Tag Archives: State

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

DOMA is unconstitutional

The Supreme Court opinion on United States v. Windsor, No. 12-307 (2013) held that DOMA was unconstitutional under the Fifth Amendment when it failed to recognize same-sex marriage federally.

It is important to note that the reasoning behind this ruling was based on the fact that there are States which granted same-sex marriage but were not recognized federally.  By failing to recognize those same-sex marriages, the government was discriminating against same-sex married couples.  In doing so, same-sex married couples were deprived of the benefits and responsibilities of over 1,000 federal laws.  Including protections under criminal law and provide financial harm to children of same-sex couples.

The Supreme Court noted that the State’s authority to regulate marriages was being squashed by the federal government.  Based on precedent, “[e]ach state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders.”  “The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.'” (italics added).

Instead of respecting the State’s authority to regulate marriages, DOMA’s purpose was to “impose a disadvantage, a separate status, and so a sigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”

Given that DOMA’s purpose was to impose restrictions and disabilities, the Supreme Court stated that “[b]y doing so [DOMA] violates basic due process and equal protection principles.”

The Supreme Court found that

DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.  The principal purpose is to impose inequality, not for other reasons like governmental efficiency….

DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities.  By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.

1 Comment

Filed under civil rights, courts, federal, legal decision, state, Supreme Court

Class action plaintiff can’t avoid federal court

The SCOTUS blog reports on Standard Fire Ins. Co. v. Knowles, 11-1450 (2013).  Here, the Supreme Court held that federal courts aren’t bound by plaintiffs in proposed class actions who try to keep cases in state court by stipulating to the amount in controversy.

The Supreme Court ruled on Tuesday in a unanimous opinion by Justice Stephen G. Breyer. Lead plaintiffs don’t have the authority to bind others prior to class certification and their stipulations don’t make “a critical difference,” Breyer said.

At issue were provisions in the Class Action Fairness Act giving federal courts original jurisdiction in class actions when the aggregated amount in controversy exceeds $5 million and there are more than 100 class members.

Lead plaintiff Greg Knowles had filed his suit in Miller County, Ark., and stipulated that the amount in controversy was less than $5 million. His would-be class action against Standard Fire Insurance Co. had alleged the insurer underpaid claims for hail damage. According to the complaint, “hundreds, and possibly thousands” of people in Arkansas had similar claims.

A federal court considering Knowles’ bid to send the case back to state court had found that the amount in controversy would have exceeded $5 million, absent the stipulation.

Breyer said Knowles’ stipulation does not remove the case from the scope of the federal class-action law. “The stipulation at issue here can tie Knowles’ hands, but it does not resolve the amount-in-controversy question in light of his inability to bind the rest of the class,” Breyer wrote. “For this reason, we believe the district court, when following the statute to aggregate the proposed class members’ claims, should have ignored that stipulation.”

via SCOTUS: Class action plaintiff can’t avoid federal court by stipulating to amount in controversy – ABA Journal.

Leave a comment

Filed under courts, legal decision, Supreme Court

Economic state – a close up examination

So what is the employment state of the US right now?  You would be surprised at what the numbers really mean.

On Friday March 8th the Bureau of Labor Statistics released the most anticipated report of the employment situation.  The report found:

  • Unemployment decreased to 7.7% in February.  The number of unemployed persons also edged lower in February to 12 million.
  • Total nonfarm payroll employment increased by 236,000 in February.

So does this mean that the economy state keeps booming every month?  Not really.

It is important to look at a very important report, which is usually clouded: The Job Openings and Labor Turnover.

Why is this report so important?  For one, it shows the population’s confidence on whether they would find other employment if they quit their current job.  Second, it really shows a clear picture of how many people lost their job.  So hypothetically, if the US lost 1 million jobs, but only gained 500,000 – this doesn’t bode very well for the economy.

On Tuesday March 12th, the Bureau of Labor Statistics released the Job  Openings and Labor Turnover.  This report found:

Jon Openings

  • The number of job openings (3.7 million) did not change much from December.
  • The number of openings rose in professional and business services.
  • However, it decreased in health care and social assistance.
  • All remaining industries did not change much from January.

Hires Rate

  • The hires rate (3.1%) changed little from January.  The hires rate was not seasonally adjusted.
  • The hires rate decreased in mining and logging and in the arts, entertainment, and recreation.
  • The hires rate was unchanged for total nonfarm, private, and government.

Separation Rate

  • The separation rate includes: (1) quits; (2) layoffs; and (3) discharges.  The overall separations rate (3%) changed little from January.
  • The overall quits rate was unchanged at 1.6%.  The quits rate was not seasonally adjusted.
  • The quits rate edged up for total private in January.
  • The quits rate for government was unchanged.
  • The layoffs and discharges rate was seasonally adjusted.  The layoffs and discharges rate changed little from January at 1.1%.

So what does these statistics show?  For one, that the overall rate of job openings has not really changed.  Similarly, the overall rate of separation rate has not really changed.

Most interesting is the fact that upon close examination – the where of these job openings has changed.

In the health care and social assistance industries, the rate of job openings have decreased.  The question posed is – will this affect the services accessibility to the public?

The education and health services rate was 3.1% (January 2012), 3.2% (December 2012), and 2.8% (January 2013).  Since December 2012 to January 2013, we are seeing a 0.4% decrease.

The health care and assistance rate was 3.4% (January 2012), 3.4% (December 2012), and 3.0% (January 2013).  From December 2012 to January 2013, we also saw a 0.4% decrease.

