, and 183 got suspended.

The NLRB generally allows employees to wear union insignia while working, and keeps employers from firing workers who do so. There’s a “special circumstances” exception: A company may lawfully prohibit its employees from displaying messages on the job that the company reasonably believes may harm its relationship with its customers or its public image.

AT&T explained that it banned only employees who interact with customers or work in public from wearing the T-shirts. AT&T officials testified that the shirts could alarm or confuse customers, could cause customers to believe that AT&T employees were actually convicts, or could harm the company’s public image more generally.

One more NLRB overruling is coming

nlrbMy view:  It’s all about “temps.” The NLRB’s announcement that it wants briefs from the parties and from amici is a tip-off that they will overrule Oakwood Care Center343 NLRB 659 (2004), and return to the rule of M.B. Sturgis331 NLRB 1298 (2000).

In Miller & Anderson, pending at the NLRB, you have three groups of employees and the Sheet Metal Workers Union wants them all to be part of the same bargaining unit. The three groups are those who are: (1) employed by Miller & Anderson, (2) employed by Tradesmen International (a temp staffing organization), and (3) jointly employed by Miller & Anderson and Tradesmen International.

Current Board policy is that for these three groups of employees to be in the same bargaining unit it requires the consent of both employers. Otherwise, they’re in separate units. That’s Oakwood Care Center.

Prior policy was that the groups could be combined even without employers’ consent. That was M.B. Sturgis.

The outcome seems inevitable, given the current makeup of the NLRB, but here are the questions the NLRB wants to be briefed:

  • How, if at all, have the Section 7 rights of employees in alternative work arrangements, including temporary employees, part-time employees, and other contingent workers been affected by the Board’s decision in Oakwood Care Center343 NLRB 659 (2004), overruling M.B. Sturgis331 NLRB 1298 (2000)?
  • Should the Board continue to adhere to the holding of Oakwood Care Center, which disallows inclusion of solely employed employees and jointly employed employees in the same unit absent the consent of the employers?
  • If the Board decides not to adhere to Oakwood Care Center, should the Board return to the holding of Sturgis, which permits bargaining units that include both solely employed employees and jointly employed employees without the consent of the employers? Alternatively, what principles, apart from those set forth in Oakwood and Sturgis, should govern this area?

Public sector unions tremble; Friedrichs is coming

. . . and fair share fees are at risk.

Unions collect dues from their members and “fair share” fees from nonmembers that they represent. Nonmembers say that violates the 1st amendment, but the US Supreme Court said it was OK in Abood v. Detroit Bd. of Ed. (US Supreme Court 1977).

Today the Court announced that it will review Friedrichs v. California Teachers Association.

Friedrichs is a head-on challenge of the 1977 Abood decision which upheld a state statute that allows an “agency shop” or “fair share” arrangement, whereby every employee represented by a union, even though not a union member, must pay to the union, as a condition of employment, a service charge equal in amount to union dues.

The Court has already called Abood “something of an anomaly.” And the Court has laid why Abood stands on thin ice:

  1. Abood relied on Railway Employes v. Hanson, 351 U. S. 225 (1956), but Hanson‘s first amendment analysis was “thin.”
  2. Abood relied on Machinists v. Street, 367 U. S. 740 (1961), but Street was a private sector case.
  3. The Abood Court fundamentally misunderstood Hanson‘s narrow holding.
  4. Abood failed to appreciate the difference between public sector union speech and private sector union speech.
  5. Abood failed to appreciate the conceptual difficulty in public sector cases of distinguishing union expenditures for collective bargaining from those designed for political purposes.
  6. Abood did not anticipate the administrative problems involved in classifying union expenditures as chargeable and non-chargeable
  7. Abood did not anticipate the practical problems that arise from the heavy burden facing objecting nonmembers wishing to challenge the union’s actions.
  8. The Abood Court’s critical “labor peace” analysis rests on the unsupported empirical assumption that exclusive representation in the public sector depends on the right to collect an agency fee from nonmembers.

[For a list of current employment law cases, see US Supreme Court Watch.]

