After JFK's National Address
by Michael Fox
Medgar Evers, a field secretary for the NAACP was shot dead as he got out of his car in his drive way in Jackson, Mississippi. It was just one of many incidents in the summer of 1963 that kept the pressure for the passage of the Civil Rights Act of 1964 moving forward. Medgar Evers Wikipedia entry.
Tuesday, June 11, 2013
A Doorway Stand and One Big Step Forward
by Michael Fox
On June 11, 1963, George Wallace made his famous "segregation forever" speech while standing in the door to block the integration of the University of Alabama. (Wonder what Coach Saban would think of that idea?). After President Kennedy nationalized the Alabama National Guard, Wallace stepped aside.
Although that was certainly the iconic moment of the day, a much more important event occurred that evening when President Kennedy addressed the nation on the issue of civil rights. The NYT's editorial today talks about its significance, Kennedy’s Civil Rights Triumph.
For the first time, the President framed civil rights as a "moral issue." More importantly for the development of employment law, President Kennedy promised that his administration would be introducing and supporting a comprehensive civil rights bill that would cover among other things employment.
Earlier in Congress, a civil rights bill had been introduced but it was fairly toothless. What was contemplated and what ultimately was introduced was a much more significant act.
Monday, June 10, 2013
The Equal Pay Act of 1963, The First Tentative Step
by Michael Fox
The first 87 Congresses of the United States did not really give much thought to the relationship between an employer and its employees. When Congress had acted the focus was on regulating the power between organized labor (unions) and management. While certainly a major factor in the work world, those legislative actions only incidentally involved the basic relationship between the individual employee and their employer.
In 1938, Congress had established some work place minimums, but even then it was as much a desire to help pull the country out of the depression as regulating the workplace. And with the limited exceptions that led to the 1947 Portal to Portal Act, the FLSA was a relatively minor player up until at least the 1980's.
The genesis for the Equal Pay Act arose when women entered the work force in greater numbers during the war years. As early as 1945, "The Women's Equal Pay Act of 1945," was introduced. Subsequent versions were introduced regularly but never gained traction.
In 1962, like the years before when the legislation was introduced, it was not "equal pay for equal work," but "equal pay for comparable worth," a much broader concept that would be fought again later.
The comparable worth standard was strongly backed by the Kennedy administration and actually passed out of the House Committee. But on the floor, Representative Katharine St. George, (R-NY) offered an amendment defining equal pay act claims as those "for equal work on jobs, the performance of which requires equal skills." The Senate concurred with the St. George amendment, but the bill failed to come out of conference and so it was not finally adopted until the next Congress.
This time, the bill was introduced with the St. George amendment, dealing with the specific (and much narrower) situation where employers would hire men and women for the same position, but relying on societal and market norms, pay women less.
The bill was signed by President Kennedy, 50 years ago today. The current version can be found here, The Equal Pay Act of 1963 (EPA).
One procedural aspect of the EPA was that it was drafted as an amendment to the FLSA, and in its early years contained the same white collar exemptions, a limitation not removed until 1972.
The EPA was a limited piece of legislation and was quickly overshadowed by the much broader Civil Rights Act of 1964, passed one year later.
But if nothing else it marked a major shift in Congress' willingness to enter the relationship between an employer and their employees. My personal view is that employment law as a discipline, really begins with the passage of the CRA.
But if the EPA was not the baby that started employment law, it was at least the twinkle in Congress' collective eye.
Sunday, June 09, 2013
50 Years Ago ...
by Michael Fox
In the summer of 1963, the summer between the 7th and 8th grade for me, my main concern was playing first base for Tapp's Pony League baseball team. (It was Tapp's the furniture store, not the funeral home, although I doubt that many in the small town new, or for that matter cared.) In other parts of the country, there were much more significant matters as the civil rights movement which had been building since the mid-1950's was beginning yet another significant and violent summer.
What I would do for a living was probably the furthest thing from my mind, but if I had been asked, one thing that I could not have answered is that I would be a lawyer specializing in employment law. That job didn't yet exist.
I am certainly not the first person who has ended up spending a lifetime doing something that did not even exist when they were born. But I don't think when I exaggerate the role employment law has had not only on me, but on our whole society.
For the last 10, now almost 11 years I have been making these notes, I have focused on current developments in the world of work. But it seems like a good time to look backwards and reflect on just how far we have come in the last 50 years.
Although the civil rights movement is focused on the struggle and treatment of black Americans, the first tentative step toward this new discipline was focused on a different group and one particular problem. More about that tomorrow.
Wednesday, May 29, 2013
It's Not Your Father's ABA Any More
by Michael Fox
According to my membership card, I first joined the American Bar Association in 1976. I was a first year associate at one of the large firms in Houston. A lot has changed about the practice of law since then. And like every other facet of life, not only is more change ensured, but the pace of change seems almost certain to increase as well.
I know I would have been shocked if one of the articles in the ABA Journal of those early years, had been this one, Former SEC lawyer uses crowdfunding to bring whistleblower actions. First, neither me, nor I daresay anyone else, would have known what either crowdfunding or whistleblower meant.
For those who have checked in on this spot over the last decade, you know that one trend I noted early in the days of this blog and have been following is the possibility of a cause of action for bullying. I have gone from disbelief that it could ever happen, to now being resigned to the inevitability.
It is only at the inception, but another trend I have begun to notice is the one I wrote about just one month ago, A Ground Floor Opportunity? Litigation Finance. Ted Siedle, the ex-SEC lawyer featured in the above article is taking a slight variant of the same sort of approach. In his case, seeking public financing to fund investigations that could lead to SEC awards under its whistleblower program.
