Thursday, December 27, 2007


ADEA Disparate Impact - Burden of Persuasion on RFOA

The Solicitor General filed an invite-brief with the Court on December 21, 2007 (available at in Meacham v. Knolls Atomic Power Lab., No. 06-1505, 2007 U.S. LEXIS 10368 (U.S., Oct. 1, 2007); 461 F.3d 134 (2d Cir. 2006), recommending that the Court grant cert., limited to the issue of which party has the burden of persuasion in an ADEA disparate impact case to establish "reasonable factor other than age." The government's brief argues, in contrast to the Second Circuit's decision, that the burden should be upon the employer. The government's brief argues that the Court should not accept cert. on the second issue presented by the plaintiffs' petition which is whether an employer's practice of conferring broad, discretionary authority upon individual managers to decide which employees to lay off during a reduction in force constitutes a "reasonable factor other than age."

If the Court accepts cert. in Meacham, this will be its second visit to the Supreme Court. When the Court issued its decision in Smith v. City of Jackson, 544 U.S. 228 (2005), holding that disparate impact claims are cognizable under the ADEA, the Court granted the petition for cert. in Meacham I (381 F.3d 61) and remanded it for reconsideration in light of Smith. 554 U.S. 957 (2005).

On remand, the Second Circuit held that the employee had the burden of persuasion with respect to the "reasonableness" of the employer's proffered business justification under the ADEA disparate-impact framework. This holding was in agreement with the Tenth Circuit's opinion in Pippen v. Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1200 (10th Cir. 2006). The Second Circuit also found that employment practices based on discretionary decisionmaking are generally immune from challenge under the ADEA, stating: "Any system that makes employment decisions in part on such subjective grounds as flexibility and criticality may result in outcomes that disproportionately impact older workers; but at least to the extent that the decisions are made by managers who are in day-to-day supervisory relationships with their employees, such a system advances business objectives that will usually be reasonable."

Judge Pooler dissented, holding that the RFOA creates an affirmative defense upon which the defendant bears the burden of persuasion.

Speech Or Debate Clause

The Justice Department has filed a petition for cert. in United States v. Rayburn House Office Building, No.07-816, a case arising out of the investigation and prosecution of Representative William J. Jefferson of "iced money" fame (available at The petition raises the following question: "Whether the Speech or Debate Clause provides a non-disclosure privilege that bars Executive Branch Agents from executing a judicially issued warrant in a Member's office to search for non-legislative records of criminal activity." The District of Columbia Circuit, in its opinion in this matter, United States v. Rayburn House Office Building, 497 F.3d 654 (D.C. Cir. 2007), held that the Speech or Debate Clause includes an "absolute" "non-disclosure privilege." The government's petition argues that that holding is fundamentally incorrect, arguing that the Clause does not confer a confidentiality privilege, but rather its core protection exists for public acts, such as votes and floor statements, and applies without regard to whether a Member has attempted to preserve confidentiality.

Proximate Cause Jury Instructions

In a little noticed concurrence by Justice Ginsburg last term in Norfolk Southern Ry. v. Sorrell, 127 S. Ct. 799 (U.S. 2007), she, like so many other commentators have over the years, had a harsh assessment of the trial court's use of a "proximate cause" jury instruction. She said that the term "proximate cause" ought not be used in jury instructions as it is "confounding to jurists, it is even more bewildering to jurors". Norfolk Southern, 127 S.Ct. at 814.

Summary Judgment Constitutional

Recently, the Plaintiffs' Bar has been enamored with a law review written by Professor Suja Thomas of the University of Cincinnati in which the Professor argues that summary judgment proceedings are an unconstitutional deprivation of an individual's right to jury trial. Suja A. Thomas, Why Summary Judgment Is Unconstitutional, 93 Va. L. Rev. 139 (2007). In a little noticed footnote authored by Justice Ginsburg, writing for the six justice majority in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S.Ct. 2499 (U.S. 2007), she had the following to say on the subject: "In numerous contexts, gatekeeping judicial determinations prevent submission of claims to a jury's judgment without violating the Seventh Amendment." Tellabs, 127 S.Ct. at 2512, n.8.