On the more positive side, the job openings rate increased in the professional and business services, as well as in construction.

The construction industry rate has been slowly increasing. The rate is 1.4% (January 2012), 1.6% (December 2012), and 1.7% (January 2013).

The professional and business services also show a very promising increase.  In other words, we are almost back to January 2012 rates.  The rate is 3.7% (January 2012), 3.1% (December 2012), and 3.6% (January 2013).  This means that we have seen a jump of 0.5%, which puts at near the rate of January 2012.

 

via Job Openings and Labor Turnover Summary.

Leave a comment

Filed under employment, labor

Admission to the MN Bar changes

On January 17, 2013, the Minnesota Supreme Court has affirmed changes to the admission to the Bar.  The amendments that changed the Rules of Admission are:

Definitions:  Rule 2A(12) definition of Uniform Bar Examination.  Under the new amendment, UBE is “an examination prepared by the National Conference of Bar Examiners (NCBE), comprised of six Multistate Essay Examination questions, two Multistate Performance Test questions, and the Multistate Bar Examination.  See amendments to Rule 7C (Admission by UBE score).

Requirements for Admission:  Rule 4A(4) was amended to state that an eligible applicant must provide satisfactory evidence of a passing score on the written examination under Rule 6 and is not eligible for admission under Rules 7A (Eligibility by Practice), 7B (Eligibility by MBE), 7C (Eligibility by UBE), 8, 9, or 10.

Requirements for Admission:  Rule4B was stricken.  Rule4B previously stated that the applicant had to be a resident of Minnesota or maintain an office in Minnesota or designate the Clerk of Appellate Courts as agent for service of process for all purposes.

The Examination:  Rule 6E(1) Essay Questions was amended to delete the following subjects:

  1. Civil Procedure (but note that the amendment added a Federal Civil Procedure subject);
  2. Ethics and Professional Responsibility;
  3. Federal Individual Income Taxation;
  4. Uniform Commercial Code Art. 1 &2 (but note that under the Contracts subject, the amendments include the UCC; as well as the new subject of Negotiable Instruments); and
  5. Wills, Estates and Trusts (but note that there is a new subject of Trusts and Estates).

The Examination:  Rule 6E(1) Essay Questions added the following subjects:

  1. Conflict of Laws;
  2. Federal Civil Procedure;
  3. Negotiable Instruments (Commercial Paper) under the UCC;
  4. Secured Transactions under the UCC; and
  5. Trusts and Estates.

The Examination:  Rule 6E(1) Essay Questions further stated what topics where covered under the following subjects:

  1. Business Associations – the subject no longer includes proprietorships;
  2. Contracts – the amendment stated the subject includes contracts under the UCC; and
  3. Trusts and Estates – the subject includes Decedents’ Estates, and Trusts and Future Interests

The Examination: Rule 6E(2) Multistate Performance Test stated there will be two 90-minute questions.  The prior rule stated one or two.

Admission Without Examination:  Rule 7A(C) Eligibility by UBE score was added to the ways an applicant may be admitted.  Rule 7A(C) states that the applicant might have received a certified scaled score of 260 or higher.  Rule 7A(C) also states the application must be completed within 36 months of the date of the examination.

Admission Without Examination:  Rule 7A(D) Transfer of MBE or UBE score was amended to add UBE.

Confidentiality and Release of Information:  Rule 14C(4) Examination of Data now includes the disclosure of the UBE.  In addition Rule 14C(5) specifies that the director may release copies of unsuccessful examinee’s answers to MEE and MPT questions.

via STATE OF MINNESOTA. (published by Minnesota Lawyer – subscription required).

Leave a comment

Filed under Law Schools, law students, Minnesota, rules

Lawyer’s misconduct did not prevent class action certification

In a class action, lawyers’ conduct when contacting (or trying to contact) possible putative class members, is regulated by the court or federal statute.

In this case, the 7th Circuit Court of Appeals determined  that class counsel’s faxing of unsolicited advertisement was misconduct.  The decision rested on the question of whether the law firm bribed a third-party in order to obtain a list of the possible putative class members.  Due to a lack of evidence that the payment of $5,000 was a bribe, the court allowed the class to be certified.

I raise this case because it raises the issue of attorney misconduct.  First of all, there are across-the-states ethics rules that govern attorneys’ conduct.  You can access ethics rules governing attorneys by going to the state court’s website and looking for the Board of Professional Responsibility or ethics rules.

As the 7th Circuit Court of Appeals highlighted multiple times, the law firm’s misconduct could possibly warrant disciplinary action.  The Court of Appeals commented that litigants and attorneys should report to the relevant bar authority (the Board of Professional Responsibility) instances of attorney misconduct.  Otherwise, the court warned, unpunished and inappropriate attorney conduct will continue.

In fact, there are ethical rules that discuss the reporting of misconduct.  In Minnesota, Rule 8.3 discusses the reporting of professional misconduct.  Rule 8.3 states, in relevant part,

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

Secondly, in a class action, the class representatives through their class counsel must show that the class counsel can appropriately represent the class.  In other words, the court must decide that the law firm can properly represent the entire class (which may in the hundredths).

So, if a law firm possibly engaged in misconduct, i.e. shows a lack of integrity – is the law firm’s representation proper?  The court did state that unethical conduct (regardless of whether it is prejudicial) raises “serious doubt” as to counsel’s ability to adequately represent the class.

via Courthouse News Service.

Leave a comment

Filed under Appellate, attorneys, courts, legal decision, Minnesota, rules, sanctions, Supreme Court