SCOTUS postpones action on public-sector “agency shop” case

Rebecca FriedrichsMy view: If the US Supreme Court agrees to review Friedrichs v. California Teachers Association we should prepare for a sea change in the legality of “agency shop” (aka “fair share”) arrangements in the public sector. As of June 29, 2015 the Supreme Court has not decided, one way or the other, whether it will review this case. Now they’re on recess until October, so let’s wait and see. If the Court does grant certiorari in the fall, that could be the beginning of the end for  Abood v. Detroit Bd. of Ed.

A group of non-union teachers is asking the US Supreme Court to overrule Abood v. Detroit Bd. of Ed. (US Supreme Court 1977) and hold that public-sector “agency shop” arrangements violate the 1st Amendment.

At the Court’s June 25 conference, no action was taken on whether to grant certiorari. So let’s wait for October.

Friedrichs is a head-on challenge of the 1977 Abood decision which upheld a state statute that allows an “agency shop” arrangement, whereby every employee represented by a union, even though not a union member, must pay to the union, as a condition of employment, a service charge equal in amount to union dues.

Five Justices have already made it quite clear that they are ready, willing, and able to overrule Abood. In  Harris v. Quinn (US Supreme Court 06/30/2014) the Court majority wrote out a list of reasons why Abood is now hanging by a thin thread:

  • Abood relied on Railway Employes v. Hanson, 351 U. S. 225 (1956), but Hanson‘s first amendment analysis was “thin.”
  • Abood relied on Machinists v. Street, 367 U. S. 740 (1961), but Street was a private sector case.
  • The Abood Court fundamentally misunderstood Hanson‘s narrow holding.
  • Abood failed to appreciate the difference between public sector union speech and private sector union speech.
  • Abood failed to appreciate the conceptual difficulty in public sector cases of distinguishing union expenditures for collective bargaining from those designed for political purposes.
  • Abood did not anticipate the administrative problems involved in classifying union expenditures as chargeable and non-chargeable
  • Abood did not anticipate the practical problems that arise from the heavy burden facing objecting nonmembers wishing to challenge the union’s actions.
  • The Abood Court’s critical “labor peace” analysis rests on the unsupported empirical assumption that exclusive representation in the public sector depends on the right to collect an agency fee from nonmembers.

[For a list of current employment law cases, see US Supreme Court Watch.]

DNA sample to find “devious defecator” leads to $2,225,000 verdict

ginaGenetic Information Nondiscrimination Act violation 

My view: Jurors don’t like it when they see a clear-cut and undebatable violation of a clearly-written statute, and then the employer tries to justify that in court. Really, what’s there to like?

Atlas Logistics operates warehouses to store stuff that’s sold in grocery stores. Imagine Atlas’s frustration when a mystery employee began habitually defecating in one of its warehouses. What to do? Atlas requested some employees to submit to a cheek swab (no double entendre intended) to get some DNA to compare to the fecal DNA. 

Two employees sued under the Genetic Information Nondiscrimination Act (GINA), which generally prohibits employers from requesting genetic information from employees. The trial judge granted summary judgment [order] for the employees on the issue of liability, leaving it to a jury to assess damages. 

The jury award: $250,000 to one employees, $225,000 to the other, plus $1,750,000 in punitive damages. Total: $2,225,000. 

By the way, all employees who were tested were cleared. The devious defecator is still at large. If spotted, please call Atlas. 

 Read all about it in the Daily Report.  

Union fair share fees in the crosshairs at Supreme Court

Rebecca FriedrichsBeginning of the end for Abood?

My view: If the US Supreme Court agrees to review Friedrichs v. California Teachers Association we should prepare for a sea change in the legality of “agency shop” (aka “fair share”) arrangements in the public sector.

A group of non-union teachers is asking the US Supreme Court to overrule Abood v. Detroit Bd. of Ed. (US Supreme Court 1977) and hold that public-sector “agency shop” arrangements violate the 1st Amendment.

The Court will have a conference on June 25 to decide whether to grant certiorari. If so, briefs will be filed over the summer, and oral arguments will be scheduled for the fall.

Friedrichs is a head-on challenge of the 1977 Abood decision which upheld a state statute that allows an “agency shop” arrangement, whereby every employee represented by a union, even though not a union member, must pay to the union, as a condition of employment, a service charge equal in amount to union dues.