In the early years, an article in The Lawyer's Magazine, on raising money to initiate more litigation would more likely have talked about barratry, or some other pejorative term, rather than innovation.
But of course that was when lawyering was a profession, not a business.
Bob Dylan nailed it:
Come writers and critics
Who prophesize with your pen
Keep your eyes wide
The chance won't come again
Don't speak too soon
For the wheel's still in spin
And there's no tellin' who
That it's namin'
For the loser now
Will be later to win
For the times they, they are a-changin'
Tuesday, May 21, 2013
Yes Virginia, the Supreme Court Does Matter - A Cat's Paw in the 5th Circuit
by Michael Fox
Although as an object fact we know that it is important when the Supreme Court issues a decision, see my discussion just above about the importance of a SOX case that will be decided next term, but it never hurts to be reminded.
That was just what happened when I read the 5th Circuit's decision in Haire v. Board of Supervisors of LSU (5th Cir. 5.21.13) which reversed a grant of summary judgment. Although that is still rare enough in the 5th Circuit to warrant a second look, what prompted this post was the difference that Staub v. Proctor, decided just over 2 years ago by the Supreme Court, made. (See With a Friend Like Justice Scalia ... Cat's Paw Decision Not Very Employer Friendly.)
Although the result might have been the same regardless of Staub, that's not what it sounds like. The case involved two LSU police officers vying for the Chief's job. The male not only got the interim position, but also the ear of the Chancellor. Even though the Chancellor made the decision to select him, not Ms. Haire, the actions of the interim male Chief, were what made the difference, at least according to Judge Jolly who wrote for the majority.
Sarbanes Oxley in the Supreme Court Dock
by Michael Fox
And on the Supreme Court docket for next term after the Court's grant of certiorai of a 1st Circuit decision which applied a narrow definition to the coverage of the first major financial regulatory act. Lawson v. FMR, LLC. (1st Cir. 2.3.12) . The case's page on Scotus blog is here.
The dispute involves the basic question of what employees are covered by SOX. The Court highlighted the disputed language:
Whistleblower protection for employees of publicly traded companies. — No company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. § 781), or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. § 78o(d)), or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee —
The parties presented two differing arguments for the meaning: (1) FMR argued only employees of publicly held companies are covered, and the highlighted language means that they are protected against actions from any of the highlighted individuals; (2) the individuals who worked for private companies that contract to act as advisers and managers to publicly held companies, argue that coverage extends not only to employees of publicly held companies, but to the "employees those public companies' officers, employees, contractors, subcontractors, or agent." The First Circuit in a 2-1 decision chose the first, more narrow option.
The scope of the two is dramatically different. Hopefully someone with access to a lot of data will tell us how different, but I would bet that it would if the Supreme Court adopts the broader reading at least 10 times more employees will be covered, and that guess could be off by magnitudes of tens or even hundreds.
The Administrative Review Board, the top administrative agency to rule, has taken the broader view of coverage. Spinner v. David Landau and Associates, LLC
A narrow reading would normally be subject to congressional change, but given the current state of affairs in Congress, it is highly unlikely that any such change would happen any time soon. (Although I will admit strange things do happen to move legislation at times.)
But as of today, the Supreme Court's docket for next term got a lot more important for employment lawyers.
Tuesday, May 07, 2013
Another Bad Day in the DC Circuit for the NLRB
by Michael Fox
Today, the D.C. Circuit struck down the NLRB's rule which required all employers over which it had jurisdiction to post a notice advising employees of their rights under the NLRA. National Association of Manufacturers v. NLRB (D.C. Cir. 5.7.13). The majority opinion relied primarily on Section 8(c), the so called "free speech" provision which allows employers to advise employees of their view on unions as long as it is done in a non-coercive manner.
It was a unanimous decision, with two judges concurring only to point out that in their view there was yet another independent basis to strike the rule down.
And with the majority opinion quoting opinions authored by Chief Justice Roberts and Justice Scalia (and referring to a Justice Thomas concurrence), it is clear that the Court was writing not only for today, but for the anticipated appeal.
In the more than 35 years I have been practicing, I can not remember a time when an agency that was involved in regulating the workplace has been in such disarray. It is hard to see a path to normalcy, and sometimes hard to remember even what that is when speaking of the Board.
Whether in the long term that is a good or bad thing is not yet clear; but that it is taking us to uncharted waters is a certainty.
Thursday, May 02, 2013
The Next Protected Class - Ex-cons
by Michael Fox
The EEOC last year issued some updated guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII. It laid out a blue print for how to plead a case under Title VII using the disparate impact theory of discrimination. Although not as common as disparate treatment cases, disparate impact cases tend to have much broader application because one of the requirements is a business practice that is applied uniformly with a disparate impact on a protected category.
Waldon v. Cincinnati Public Schools (S.D. Ohio, 4.24.13) may not be the first case, but it is the first one I have seen where a plaintiff has followed the EEOC's invitation and at least gotten through an initial motion to dismiss.
As on all employment law issues that arise in Ohio, Jon Hyman has a good look at the case here, focusing on the dilemma where an employer has a federal mandate and state statute (in this case H.B. 190) that appear to conflict.
His prediction (or at least hope) is that following state law will meet the exculpatory requirement of business necessity. Maybe Waldon will give us the answer as it progresses, but it is clear that until that issue is definitively resolved there are going to be a number of employers facing tough choices.
But there are many employers who may find themselves having to defend similar actions without even the argument that they are protected by a need to comply with state law. Projecting hot areas of litigation is risky business, but if I had to bet, this is one area I would certainly be looking at.
Monday, April 22, 2013