Law school closure

lawschoolThe future is not what it used to be.

Law school applicants are fewer each year. For many schools there are three choices: reduce the number of enrolled students, lower the minimum credentials of enrolled students, or close up operations.

Thomas M. Cooley Law School may have some advantage in that it has multiple campuses. So it makes sense to them to close one campus and have students finish out their law school careers at another campus. Any way you slice it, this is not the happiest news.

Here’s the story directly from Cooley:

Statement of Intent to Close

Western Michigan University Thomas M. Cooley Law School has notified its students that it intends to cease operations at its Ann Arbor campus on December 31, 2014, subject to the approval of teach-out plans submitted to its accrediting agencies, the Higher Learning Commission and American Bar Association – Section of Legal Education and Admission to the Bar.

This action follows implementation of a financial management plan announced July 1, 2014.

Anticipating the possibility of the closure, the Law School told its Ann Arbor students in August of accommodations it would provide them should the campus close. Those include:

  • early registration at other campuses
  • $1,500 cash stipend to help cover costs of attending a different campus
  • $3,500 stipend for a bar review course for graduates
  • specialized advising for registration, financial aid, housing and other issues
  • possible adjustment to available financial aid
  • additional consideration to students with special circumstances.

Starting January 2015, the affected Ann Arbor students may choose to take their classes at any of the Law School’s other campuses, including Lansing or Auburn Hills located about an hour away from Ann Arbor, Grand Rapids located about two hours away, or at its Tampa Bay, Florida campus. Travel to other campuses has historically been common amongst students, with more than 60 percent of Ann Arbor-based graduates over the last three years taking classes at more than one campus. The Law School has always admitted students to the school as a whole and not to a particular campus.

Announcement of the intent to cease operations at Ann Arbor awaited the required formal notice recently given by the school to its accrediting agencies, which must review the arrangement. The school and the accreditors will ensure that the affected students are provided the full range and quality of curriculum, instruction, and student services as all other students receive.

 

The New York Times on same-sex marriage

I rarely whine when a newspaper totally misses the point regarding a legal question. But I have higher expectations for The New York Times, especially when dealing with one of the central legal and political issues of our era. On Monday, this is what we were told [link]:

The Supreme Court’s decision to deny review of all five pending same-sex marriage cases, thereby clearing the way for such marriages in several states, puts it in line with an American public that supports same-sex marriage but says its legality should be left to each individual state to decide.

That statement turns reality on its head.

The Supreme Court’s action results in the legality of same-sex marriage being determined by federal judges, not by the individual states.

 

US Supreme Court opens with 7 employment law cases

sct

October 6 is opening day at the US Supreme Court, and here are the employment law cases we are watching:

Integrity Staffing Solutions, Inc. v. Busk – Whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act. Oral argument  October 8, 2014.

Department of Homeland Security v. MacLean – Whether certain statutory protections codified in the Whistleblower Protection Act, which are inapplicable when an employee makes a disclosure “specifically prohibited by law,” can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information. Oral argument November 4, 2014.

M&G Polymers USA, LLC v. Tackett – Whether, when construing collective bargaining agreements in Labor Management Relations Act (LMRA) cases, courts should presume that silence concerning the duration of retiree health-care benefits means the parties intended those benefits to vest (and therefore continue indefinitely), as the Sixth Circuit holds; or should require a clear statement that health-care benefits are intended to survive the termination of the collective bargaining agreement, as the Third Circuit holds; or should require at least some language in the agreement that can reasonably support an interpretation that health-care benefits should continue indefinitely, as the Second and Seventh Circuits hold. Oral argument November 10, 2014.

Perez v. Mortgage Bankers Assoc – Whether a federal agency [Department of Labor] must engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation. Oral argument December 1, 2014.

Young v. United Parcel Service – Whether, and in what circumstances, the Pregnancy Discrimination Act requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.” Oral argument December 3, 2014.

Mach Mining v. EEOC – Whether and to what extent a court may enforce the Equal Employment Opportunity Commission’s mandatory duty to conciliate discrimination claims before filing suit. Oral argument to be scheduled for January 2015 or later.

EEOC v. Abercrombie & Fitch Stores – Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee. Oral argument to be scheduled for January 2015 or later.

 

SCOTUS takes up dress code vs. hijab case

hijabWhat notice does an employer need?

Samantha Elauf applied to be a model for the Abercrobie retail clothing company. She’s a Muslim and she wore a black hijab to her interview. Abercrombie has a dress code that requires employees to wear clothes consistent with the kinds of clothing that Abercrombie sells in its stores, and that specifically excludes wearing black. After the interview, Abercrombie did not hire Elauf, and the EEOC brought suit.