Five Justices have already made it quite clear that they are ready, willing, and able to overrule Abood. In  Harris v. Quinn (US Supreme Court 06/30/2014) the Court majority wrote out a list of reasons why Abood is now hanging by a thin thread:

  • Abood relied on Railway Employes v. Hanson, 351 U. S. 225 (1956), but Hanson‘s first amendment analysis was “thin.”
  • Abood relied on Machinists v. Street, 367 U. S. 740 (1961), but Street was a private sector case.
  • The Abood Court fundamentally misunderstood Hanson‘s narrow holding.
  • Abood failed to appreciate the difference between public sector union speech and private sector union speech.
  • Abood failed to appreciate the conceptual difficulty in public sector cases of distinguishing union expenditures for collective bargaining from those designed for political purposes.
  • Abood did not anticipate the administrative problems involved in classifying union expenditures as chargeable and non-chargeable
  • Abood did not anticipate the practical problems that arise from the heavy burden facing objecting nonmembers wishing to challenge the union’s actions.
  • The Abood Court’s critical “labor peace” analysis rests on the unsupported empirical assumption that exclusive representation in the public sector depends on the right to collect an agency fee from nonmembers.

[For a list of current employment law cases, see US Supreme Court Watch.]

SCOTUS to decide tribal jurisdiction over intern’s sexual molestation claim

choctawMy view: Why not? The store is on tribal lands.

Dollar General operates a store on the Choctaw reservation. John Doe, a 13-year-old tribe member, was working at the store as an unpaid educational intern. Doe sued Dollar General and its store manager in tribal court, claiming that the manager sexually molested him while he was working there.

The store and the manager went to federal district court seeking an injunction against tribal officials, claiming that the tribal court lacks jurisdiction. The district court held that the tribal court had jurisdiction over Dollar General because it had a consensual relationship with the tribe and with Doe. The court also held there was no tribal jurisdiction over the manager because he personally had no consensual relationship with either the tribe or Doe. The 5th Circuit (2-1) affirmed. [5th Circuit opinion] [Denial of en banc rehearing]

The case is all about tribal sovereignty, and the extent to which a tribal court has jurisdiction over a non-Indian. Its significance is well stated by the dissenting judge:

For the first time ever, a federal court of appeals upholds Indian tribal court tort jurisdiction over a non-Indian, based on a consensual relationship, without a finding that jurisdiction is “necessary to protect tribal self-government or to control internal relations.”

The US Supreme Court granted certiorari to review the 5th Circuit’s judgment. Dollar General Corporation v. Mississippi Band of Choctaw Indians (certiorari granted 06/15/2015). The formal question presented is:

Whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers, including as a means of regulating the conduct of nonmembers who enter into consensual relationships with a tribe or its members.

Oral argument will be scheduled for the Fall of 2015.

[For a list of current employment law cases, see US Supreme Court Watch.]

OK to fire employee for off-duty state-licensed medical marijuana use

potIt’s still “unlawful” under federal law.

My view:  So your state makes it legal to use marijuana, and your boss fires you for doing so.  Courts haven’t been eager to help employees in that situation. Here’s a recent example:

Colorado has an unusual statute that generally makes it an unfair and discriminatory labor practice to discharge an employee based on the employee’s “lawful” outside-of-work activities.

Brandon Coats is a quadriplegic and has been confined to a wheelchair since he was a teenager. In 2009, he registered for and obtained a state-issued license to use medical marijuana to treat painful muscle spasms caused by his quadriplegia. Coats consumes medical marijuana at home, after work, and in accordance with his license and Colorado state law.

Coats worked for Dish Network, a company that randomly tests employees for drugs. Coats tested positive for THC, and Dish Network fired him.

Coats argued that his use of medical marijuana was “lawful” under state law, so he couldn’t be fired for using it.

Dish Network argued that marijuana was “unlawful” under federal law, so the state statute did not protect him for being fired.

In Coats v. Dish Network (Colorado 06/15/2015), the Colorado Supreme Court unanimously sided with the employer, saying:

Nothing in the language of the statute limits the term “lawful” to state law. Instead, the term is used in its general, unrestricted sense, indicating that a “lawful” activity is that which complies with applicable “law,” including state and federal law.

In most states this is not an issue because most states don’t have Colorado’s outside-of-work statute. If the boss wants employees to be pot-free, then so be it.