Monthly Archives: July 2013

Targeting Union Employees For Layoffs Violates The First Amendment

The Second Circuit Court of Appeals brings an interesting labor decision.  In State Employee Bargaining Coalitation v. Roland, ___F.3d___( 2d Cir. May 31, 2013), the court found that targeting Union employees for layoffs violates the First Amendment (freedom of association).

In this case, the employer employed around 50,000 people.  75% of these employees were members of the Union, and 25% were not.  In December 2002, the employer fired only Union employees.  No non-Union employees were fired.

It is important to note that an employer can manage the size of their work force.  However, the employer cannot target a protected group (here, employees who associated themselves with the Union).  The reason for this is because by targeting a protected group, the effect is to inhibit employees from their freedom to associate.

Under the Constitution, in order for the employer to not violate the Constitution it must show that they used the less restrictive means to accomplish their interest and must be narrowly tailored to achieve their goals.

The following are the pivotal facts of this case.  The employer’s interest was to manage their economical situation.  However, the laying off those Union employees had a minimal effect on their budget.  In fact, these Union-only lay offs were not included in the Balanced Budget Plan.  Further, the facts showed that because both Union and non-Union employees had the same health care and pension benefits there was no reason why only the Union employees were targeted.

via Adjunct Law Prof Blog: Targeting Union Employees For Layoffs Violates The First Amendment.

Advertisements

2 Comments

Filed under Appellate, civil rights, courts, discrimination, District Court, employment, federal, labor, legal decision, union

AMA declares obesity a disease

The American Medical Association (AMA) declared that obesity is a disease and not a condition.  AMA board member Patrice Harris stated in a statement,

Recognizing obesity as a disease will help change the way the medical community tackles this complex issue.

As background, the U.S. has been consistently rated as No. 1 in obesity.  Recently, Mexico took the No. 1 spot and the U.S. moved to No. 2.  See Huffington article, Mexico Obesity Rate Surpasses The United States (July 9, 2013).  Mexico was reported to have 32.8% obesity rate while the U.S. has a rate of 31.8%.

This new definition may have an unknown impact in disability claims.  The ABA Journal reports:

Although the AMA’s action was intended to affect medical treatment for the obese, “there’s a high probability it will make it easier for an obese employee to argue that he or she is disabled,” said partner Myra Creighton of Fisher & Phillips.

“It may be easier for employees to prove disability discrimination,” Creighton, who represents employers, told the newspaper. “And, if classified as a disease, it will be difficult for employers to argue that any level of obesity is not an impairment.”

The EmploymentEmployment Opportunity Commission (EEOC) has previously defined a “morbid” obese individual as disabled.  Seee.g.JD Supra, Morbid Obesity as a Covered Disability under the ADA (July 30, 2012)EEOC Press Release (July 24, 2012); EEOC Press Release (Apr. 10, 2012), EEOC Press Release (Sept. 27, 2011).

It would be interesting to see if the EEOC will change its definition of obesity as a disability.

via Obesity is a disease, AMA says, aiding weight-related disability claims – ABA Journal.

Leave a comment

Filed under civil rights, discrimination, employment, federal, legal research

Judge OKs $1.6B settlement in Toyota class action

You may remember this story that exploded all over the news.  Around the end of 2009 and start of 2010, the news reported that some Toyota cars had sudden-acceleration defects.

Toyota recently settled a federal class action.  U.S. District Court Judge James V. Seina approved of the federal class action settlement.  The settlement approved is for $1.6 billion, which includes attorney fees and costs calculated at $227 million.  The class members are said to receive anywhere between $125 to $10,000 each.

Toyota has denied liability for the alleged sudden-acceleration problem with the vehicles, as provided in the language of the settlement.  The ABA reports that a spokeswoman for Toyota stated,

This agreement allows us to resolve a legacy legal issue in a way that provides significant value to our customers and demonstrates that they can depend on Toyota to stand behind our vehicles,

It is important to note that Toyota is still facing trials in more than 80 state court lawsuits over the alleged sudden-acceleration defects.

via Judge OKs $1.6B pact in Toyota class action as trial begins in first wrongful death case – ABA Journal.

Leave a comment

Filed under courts, District Court, federal

Court orders reporter to testify in leak case re: Sterling

The Fourth Circuit Court of Appeals ruled in a 188-page decision that there is no journalist protection of sources.  The decision can be viewed here.

In this case, ex-CIA officer Sterling worked for the CIA from 1993 to Jan. 2002.  During his tenure, he provided classified information to a NT Times reporter Risen.  In 2001, Risen published two articles based on classified information provided to him by Sterling.  After Sterling’s employment was terminated, Sterling attempted to publish a book but was denied ultimately because it contained classified information.

Afterwards, and while Sterling was pursuing legal action against the CIA, Sterling again gave Risen classified information.  NY Times Reporter met with senior administration officials to discuss the impact of the story.  The recommendation was to not publish, which the NY Times agreed to.  Nevertheless, NY Times reporter Risen published his book, “State of War: The Secret History of the CIA and the Bush Administration,” which disclosed classified information.

