Category Archives: Pending Legislation

Vets discharged under Don’t Ask Don’t Tell

The ABA is supporting legislation to allow veterans who were discharged under the Don’t Ask Don’t Tell to request a change in their military records.

“Restore Honor to Service Members Act,” H.R. 2839, will ensure that veterans who were discharged solely because of their sexual orientation and did not receive an “honorable” characterization of service can have the opportunity to request their characterization be upgraded. In addition, those who did receive an honorable discharge would be able to remove any reference to sexual orientation from their records by requesting a review.

This bill was introduced on July 25, 2013 and was referred to committee.  Since July 25, 2013 there has been no movement.  The ABA President’s letter, dated November 21, urges the subcommittee to take action.

via Vets discharged under Dont Ask, Dont Tell should be allowed to seek change in records, ABA says.

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Government Shut Down and the NLRB

When the shut down occurred, the NLRB closed its doors.  What is interesting is that the NLRB’s website is also down.

There are several notes that need to be pointed down.  Even though the NLRB is shut down, unfair labor practice charges’ statute of limitations of 6 months keeps running.  The statute of limitations is the time that a person/organization/company has to enforce their rights.  After that period, they may lose their right to do so.

The federal register provides:

Extensions for time of filing cannot apply to the 6-month period provided by Section 10(b) of the Act for filing charges, 29 U.S.C. 169(b), or to Applications for awards of fees and other expenses under the Equal Access to Justice Act, 5 U.S.C. 504.

….

(emphasis added).

The federal register also cautions persons to file the charge via fax and to serve the charges themselves.  The federal register states:

Notwithstanding the foregoing, persons wishing to file a charge pursuant to Section 10(b) of the Act, and for whom the 6-month period of Section 10(b) may expire during the interruption in the Board’s normal operations, are cautioned that the operation of Section 10(b) during an interruption in the Board’s normal operation is uncertain.

Consequently, it would be prudent to file the charge during the interruption in the Board’s operations by faxing a copy of the charge to the appropriate Regional Office.

…..

Moreover, persons filing a charge are reminded that it is their responsibility… to serve a copy of the charge upon the person against whom the charge is made.  While Regional Directors ordinarily serve a copy of the charge on a person against whom the charge is made as a matter of courtesy, they do not assume responsibility for such service, and it is unlikely that the Agency will be able to serve the charges during any period of shutdown due to a lapse in appropriated funds.

(emphasis added).

In summary, you must do as follows:

  1. Serve the unfair labor practice charge and the applications of fees and other expenses via fax.
  2. Serve the papers to the person against whom the charge is made.

Regarding other issues, the federal register explains that they are postponed.  These include hearings in front of Administrative Law Judges, pre and post election hearings, and filing or serving of documents (including briefs and appeals).

via NLRB |.

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Military Survivor Benefits for Same-Sex Spouse

In Copper-Harris v. United States, Case No. 2:12-00887 (Aug. 29, 2013), the Central District of California District Court recently ruled that the military could not deny survivor benefits to a same-sex spouse.  This case is interesting because it brings up a very interesting conflict of laws.

California recognizes same-sex marriages and recently the Supreme Court reversed DOMA.  You can see my prior post discussing the DOMA decision here.

Meanwhile, the Veteran’s Benefits statute, Title 38, defines a survivor spouse as “a person of the opposite sex who was the spouse of a veteran.” 38 U.S.C. 101(3).

The federal District Court in California, without referencing DOMA or what would be the appropriate standard of review, sided with the same-sex surviving spouse.  Using a rational basis review, the military would have to show that their action was rationally related to the purpose of the statute.  The questions can be summed up as follows:

  1. Is the survivor benefit exclusion of same-sex spouses rationally related to the goal of gender equality and expansion of the availability of veteran’s benefits?
  2. Is the survivor benefit exclusion of same-sex spouses rationally related to caring for and providing for veteran families?

The court said no.  Relying on expert testimony, the court noted that “veteran’s benefits are essential to ensuring that servicemembers perform to their ‘maximum potential,’ and other purposes justifying veterans benefits including readiness, recruiting, cohesion, and retention.”  Further, the court concluded that excluding same-sex spouses were not rationally related to the promotion of gender equality.

The court, based on the stated purpose of the Veterans Benefits statute, held that there was no rational basis for prohibiting same-sex survivors to receive the survivor benefits.

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Safe Act for Victims of Domestic Violence of Sexual Assault

On October 1, 2013, the “Safe Act” becomes effective.  The Safe Act provides 20 days of unpaid leave to victims of domestic violence and sexual assault.  The employer can require that this unpaid leave be covered under FMLA, New Jersey FMLA, vacation, or personal leave.

The purpose of the Safe Act is to provide New Jersey victims with time to deal with matters related to an incident of domestic abuse or sexual assault.  The Safe Act covers:

  1. The employee,
  2. The employee’s child,
  3. The employee’s parent,
  4. The employee’s spouse,
  5. The employee’s domestic partner, or
  6. The employee’s civil union partner.