Heather Cooke interviewed Elauf. Cooke assumed Elauf was a Muslim and “figured that was the religious reason why she wore her head scarf.” However, during the course of the interview, Elauf never informed Cooke that she was Muslim, never brought up the subject of her headscarf, and never indicated that she wore the headscarf for religious reasons and that she felt obliged to do so, and thus would need an accommodation to address the conflict between her religious practice and Abercrombie’s clothing policy. Indeed, the topic of her headscarf never came up one way or the other.

The trial court granted partial summary judgment for the EEOC, and a jury awarded $20,000 in damages. The 10th Circuit reversed, ordering that summary judgment be entered in favor of Abercrombie. EEOC v. Abercrombie & Fitch Stores (10th Cir 10/01/2013). [Track it at SCOTUSblog.com.]

The 10th Circuit ruled that the employer had no duty to accommodate Elauf’s religious practice. “Applicants or employees must initially inform
employers of their religious practices that conflict with a work requirement and
their need for a reasonable accommodation for them.” Elauf did not do so.

The issue presented in the EEOC’s cert petition:

Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.

My view:

  • At first I was surprised the Court granted cert in this case, thinking it was relatively trivial and technical.
  • However, I see a deep philosophical issue that should be important to all of us. It seems that the EEOC wants Abercrombie to assume Elauf was a Muslim, assume Elauf wore the hijab for religious (not personal or cultural) reasons, and assume there would be a conflict between Elauf’s religious practice and Abercrombie’s dress code. Put another way, the EEOC wants Abercrombie to adopt stereotypes and put those stereotypes into practice.
  • The stereotypes: (1) Women who wear hijabs are Muslim. (2) Women who wear hijabs do so for religious reasons, not for cultural or personal reasons.
  • We live in an era in which we are trying to stamp out stereotypes based on religion, sex, and race. Let’s not have the courts enforce stereotypical thinking.

Arbitrators can’t reinstate wrongfully fired COO

arb“Arbitrators exceeded their powers.”

It is a common practice in labor-management arbitrations (where there is a collective bargaining agreement) that if an employee is wrongfully discharged the arbitrator will order reinstatement. But in Cedar Fair, L.P. v. Falfas, (Ohio 09/18/2014) – a case arising out of an individual employment contract – the court held that reinstatement is not an available remedy unless it is explicitly provided for in the contract or by an applicable statute.

Jacob Falfas claimed that he was fired from his job as chief operations officer, but the employer claimed Falfas resigned.

So they took the dispute to arbitration. The arbitration panel decided that Falfas had not resigned but had been terminated for reasons other than cause.

The big question in the case was the appropriate remedy. The arbitration panel concluded that “equitable relief is needed to restore the parties to the positions that they held prior to the breach of the Employment Agreement.” The arbitrators ordered the employer to reinstate Falfas to his prior position.

The Ohio Supreme Court recited the usual rules about deference to arbitration, and then focused on the Ohio arbitration statute’s provision that a court can vacate an arbitration award if “the arbitrators exceed their powers.” (The Federal Arbitration Act has similar language.)

The court found the arbitration panel exceeded its powers. Under prior Ohio court decisions, reinstatement is not an available remedy for breach of an employment contract. The contract in this case contained a liquidated damages clause for termination without cause. Although Falfas argued that another portion of the contract supported the arbitration panel’s decision, the court said that was “completely undermined” by other portions of the contract.

The ultimate holding: “Specific performance is not an available remedy for breach of an employment contract unless it is explicitly provided for in the contract or by an applicable statute and that the arbitration panel in this case exceeded its authority by holding otherwise.”

My view: The court disagreed with the arbitrators’ interpretation of the contract. Yet the parties agreed to have the arbitrators do the contract interpretation. Obviously the court would read the contract differently than the arbitrators did, but that should not be grounds for overturning the award. The court should not review the arbitrators’ decision as if it were a trail court decision – and that’s exactly what happened here.

[Update: Over at ADR Prof Blog Professor Paul Kirgis gently says, "The case is thus an unusual example of a court interfering with an arbitral award because the panel interpreted the agreement contrary to a rule of state law. Does it open the door, at least in Ohio, to arguments that the “exceeding powers” ground for relief from an award could encompass errors of law?"]

 

Contract lawyer gets no FLSA overtime pay

clockHey, he’s a lawyer who’s practicing law.

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, 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. [Opinion: Lola v. Skadden, Arps (SD NY 09/16/2014).]

The defendants argued that Lola was exempt from overtime due to his status as a professional employee.

The overtime provision of the FLSA requires employers to pay employees one and one-half times the regular rate of pay for any hours worked in excess of forty per week, but exempts from this requirement

any employee employed in a bona fide . . . professional capacity.

Department of Labor regulations provide that

(a) The term “employee employed in a bona fide professional capacity” in section 13(a)(1) of the Act also shall mean:

(1) 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.

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.

So sorry, Mr. Lola, you were practicing law, and not entitled to FLSA overtime.

NLRB reinstates free meals for striking BBQ workers

bbqEmployer cut the meals because there was a legal strike.