As a result, the Attorney General sought to compel Risen’s testimony about the identity of his source.  Risen motioned to quash the subpoena on the basis that he was protected under the First Amendment or/and the federal common-law reporter’s privilege.

 

The Circuit Court of Appeals disagreed.  The court held that Risen did not have a reporter’s privilege.  The Circuit Court of Appeals relied heavily on Supreme Court cases.

In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court in no uncertain terms rejected the existence of a reporters’ privilege.   In Univ. of Pa. v. EEOC, 493 U.S. 182, 201 (1990), the Supreme Court explained that the “First Amendment does not invalidate every burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability.”  In Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991), the Supreme Court again stated that the First Amendment does not “relieve a newspaper reporter of the obligation shared by all citizens to a grand jury subpoena and answer questions relevant to a criminal investigation, even though the reporter might be required to reveal a confidential source.”

Pointedly, the Circuit Court of Appeals refused to apply a “balance test” approach when deciding whether a reporter can be compelled to testify in criminal proceedings.  The court noted that in civil matters, the court recognized a reporter’s privilege which could be overcome if the 3-part test was met.

The Circuit Court of Appeals noted why this line is so important.  In criminal cases, there is a fundamental and comprehensive need for every man’s evidence.  For this reason, any shield to information has to be narrowly construed.  In a civil matter, however, the need for information does not share the same urgency or significance.

For these reasons, the Fourth Circuit Court of Appeals ordered NY Times reporter Risen to testify in the criminal trial of former CIA official Sterling charged with providing the reporter with classified information.  In so doing, the Court of Appeals held that the First Amendment does not protect reporters who receive unauthorized leaks from being forced to testify against the people suspected of leaking to them.

Leave a comment

July 22, 2013 · 13:45

Detroit Bankruptcy is Unconstitutional

As a follow up to the prior post reporting on the bankruptcy filing of Detroit, now a Michigan court has ruled that the bankruptcy filing is unconstitutional.  The decision can be accessed here.

The background of this legal battle raises a lot of legal questions.  The events are as follows.  First, Detroit announces it will be declaring bankruptcy.  Then, lawsuits are filed to block bankruptcy filings/proceedings.  An emergency hearing is scheduled on Thursday (last week) in front of a judge about blocking the bankruptcy proceedings.  Five (5) minutes before the Thursday hearing, Detroit files a petition for bankruptcy.  Afterwards, another hearing is set for Friday.

On Friday, the Ingham County Court ruled against the city.  The court relied on Michigan’s state constitution, which prohibits actions that diminish or impair pension benefits of public employees.  Because Detroit was aware that declaring bankruptcy would affect negatively the pension benefits of public employees, the court ruled that it acted unconstitutionally.

Michigan’s Attorney General Schuette stated that Detroit will be appealing the ruling.  The Attorney General also stated that they will be requesting a stay on the bankruptcy proceedings until the appeal is heard.

This background is so interesting because it raises a lot of legal questions.  Filing a Chapter 9 petition gives the bankruptcy court exclusive jurisdiction over the debtor’s (Detroit) assets.  The interesting predicament is that Detroit filed a petition for bankruptcy five (5) minutes before the Thursday hearing — before any order from the Ingham County Court.

Yet, the state court is ordering the Governor to “(1) direct the Emergency Manager to immediately withdraw the Chapter 9 petition filed on July 18, and (2) not authorize any further Chapter 9 filing which threatens to diminish or impair accrued pension benefits.”

Some of the questions include how to reconcile the state’s and the bankruptcy’s court jurisdictions.  For example, can the state court order state officials (like the Governor) to withdraw the petition? How can a bankruptcy proceeding reconcile itself with Michigan’s state constitution? Are the plaintiffs subject to sanctions for violating a stay in bankruptcy court?

The Huffington Post has an interesting tidbit:

Michigan is one of nine states that explicitly protects public employee pensions in its state constitution.  But the state of Michigan doesn’t guarantee the money to public employees if a city defaults or can’t pay those bills…

The law of bankruptcy is enshrined in the U.S. Constitution.  And the limited case law of Chapter 9 bankruptcy, which applies to cities and municipalities, doesn’t say whether a judge can legally subvert Michigan’s constitution to lessen Detroit’s obligations to its pensioners.

You can read more about Michigan’s constitution protecting public employees’ pensions here.  Some other notable Chapter 9 bankruptcy proceedings nuclide Jefferson County, Alabama (2011) and Orange County, California (1994).

via Detroit bankruptcy unconstitutional, judge rules in pension case – ABA Journal.

Leave a comment

Filed under courts, District Court, ERISA, federal, legal decision

Hair evidence analysis is not so great

I came across this very interesting press release which stated that in many FBI cases hair analysis’ reliability was exaggerated when making a positive identification in FBI cases.  These include 27 capital cases.

According to the press release, the FBI labs reports have consistently asserted that hair analysis can’t be used to make a positive identification.  However, some FBI agents asserted that hair analysis led to near-certain matches.