Upcoming Oral Arguments

On February 19th, the Court will hear argument in Gomez-Perez v. Potter, 06-1321, a federal sector ADEA case involving whether or not federal employees may pursue retaliation claims under that statute. Gomez-Perez v. Potter, 476 F.3d 54 (1st Cir. 2007) cert. granted, 2007 U.S. LEXIS 9085. The First Circuit held that the Postal Service and the Postmaster General had waived sovereign immunity with respect to ADEA suits, but further held that Section 15 of the ADEA, 29 U.S.C. §633a, does not provide a cause of action for retaliation by federal employers.

On February 20th, the Court will hear argument in CBOCS West v. Humphries, No. 06-1431, a section 1981 case which presents the issue whether claims of retaliation are cognizable under that statute. CBOCS West v. Humphries, 474 F.3d 387 (7th Cir. 2007) cert. granted, 2007 U.S. LEXIS 9079. The Seventh Circuit, 2-1 (Chief Judge Easterbrook dissenting), held that Section 1981 protects against retaliation and thus retaliation claims are cognizable under Section 1981. The panel held that its earlier decision in Hart v. Transit Management of Racine, Inc., 426 F.3d 863, 866 (7th Cir. 2005) is no longer good law in light of the Supreme Court’s decision in Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005).

On February 26th, the Court will hear arguments in Allison Engine Co. v. United States ex rel. Saunders, No. 07-214, a case that presents the so-called presentment issue in a False Claims Act case. In United States ex rel. Saunders v. Allison Engine Co., 471 F.3d 610 (6th Cir. 2007). the Sixth Circuit held that presentment of a false or fraudulent claim to the government is required under one subsection of the False Claims Act (31 U.S.C. SEC 3729(a)(1)), but it is not a prerequisite for liability under subsections (a)(2) and (a)(3) thereof. The D.C. Circuit has disagreed, reading the presentment requirement into the entire section. See United States ex rel. Totten v. Bombardier Corp., 380 F.3d 488 (D.C. Cir. 2004)(Roberts, J; now Roberts, C.J.).

On February 27th, the Court hears argument in Exxon Shipping Co. v. Baker, No. 07-219, a case involving claims for punitive damages arising out of the Exxon Valdez oil spill.

NLRB Ruling on Employee's Use of E-mail for Union Solicitation

On December 16, 2007, the NLRB issued a 3-2 decision in Guard Publishing Co. d/b/a Register Guard and Eugene Newspaper Guild, CWA Local 37194, 36-CA-8743-1, 36-CA-8849-1, 36-CA-8789-1, and 36-CA-8842-1 (available at The three member majority held that an employer may prohibit employees from using its e-mail to solicit on behalf of a union so long as the employer enforces its non-job-related solicitations policy in a non-discriminatory manner. With respect to the employer's alleged discriminatory enforcement of the e-mail policy, the majority modified the NLRB's approach in discriminatory enforcement cases and announced a new, more limited, conception of "discrimination" relying upon two decisions of the Seventh Circuit, that is, Fleming Co. v. NLRB, 349 F.3d 968 (7th Cir. 2003), denying enf. to 336 NLRB 192 (2001) and Guardian Industries Cop. v. NLRB, 49 F.3d 317 (7th Cir. 1995), denying enf. to 313 NLRB 1275 (1994). The Board majority held that "unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status."

