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
A Ground Floor Opportunity? Litigation Finance
by Michael Fox
I really have not had much chance to give the area of third party litigation financing a lot of thought, but my initial instincts are that while it may be good for lawyers, it seems unlikely to be good for clients. Maybe there is a silver lining somewhere, there often is, but at the moment it escapes me.
However, this article describing the types of folks and money being put in litigation financing makes it clear to me that this is a phenomenon that will be with us at least until the money guys feel like they have given it a fair shot to see if it provides the returns they hope. Litigation Finance: The Next Hot Trend?
I have yet to see it in single plaintiff type employment cases, and except for the few large whistleblowing or qui tam cases, don't see it as likely. But large scale class and collective actions? That I see as a realistic likely place for the world of workplace law and third party litigation financing to intersect.
Wednesday, April 17, 2013
Talking Money at Work
by Michael Fox
Today's Wall Street Journal discusses workers willingness to talk with their peers about what they are being paid as a generational change. Workers Share Their Salary Secrets. But as the article notes, in the past many employers prohibited such talk.
Even though such rules may have gone unchallenged, that is one practice that the NLRB has long held infringes an employee's rights under the NLRA. Given that many employers don't think about the NLRB or the NLRA because they don't have a union, my guess is quite a few Journal readers today are saying to themselves, "Wow, I didn't know we couldn't do that."
Before the latest procedural tangle that has ensnared the Board, was making a much greater effort to assert its role in the lives of non-union employers, and I don't see that effort subsiding in the future. Once (if?) we have a duly constituted Board, I am afraid that many non-union employers may be making similar statements more frequently.
Tuesday, April 16, 2013
Genesis Healthcare Corp. v. Symczyk — A Wasted Opportunity?
by Michael Fox
I had hoped, although without any real basis, that when the Supreme Court dealt with a collective action case this term, by deciding whether or not an offer that would completely resolve an individual plaintiff's claim prevented a collective action from going forward, that they might somehow wander into what seems to be an issue never subject to review, what is the standard for conditional certification of a collective action under 29 U.S.C. 216(b).
Instead, what we got, at least according to Justice Kagan's dissent, which had the odd character of being both casual and derisive of the reasoning of both the majority and the 3rd Circuit, was a decision that can be "relegated ... to the furthest reaches of your mind: The situation it addresses should never again arise." Genesis Healthcare Corp. v. Symczyk (U.S. 4/16/13).
That holding was assuming, as it said the employee had conceded, the offer made her by the company, did moot her claim, then she had no right to proceed with her collective action on the part of others. Justice Kagan said making that concession was a mistake made by both the plaintiff and the 3rd Circuit, and was in fact something that should never happen again.
What would have made this a precedential case was addressed by Justice Thomas this way:
While the Courts of Appeals disagree whether an unaccepted offer that fully satisfies a plaintiff’s claim is sufficient to render the claim moot, we do not reach this question, or resolve the split, because the issue is not properly before us.
Given that, I think Justice Kagan is close to correct, this is a case that is the "most one-off of one-offs." And she makes a fairly decent argument, joined by the other three members of the liberal wing of the Court, that the answer to the question left open above would be, no.
One wild guess would be that Justice Kennedy was undecided on that issue, and so this was a way for the Court to punt, until he makes up his mind.
In the 5th Circuit, it does undermine the validity of Sandoz v. Cingular Wireless, LLC (5th Cir. 2008), which had undermined the defense strategy in this circuit. So it presents the opportunity to try it again, and see how the 5th Circuit comes out on the question left unanswered by today's decision.
But ultimately, we really are talking about a relatively small number of cases, when the big question is the standard to apply in conditional certification Is the "lenient standard" really the correct one?
It seems so wrong, that with little substance, plaintiffs can invoke the powers of the court to help them summon a group of fellow would be plaintiffs, who would never have brought a claim on their own. Then there is either a settlement or a costly course of discovery, after which if there is no settlement, often the court decertifies the class that it conditionally certified.
There was really no basis for the Supreme Court to have addressed that today, but the question remains.
Tuesday, April 09, 2013
Quorum, Heck a Fully Appointed NLRB?
by Michael Fox
Doubtful for awhile, but at least five nominees are now pending Senate action., with the announcement today of the appointment of two new members and the renomination of the current Chairman of the Board, Mark Pearce. President Obama Announces More Key Administration Posts.
Chairman Pearce is currently the only Board member who has been confirmed by the Senate. The two members of the Board serving under challenged recess appointments, Sharon Block and Richard Griffin, were earlier re-submitted to the Senate for confirmation.
It will be interesting to see how this plays out as the longer the Board continues without a confirmed quorum, the more uncertainty in labor relations is being sown.
Wednesday, April 03, 2013
And lawyers wonder why ...
by Michael Fox
Clients might wonder about our priorities.
Mobile devices such as iPads are becoming an essential part of the job for many attorneys. "The fact that you can do so much work today on a small iPad that used to require a heavy, bulky laptop a few years ago is a tremendous leap forward in productivity," said Brett Burney of Burney Consultants. Mobile devices can help attorneys in several ways, such as by allowing them to track billable hours, work while traveling and stay in touch with clients. (emphasis added)
Actually, this is not really something that can be blamed on lawyers, as this is the PLI Smart Brief synopsis of a story, The Mobile Lawyer
, in the ABA Journal.
But, perhaps the fact that someone summarizing what they thought would be most important to lawyers who might be reading it, chose to put tracking billable hours first, tells us something as well.
Wednesday, March 20, 2013
Bullying and My Predictive Abilities — New York at Risk
by Michael Fox
If there is anyone who started with me when I made my first post in July, 2002 you will know that one topic that has come up repeatedly is my watch on the movement to have some state enact an anti-bullying law. It is much easier now than in the early days, because of Professor David Yamada's Minding the Workplace Blog, which covers those developments regularly.
In addition to being a tenured professor and Director of the New Workplace Institute at Suffolk University School of Law in Boston, he is also the author of the model Healthy Workplace Act, which has been the basis for most of the bills which have been introduced in various legislatures (23 states according to the Healthy Workplace Campaign website).
The first was just 10 years ago. Already in 2013, there have been eight states where some version has been introduced. Professor Yamada has an update in this post, Healthy Workplace Bill: March 2013 update.
In that article David notes that he and I have had a cordial disagreement over the years over the need for this legislation, as he also notes my recent sigh that I was becoming resigned to some state adopting such a cause of action much quicker than I would have ever thought when I first posted on the topic in January 2003.
Hopefully, that prediction will turn out as accurate as my March Madness brackets do, the latest versions of which are less than 72 hours from demolishment.
But, if I were to go even further out on a limb and predict which state, New York would not be a bad prediction. Why? Well because on May 12, 2010, the New York Senate became the first house of any state legislative body to pass anti-bullying legislation which would create a private cause of action. Anti-Bullying Legislation Passes NY Senate. The bill did not pass the Assembly and so died at the end of the legislative session.
However, new legislative session and in the 150 member Assembly, AB 4965 was introduced on February 13th, with 74 sponsors. (Do the math, it is not pretty for opponents.) The companion bill S3863 was introduced in the Senate on February 25.
If you happen to live or do business in New York, you might check out some of the reasons why I think this legislation is so dangerous, see Bullying As a Cause of Action — One Large Step Closer.
And if you agree, please send a copy to your Senator or Assemblyman.