In other words, the practice of using hair analysis was deemed “highly unreliable” by the National Academy of Science.  Even though it is possible to conduct hair microscopy and find similarities among various samples, “in many cases the FBI analysts were overstating the significance of these similarities, often leaving juries with the false impression that a hair recovered from the crime scene must have come from the defendant and could not have come from anyone else.” (italics and underline added).

The FBI and the Justice Department uncovered the cases in a review of more than 20,000 lab files that was undertaken in consultation with the Innocence Project and the National Association of Criminal Defense Lawyers, the story says.  So far, about 15,000 files have been reviewed, turning up about 2,100 cases in which hair evidence was used and 120 convictions that could be problematic, including the 27 capital cases.

The Innocence Project Co-Director Peter Neufeld made the following statement:

The government’s willingness to admit error and accept its duty to correct those errors in an extraordinarily large number of cases is truly unprecedented.

The Justice Department will notify prosecutors, convicted defendants and their lawyers if a review panel finds FBI examiners made excessive claims. In such cases, the Justice Department will waive rules that restrict post-conviction appeals and will test DNA evidence upon the request of judges or prosecutors.

Leave a comment

Filed under civil rights, courts, discovery, federal, Privacy Rights

Detroit files for bankruptcy

When I heard about this story on NPR I wasn’t surprised.  Detroit has struggled since the closing of car factories.  Several years ago when I visited Detroit, in my opinion Detroit seemed like an empty city.  The factories were big lots of land deserted.

Yesterday (July 18th) Detroit filed for bankruptcy under Chapter 9.  Detroit is seeking to negotiate is $18.5 million debt.  Governor Snyder stated,

The fiscal realities confronting Detroit have been ignored for too long. I’m making this tough decision so the people of Detroit will have the basic services they deserve and so we can start to put Detroit on a solid financial footing that will allow it to grow and prosper in the future.

This is a difficult step, but the only viable option to address a problem that has been six decades in the making.

Consequently, two pension funds have filed a complaint against emergency manager Kevyn Orr (Gen. Ret. Sys. of the City of Detroit v. Orr., No. 13-768-CZ, Circuit Court Ingham County, Michigan) and Governor Snyder seeking to block the bankruptcy from proceeding.

The funds allege that a bankruptcy proceeding would interfere with the constitutional protection of public retiree rights.

via Detroit files for bankruptcy, the biggest US city ever to do so – ABA Journal.

Leave a comment

Filed under civil rights, courts, state, union

Law Schools Cuts

The ABA Journal reporting on an interesting trend.  Law Schools are trying to deal with the current economic situation and the decline of law school applicants.

The Wall Street Journal  (subscription required) reports that LSAC’s (Law School Admission Council) most recent data shows that as of July 5th, applications for the entering class of 2013 fell by 36% compared to the entering class in 2010.

These faculty cuts are noted in the article:

  • Hamline University School of Law in St. Paul, Minn., has cut full-time faculty about 18 percent since 2010. Fourteen faculty members have left or plan to leave after accepting early retirement incentives.
  • Eight professors at Vermont Law School have agreed to retire early, take pay cuts or give up tenure.
  • Twenty-one professors accepted buyout packages at Widener University School of Law in Wilmington, Del., and Harrisburg, Pa.
  • Seven professors accepted early retirement packages from the University of Dayton School of Law.
  • Seven untenured professors at Seton Hall University School of Law in Newark, N.J., have received notice that their contracts might not be renewed for the 2014-15 academic year.
  • The University of the Pacifics McGeorge School of Law in Sacramento, Calif., is accelerating plans to cut the size of the law school and use some of its campus for other graduate-level classes.

via Law schools cope with declining enrollment by quietly cutting faculty – ABA Journal.

Leave a comment

Filed under Law Schools, Minnesota

Fifth Circuit Holds Lactation Discrimination is Unlawful Sex Discrimination

The E.E.O.C. (Equal Employment Opportunity Commission) issued a press release about an important decision coming from the Fifth Circuit Court of Appeals.

In this decision, the court held that the company unlawfully discriminated against a female employee when they fired her.  In this case, the female employee was lactating or expressing milk.  The female employee asked her employer if she would be able to pump breast milk at work.  The company then fired the employee.

The court relied on the Title VII of Civil Rights Act, which was amended by the Pregnancy Discrimination Act of 1987.  The Pregnancy Discrimination Act provided that a company could not discriminate against a female worker on the basis of pregnancy, childbirth, or a related medical condition.

The Fifth Circuit Court of Appeals dismissed the argument that “pregnancy-related conditions” ended on the day the mother gave birth.  In its decision, the court explained that lactation was a physiological condition distinct to women who have undergone a pregnancy.  In other words, women, not men, lactate or express milk.  Therefore, a company discriminates based on sex when it fires a woman for lactating.

via Fifth Circuit Holds Lactation Discrimination is Unlawful Sex Discrimination.

Leave a comment

Filed under civil rights, discrimination, employment, federal, legal decision