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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Discrimination for being “unmanly”

The Fifth Circuit Court of Appeals (en banc) ruled that an iron worker who was subjected to gay slurs and simulated sex because he failed to conform to the employer’s male stereotypes was discriminated against under Title VII.

In EEOC v. Boh Bros. Constr. Co., No. 11-30770 (5th Cir. Sept. 27, 2013), the  court reviewed the jury’s findings and awarded damages.  The Fifth Circuit found that taking the case as a whole, a jury could have found that the employee was harassed because he did not fall under the “manly-man stereotype.”

This case arose when a worker, Kerry Woods, was subjected to sex harassment.  Woods was often sexual derogatory terms regarding Woods’ sexuality.  In addition, the superintendent also exposed himself when Woods was going to the bathroom, and made sexual innuendo comments to Woods.  When these actions were brought to the employer, the superintendent told the general superintendent that he didn’t care for Woods because he was “different” and “didn’t fit in.”

After trial the jury found that this verbal and physical harassment occurred daily.  The jury awarded Woods $200,000 in compensatory damages and $250,000 in punitive damages.

via Harassed for being unmanly? En banc court sees Title VII violation; dissent sees clean-talk enforcer.

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Home Health Care Rule and FLSA

Starting January 1, 2015 home care aides are not exempt from Wage and Overtime laws.  The Department of Labor released a press release discussing this wage and hour change as well as unveiling a new web portal with interactive tools.  The web portal for Home Care can be accessed here.

In the DOL’s press release, DOL stated,

This change will result in nearly two million direct care workers – such as home health aides, personal care aides and certified nursing assistants – receiving the same basic protections already provided to most U.S. workers.

The DOL also explained that this wage and hour new rule did not apply to companionship workers.  The DOL stated,

The final rule also clarifies that direct care workers who perform medically-related services for which training is typically a prerequisite are not companionship workers and therefore are entitled to the minimum wage and overtime.

And, in accordance with Congress’ initial intent, individual workers who are employed only by the person receiving services or that person’s family or household and engaged primarily in fellowship and protection (providing company, visiting or engaging in hobbies) and care incidental to those activities, will still be considered exempt from the FLSA’s minimum wage and overtime protections.

The final rule can be accessed here.

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Clicking ‘like’ is protected by First Amendment, 4th Circuit says

The ABA Journal has an interesting case regarding Facebook and its “likes.”  If you use Facebook, it is very likely that you have “liked” a page, a comment, a photo, etc.  The 4th Circuit Court of Appeals recently held that a “like” is protected under the First Amendment.

In Bland v. Roberts, No. 12-1671  (4th Cir. Sept. 23 2013), six plaintiffs allege that because their support for the Sheriff’s opponent, the Sheriff retaliated by choosing not the reappoint them. One of the plaintiffs had “liked” the opponent’s Facebook page.

The First Amendment application for a public employee is interesting. In order for a public employee to enjoy First Amendment protection and show that the employer violated the First Amendment, the employee has to show 3 items.

  • (1) the employee was speaking as a citizen upon a matter of public concern rather than an employee about a matter of personal interest;
  • (2) the employee’s interest in speaking upon the matter of public concern outweighed the government’s interest in providing effective and efficient services to the public; and
  • (3) the employee’s speech was a substantial factor in the employer’s termination decision

Furthermore, the degree of the protection depends on whether the political affiliation or political allegiance is an appropriate requirement for the effective performance of the public office.  Here, the three deputies were trained as jailers and had never made an arrest.  In other words, their political support for the Sheriff’s opponent may not a requirement for their performance of their duties.  This speech includes a “like” on Facebook.  The 4th Circuit remanded the case for further proceedings.

via Clicking ‘like’ is protected by First Amendment, 4th Circuit says.

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Non-existing law was applied when deporting U.S. Citizen

This is a very interesting case regarding immigration and obtaining citizenship through a U.S. citizen parent.  Basically, this case used Article 314 of the Mexican Constitution when determining whether to deport individuals who claim American citizenship.

In Mexico, Saldana was born to an American male and a Mexican female. His birth certificate listed both parents.  DHS deported him and denied his citizenship application on the basis that he was born out-of-wedlock.

According to DHS, Article 314 provided that children born out of wedlock can only be legitimized if the couple marries subsequently. At oral argument, however, the government admitted that Article 314 did never existed.  DHS then cited Article 130 alleging it required marriage for legitimacy of children.