Within 12 months of the incident, the Safe Act’s purpose is to provide the victim of domestic abuse or sexual assault can:

  • Seek medical attention for, or recover from, physical or psychological injuries;
  • Obtain servies from victim services organization;
  • Obtain psychological or other counseling;
  • Participate in safety planning, temporarily or permanent relocate, or undertake other actions to increase safety;
  • Seek legal assistance or remedies; or
  • Attend, participate in, or prepare for court proceedings.

If the employer violates the Safe Act, the employee can ask for the following remedies: (1) Reinstatement; (2) compensation for lost wages and benefits; (3) an injunction; (4) attorney’s fees and costs; (5) civil find of $1,000 to $2,000 for a first time violation; and (6) a fine of $5,000 for any subsequent violations.

via Labor Employment Law Blog: New Jersey Provides Unpaid Leave to Victims of Domestic Violence.

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Is a Fourth Branch in the horizon?

The Washington Post has a very interesting article, which highlights the increased deferment of cases to government agencies.  Instead of going through the court system, many cases are increasingly going through administrative agencies instead.

The question posed here is whether the right for court accessibility being challenged?  The Washington Post raises its concerns:

The growing dominance of the federal government over the states has obscured more fundamental changes within the federal government itself: It is just not bigger, it is dangerously off kilter.  Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.

The Washington Post reports that the vast majority of laws governing the United States are not passed by Congress but are issued as regulations.  A study found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.

The Washington Post also reports that a citizen is 10 times more likely to be tried by an agency instead of an actual court.  While federal judges conduct roughly 95,000 adjudicatory proceedings (including trials), federal agencies complete more than 939,000.

However, there are several items the Washington Post fails to mention.  The increasingly use of administrative agencies does not only fall upon the agency.

Take for example the individual’s decision to file a charge/claim.  Going through administrative agencies is more cost-effective.  Lawsuits in court have become more expensive.  Technology, electronic evidence, growth in documents and companies, among others, lead to a higher volume of issues and motions that increase the cost of litigation.  Given both alternatives, it makes sense that an individual might choose to go through an administrative agency.

For example, an individual going through the EEOC for a discrimination charge does not have to pay anything.  While an individual going through the court system may have to pay attorney fees and might be responsible for attorney fees.

 

 

Saying that, however, the issue of transparency and timing is highly concerning.  Administrative decisions are not public.  In addition, the length of an administrative decision might take several years.

via The rise of the fourth branch of government – The Washington Post.

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Minnesota Senate joins House in approving same-sex marriage

This news exploded in the media and social media.  Minnesota is set to become the first Midwestern state and the 12th state in the U.S. to allow same-sex marriage.

Yesterday, Minnesota Senate voted 37 to 30 in favor of allowing same-sex marriage.  Earlier, the Minnesota House of Representatives voted 75 to 59 in favor for it.  As a backdrop, in the prior election, Minnesota voters rejected a proposed constitutional amendment that would have defined marriage as only between a man and a woman.

Governor Dayton stated that he will sign the bill once it comes to his desk.

via Minnesota Senate joins House in approving same-sex marriage | MinnPost.

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Major Possible Changes to Federal Discovery Rules

Corporate Counsel reported about a very important and significant change that might occur next year.  Here are the highlights of the proposed amendments (starting on Page 91 of 322).

The e-discovery rules may change once again by next year.  The United States Court’s Advisory Committee on Civil Rules voted last week to send proposed amendments to the Standing Committee on Rules of Practice and Procedure.  The Standing Committee will consider approving or rejecting the proposal in early June.

The most significant proposals would narrow the scope of discovery under Rule 26; impose or reduce numerical limits on written discovery and depositions under Rules 30, 31, 33, and 36; Rule 37 will adopt a uniform set of guidelines regarding sanctions when a party fails to preserve discoverable information; and Rule 34 will tighten the rules governing responses for production of documents.

Rule 26’s proposed amendments are as follows:

  • Rule 26(b)’s proposed amendment restricts the defined scope of discovery to information that is “proportional to the needs of the case.”  The language is as follows:

    “and proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

    These proportional considerations are currently listed in Rule(b)(2)(c)(iii).  This amendment would mandate adherence by the parties without court intervention.

  • Rule 26(b)’s proposed amendment would delete the following sentences:

    (1) “For good cause, the court order discovery of any matter relevant to the subject matter involved in the action.  Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”

  • Note, that the proposed amendment for Rule 26(b) states that “Information within this scope of discovery need not be admissible in evidence to be discoverable.
  • Rule 26(c) (protective orders) adds “or the allocation of expenses.”

Rules 30’s and 31’s proposed amendments are as follows:

  • The number of depositions (oral and written) would be reduced from 10 to 5.
  • The limit of an oral deposition is reduced to 6 hours.
  • The number of written interrogatories would change from 25 to 15.
  • The number of requests will be 25, except for requests relating to the genuineness of documents.
  • There will be a presumptive limit on the number of Requests for Admissions a party may serve.
  • A court order or a stipulation by the parties may increase the limits on any numerical discovery.