FLSA Donning and Doffing Police Officers Uniforms and Equipment

The California Federal District Courts are battling over the question whether police officers are entitled to compensation under the FLSA for time spent donning and doffing their uniforms and equipment. Judge Breyer, in Martin v. City of Richmond, 2007 WL 2317590, 2007 U.S. Dist. LEXIS 61442 (N.D. Cal., Aug. 10, 2007), denied any compensation, holding that a "police officer's uniform, in and of itself, does not assist the officer in performing his duties". Judge Sabraw, in Abbey v. City of San Diego, 2007 WL 4146696 (S.D. Cal., Nov. 9, 2007), stated that "The relevant inquiry is not whether the uniform itself or the safety gear itself is indispensable to the job - they most certainly are - but rather, the relevant inquiry is whether the nature of the work requires the donning and doffing process to be done on the employer's premises." And, finally, Judge Patel, in Lemmon v. City of San Leandro, 2007 U.S. Dist. LEXIS 902 (N.D. Cal., Dec. 7, 2007), held that officers were entitled to compensation.

These police officer donning and doffing opinions are a continuation of the debate that filtered up to the Supreme Court two terms ago in IBP, Inc. v. Alvarez, 546 U.S. 21 (2005), 126 S. Ct. 514, 163 L. Ed. 2d 288, 2005 U.S. LEXIS 8373 (2005), aff’g, Alvarez v. IBP, Inc., 339 F.3d 894 (9th Cir. 2003), and aff’g in part, rev’g in part, remanding, Tum v. Barber Foods, Inc., d/b/a Barber Foods, 331 F.3d 1 (1st Cir. 2003).

Question Presented: Whether time spent walking between the location where protective clothing is donned and the actual work station, and time spent waiting at safety equipment distribution stations are compensable under Section 4(a) of the Portal-to-Portal Act of 1947 as an exception to Section 3 of the Fair Labor Standards Act of 1938.

In a series of Supreme Court decisions prior to 1947, the Court broadly defined the term “work” under the Fair Labor Standards Act (FLSA). In an effort to more clearly identify what is, and is not, compensable work under the FLSA, the Congress in 1947 passed the Portal-to-Portal Act. That Act exempts from FLSA coverage two categories of activities performed before or after an employee’s principal activities, unless such activities are integral and indispensable to those principal activities. The two exempted categories of activities are (1) time spent by an employee “walking, riding, traveling to and from the actual place of performance of the principal activity or activities” of the employee’s job; and (2) time spent by the employee on activities performed before or after the principal activities in a work day. Such activities are often called “preliminary” and “postliminary”. In addition, the Act provides that some activities that might otherwise be considered to be compensable work need not be compensated if the time spent on them is de minimis.

In 1956, the Supreme Court issued an opinion in Steiner v. Mitchell, 350 U.S. 247 (1956), in which it held that the specific acts of putting on and taking off mandatory protective clothing were integral and indispensable to the employee’s principal activities, and hence compensable. Id. at 256.

Against this backdrop these two cases arose, Alvarez v. IBP, Inc. and Tum v. Barber Foods, Inc., one a slaughterhouse and the other a poultry plant. In the Alvarez case, the meat processing plant, in addition to standard safety equipment like hardhats, hairnets, earplugs, and gloves, some of the employees wore special protective equipment, including chain-link metal aprons and plexiglass armguards. IBP required that the equipment be stored in company locker rooms, where the gear was typically donned. It paid employees from the first piece of meat handled to the last, as well as four minutes of clothes-changing time.

In the First Circuit case, Tum v. Barber Foods, the employees at a poultry processing plant were required to don and doff mandatory safety gear before and after their shifts. Barber Foods only paid employees by the hour from the time they punched in to the time they punched out, and the employees were not compensated for time spent walking to work stations after donning protective gear, nor were thy compensated for time spent walking from work stations to changing areas.

The Supreme Court had to determine in these two cases (1) whether walking time by employees both after donning and prior to doffing unique protective gear was compensable time and (2) whether time spent waiting to don and doff such gear was compensable time.