The Fifth Circuit Court of Appeals held in their opinion disagreed. Article 130 merely cited that marriage was a civil contract, rather than a religious one.  In addition, the court noted that this article said nothing about the legitimization of children.  The court explained,

In sum, under the laws of Tamaulipas, Mexico, where Saldana was born and resided as a child, he was acknowledged by his father when his father placed his name on the birth certificate before the Civil Registry.  As an acknowledged child, Saldana had the same filial rights vis-a-vis his father as a “legitimated” child.

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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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Attorney Client Privilege: Law firms and In-House Counsel

This is a very interesting article.  The attorney-client privilege is an important confidentiality rule that protects certain communications between a client and the lawyer/law-firm.  The attorney-client privilege is an important privilege because it encourages clients to be candid with their attorney.

The ABA adopted Resolution 103, which provides that the attorney-client privilege extends to communications between a law firm and in-house counsel for the purpose of facilitating legal services.  The resolution provides that these communications are protected to the same extent between the lawyer/law-firm and personnel of a corporation or other entity.

The ABA explains,

The measure stems from the increasing complexity of regulation, rules of professional conduct and greater disclosure obligations under legislation such as the Sarbanes-Oxley Act.

via Attorney-client privilege should apply to law firms consults with in-house counsel, ABA House says – ABA Journal.

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Fair Labor Standard Act and Individual Liability

In Torres et al. v. Gristedes Operating Corp. et al., Case No. 11-4035 (July 9, 2013), the Second Circuit Court of Appeals held that a mayoral candidate, a supermarket owner, and an executive can be individually liable for settlement payments arising of a Fair Labor Standard Act class action.

In this case, the parties settled the class action.  A class action is a discrimination case brought by a few plaintiffs on behalf of many employees.  All of the members who agreed to be part of the class (the individuals who were discriminated against) receive their part of the settlement.  In order for a fair disbursement, the Judge must adopt the settlement.

Under the settlement, the defendants agreed to pay $3.5 million to the class.  However, the defendants defaulted on the payments.  The judge’s order allowed the class to enforce the settlement.  Defendants, who sought to change the settlement, stated that they were not bound by the settlement because they were not “employers.”

The Second Circuit Court of Appeals disagreed.  The Court noted that the defendants exercised “operational control” that affected the class’ employment.  For example, based of their decisions, the employees’ wages were affected.  Because defendants were employers, defendants were bound by the settlement.  Based on this decision, defendants now have to pay the owed money.

via Labor Employment Law Blog: Second Circuit Imposes Individual Liability on New York Mayoral Candidate for Fair Labor Standards Act Settlement.

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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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Government Can Track Cellphones Without Warrants

Mostly everyone has a cell phone.  A lot of smartphones have GPS capabilities.  This can be handy when you are looking for directions and you are lost.  However, what about being tracked?  For instance, unless you change your privacy settings, your photos will keep track of where you took the picture and what time.

The question the Fifth Circuit Court of Appeals decided is whether the government needs a warrant to track you.  In In re: Application of the U.S.A. for Historical Cell Site Data (July 30, 2013 5th Cir. Ct.), the court ruled that obtaining cell-location information without a warrant  did not violate the Fourth Amendment.

When we think of the Fourth Amendment we remember that a search and seizure may require a warrant.  If there is no expectation of privacy, i.e. in a garbage bag we got rid of, then the government wouldn’t need a warrant.  However, if we have an expectation of privacy, i.e. to enter your house, then the government must have a warrant.

An expectation of privacy usually is the crux of a search and seizure case.  Here, the ACLU argued that people have a reasonable expectation of privacy when they are being tracked for a long period of time and the data gathered is collected in great detail.

In this case, this argument was not discussed by the court.

Why would this not be discussed?  The Fourth Amendment deals with government actions.  In other words,  the seizure or search has to be collected by the government.  In a similar case, the Supreme Court had decided that the government must obtain a warrant if it wants to install a GPS tracking device.  See United States v. Jones (2012).

However, this case was found to be different.  The reason for this is because the Fifth Circuit Court of Appeals found that the information was collected by a third-party, i.e. the cell phone carrier.  The court explained,

Where a third party collects information in the first instance for its own purposes, the Government claims that it can obtain this information later with a [section] 2703(d) order, just as it can subpoena other records of a private entity.  We agree.

Id. (citations omitted).

Here, the government was not installing a GPS tracking device.  The Government was accessing a business record owned by carriers.  The court stated:

… cell site information is clearly a business record.  The cell service provider collects and stores historical cell site data for its own business purposes, perhaps to monitor or optimize service on its network or to accurately bill its customers for the segments of its network that they use.   The Government does not require service providers to record this information or store it.  The providers control what they record and how long these records are retained.

Consequently, the court found that the Government did not need a warrant.

via Cops Can Track Cellphones Without Warrants, Appeals Court Rules | Threat Level | Wired.com.

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