Rule 34’s proposed amendments (which govern the production of documents and electronically stored information) are as follows:

  • The objections to document requests must be stated with specificity.  This requirement has already been applied to interrogatory responses under Rule 33.
  • When the responding party must state that it will produce the requested documents (instead of permitting inspection), the production must be completed by the date for inspection stated in the request or by a later reasonable time stated in the response.
  • A party objecting to a document request must state whether any responsive materials are being withheld on the basis of the objection.

Rule 37(e)’s proposed amendment (which concern sanctions for failure to preserve discoverable information) state:

  • A court may impose sanctions when it finds that a party failed to preserve information that should have been preserved for litigation.  The sanctions includes remedies and curative measures that are not considered “sanctions,” such as allowing additional discovery, requiring a party to recreate or obtain the information that it lost, or ordering a party to pay reasonable expenses resulting from the loss of information.
  • The court may also impose sanctions listed in Rule 37(b)(2)(A) when to address preservation failures.  These sanctions include issue or evidence preclusion, the striking of pleadings, the dismissal of the action in whole or in part, and an adverse inference.
  • The court may impose sanctions or order an adverse jury instruction only if it finds that the failure to preserve caused “substantial prejudice” in the litigation and was “willful or in bad faith.” or that the failure to preserve “irreparably deprived a party of any meaningful opportunity” to litigate the claims in the action.

 

via On the Cusp of Major Changes to E-Discovery Rules.

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Jane Kelly confirmed for 8th Circuit bench

The Senate confirmed the nomination of Jane Kelly to the 8th Circuit Court of Appeals by a vote of 96-0.  There were 4 non-voting votes.  If you can’t find the link, go here and find Vote 00108 (April 24th).

Jane Kelly will be the second woman and first public defender to serve in the history of the court since its establishment in 1891.

Jane Kelly received her bachelor’s degree from Duke University and her law degree from Harvard Law School in 1991.  After her graduation, Jane Kelly clerked for U.S. District Judge Donald J. Porter of South Dakota and Eighth Circuit Court Judge D. Hansen.

Jane Kelly has been an assistant public defender in the Northern District in Iowa since 1992, and the supervising attorney since 1999.

On the Senate floor, Senator Chuck Grassley stated, “She is a credit to all of use who have chosen public service.”

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Minnesota Senate passes increased funding for public defenders

Minnesota Lawyer (subscription required) reports on the bill for public defenders’ funding.  The background of the funding for public defenders is as follows.

In 2008, public defenders were funded through attorney’s registration fees.  The Minnesota Supreme Court upheld this type of funding.  Through this funding, the state Board of Public Defense was able to generate around $1.9 million annually.  This request was reapproved in 2011.

However, in December, the state Board of Public Defense withdrew its request to earmark funding from the attorney registration fee.    This decision came in December, when various committees and group sections of the Minnesota State Board Association removed its support for the petition.

On Tuesday, April 16th, 2013, the state Senate passed a judiciary funding bill that increases funding for public defenders.  The bill provides $5 million for increased employee salary and benefits for public defenders.  The bill also provides $5.6 million for new public defenders positions that will reduce caseloads.  The Senate bill was passed by 47-18 votes.

The Senate Judiciary Finance Division Chairman Ron Latz (DFL-St. Louis Park) stated that the bill helps alleviate a public defender system that is “overworked, overburdened, [and] has some of the biggest caseloads in the country.”

via Minnesota Senate passes increased funding for public defenders | Minnesota Lawyer.

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Indiana Bill 373: whistleblower concerns

Indiana Senate Bill 373, which has not been adopted, has raised concerns.  The amended bill’s language is not currently available.

The bill provided that it is a Class A misdemeanor for defamation, to directly or indirectly harm the business relationship between the agricultural or industrial operation and its customers, and for trespass.  However, it is a defense if the person has a good faith belied that there is evidence of illegal activity and provides the recording to law enforcement or a regulatory agency within 48 hours after the person left the property or premises.

The original bill provided that persons could not take pictures or videos of the real property, structures located on the real property, or the agricultural operations or industrial operations being conducted on the real property without the consent of the owner or the representative of the owner.

The amended bill shifted its focus from unauthorized pictures and videos of the structure and operations to (1) trespassing and (2) those who gain employment by providing false information in order to gain access to inside information.  The amended bill states a person is guilty of trespass if he/she intentionally crosses a fence, a wall, or other constructed barrier that reasonably implies entry is prohibited.

The concerns from animal rights groups, unions, and representatives for news media are concerned that the revisions could become a way for employers to intimidate whistleblowers.

The bill will be presented to the full House for consideration.

via Indiana bill changes raise whistleblower worries – 14 News, WFIE, Evansville, Henderson, Owensboro.

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