Gates & Sons Barbeque of Missouri runs six restaurants in the Kansas City, Missouri area, and this case involves the Main Street location. Employees there had been getting the benefit of a free lunch when they were on shift.

In July 2013 seven of the 30 employees participated in a city-wide strike to obtain higher wages. A few days before the strike the store manager told a few of the employees that they would “feel [his] wrath” if they participated in the strike, and threatened them with termination. [If you've read this far, you can see where this is going.]

The week after the strike, the employer allowed the strikers to return to work, but announced that it was discontinuing certain employee benefits, including the free employee meals.

Although a supervisor testified that the free meals were discontinued because of customer complaints, the NLRB’s ALJ found this “not at all credible.”

So it was a pretty easy decision (signed by a unanimous three-Member panel) that the employer violated Section 8(a)(1) of the NLRA by discontinuing the free employee meal benefit because employees ceased worked concertedly and engaged in a protected strike. Therefore, the Board ordered the employer to reinstate the free employee meal benefit and make employees whole for any loss of benefits suffered as a result of the discriminatory discontinuation of the free employee meal benefit.

Gates & Sons Barbeque of Missouri, Inc. (NLRB 09/16/2014).

 

5 Supreme Court employment cases to watch

US Supreme Court opens its next session on October 6, 2014.

Five employment law cases we are watching involve compensability of security screenings, whisleblowing, lifetime health care coverage, pregnancy discrimination, and EEOC’s duty to conciliate discrimination claims.

Pending cases:

  • Integrity Staffing Solutions, Inc. v. Busk – Whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act. Oral argument  October 8, 2014.
  • Department of Homeland Security v. MacLean – Whether certain statutory protections codified in the Whistleblower Protection Act, which are inapplicable when an employee makes a disclosure “specifically prohibited by law,” can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information. Oral argument November 4, 2014.
  • M&G Polymers USA, LLC v. Tackett – Whether, when construing collective bargaining agreements in Labor Management Relations Act (LMRA) cases, courts should presume that silence concerning the duration of retiree health-care benefits means the parties intended those benefits to vest (and therefore continue indefinitely), as the Sixth Circuit holds; or should require a clear statement that health-care benefits are intended to survive the termination of the collective bargaining agreement, as the Third Circuit holds; or should require at least some language in the agreement that can reasonably support an interpretation that health-care benefits should continue indefinitely, as the Second and Seventh Circuits hold. Oral argument November 10, 2014.
  • Young v. United Parcel Service – Whether, and in what circumstances, the Pregnancy Discrimination Act requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.” Oral argument December 3, 2014.
  • Mach Mining v. EEOC – Whether and to what extent a court may enforce the Equal Employment Opportunity Commission’s mandatory duty to conciliate discrimination claims before filing suit. Oral argument to be scheduled for January 2015 or later.

[Keep up with current SCOTUS employment law cases at US Supreme Court Watch.]

SCOTUS to decide pregnancy case

Certiorari granted in Young v. United Parcel Service.

Peggy Young was a pregnant UPS employee whose doctor advised that she be restricted as to how much weight she could lift. Her job required lifting, so UPS refused to allow her to work. Also, UPS refused to allow her to do light duty work. Young sued UPS, and lost.

UPS provides light duty work to employees who have on-the-job-injuries or are entitled to accommodation under the ADA or have lost their DOT certification, but not to employees who are unable to do their regular jobs due to being pregnant.

The 4th Circuit followed the majority view of the lower courts: Where a policy treats pregnant workers and nonpregnant workers alike, the employer has complied with the Pregnancy Discrimination Act.

The issue in Young v. United Parcel Service is:

Whether, and in what circumstances, the Pregnancy Discrimination Act requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”

I think the majority view is wrong, but I’m not sure the Supreme Court will agree with me.

Oral argument will be scheduled for October 2014 or later.

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

Harris v. Quinn: An anti-Abood manifesto

Abood’s analysis is “questionable.”

The basic holding in Harris v. Quinn (US Supreme Court 06/30/2014) is that the first amendment bars collection of union agency fees from Illinois homecare personal assistants who do not want to join or support the union. This was a 5-4 decision.

Illinois has a system under which private customers control most of their personal assistants’ employment relationship (hiring, firing, training, supervising, and disciplining) but the state pays the wages. A union represents all these personal assistants, and has a collective bargaining agreement with the state which includes a “fair share” clause that requires the personal assistants to pay a fee to the union. Such fair share clauses are common throughout both public sector and private sector collective bargaining, and historically have been upheld when challenged on first amendment grounds.

In Harris v. Quinn the Court saw these employees as not being “full-fledged public employees.” As such, the Court declined to apply its prior case – Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977) – which upheld fair share clauses in the public sector.

Technically, the decision did not overrule Abood. Yet the majority laid out a set of reasons why it believes Abood‘s analysis is “questionable.”

Here is the majority’s anti-Abood manifesto:

  • 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.

Public sector unions ought to be trembling today.

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