Relying upon the “continuous workday” regulations of the U.S. Department of Labor, the unanimous Court held that the workday for which a non-exempt employee must be compensated begins the moment an employee performs any task or activity that is “integral and indispensable” to a “principal activity” of that employee. Applying that reasoning to the specifics of these cases, the Court found that the time spent walking to and from the production area after donning integral and indispensable protective gear, the time spent waiting to doff such gear, and the time actually spent doffing such gear, all constituted compensable work under the FLSA. The Court stated: “[W]e hold that any activity that is ‘integral and indispensable’ to a ‘principal activity’ is itself a ‘principal activity’ under § 4(a) Portal-to-Portal Act. Moreover, during a continuous workday, any walking time that occurs after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity is excluded from the scope of that provision, and as a result is covered by the FLSA.”

The Court ruled that time spent waiting to don gear, even if that gear is unique, integral, and indispensable, does not count as a compensable time under the FLSA unless the employer required its employees to report at a particular time and because of that requirement, the employees had to wait to don their gear.

District of Columbia Non-Union School Employees To Be At-Will

Legislation has been introduced in the City Council at the request of Mayor Fenty entitled the "Public Education Personnel Reform Amendment Act of 2007" (available at The legislation, in its simplest terms would convert all appointments to positions within the District of Columbia public schools to at-will appointments with the sole exceptions of those employees "appointed to occupy or currently occupying a position included in a recognized collective bargaining unit and those who were appointed before January 1, 1980 . . . " The proposed legislation encompasses, among others, individuals employed at the D.C. public school Central Office, and specifically provides that any such employee "who is terminated as a result of this section shall be separated without competition, assignment rights, or retreat rights." Such employees shall be given at least 15 days notice of proposed separation, shall not be entitled to any internal or administrative review, but shall be entitled to severance pay so long as the separation is for non-disciplinary reasons. The severance pay would be computed in accordance with the provisions of D.C. Code Section 1-624.09 which is referenced in the bill only as "section 2409". These are the reductions-in-force severance pay provisions found under Title I, Government Organization.

Do State Trade Secrets Acts Preempt Common Law Claims?

The recent opinion of Judge Golden in Cenveo Corp. v. Slater, 2007 U.S. Dist. LEXIS 9966 (E.D. Pa., Feb.13, 2007), underscored an ongoing debate in the federal and state courts as to whether a state trade secrets act preempts common law claims. Judge Golden in Cenveo Corp., a case involving the Pennsylvania Trade Secrets Act (PTSA), reviewed the authorities and the arguments, and concluded that it would be inappropriate to grant a motion to dismiss on the issue, and that he would reconsider the issue on a fully developed summary judgment record. Judge Golden declined to join those courts that have held that the state legislatures, in enacting trade secrets legislation, intended to remove liability for any theft of non-trade secrets. Thus, if the proof establishes in a given case that the information that has been allegedly misappropriated constitutes a trade secret, then, it would appear, most courts would hold that common law claims like conversion, would be preempted. In contrast, if the facts established the theft of non-trade secrets, then the statutory claim under the state trade secrets act would not preempt a claim of conversion based upon the taking of information that, though not a trade secret, was nonetheless of value to the plaintiff. Judge Golden's opinion collects the authorities on this interesting issue.

Anonymous Bloggers

Before the Christmas break, we blogged about a recent Texas case involving whether or not the Court would compel the ISP to unmask an anonymous blogger. The Arizona Court of Appeals in Mobilisa Inc. v. John Doe 1, 2007 Ariz. App. LEXIS 225 (Ariz. Ct. App., Nov. 27, 2007), expanded the reasoning of the Delaware Supreme Court's decision in Doe v. Cahill, 884 A.2d 451 (Del. 2005), can set forth sufficient facts to survive a motion for summary judgment. The Arizona Court of Appeals decided to expand the Cahill two factor test to add a third factor, that is, a balancing of the relative interests of the parties. When the Court of Appeals considered this third factor, it found that the anonymous blogger's First Amendment rights should be protected by declining to issue an order to the ISP identifying the blogger. See also Konrad S. Lee, Hiding From The Boss Online: The Anti-Employer Blogger's Legal Quest For Anonymity, 23 Santa Clara Computer & High Tech. L. J. 135 (Nov. 2006).

Wage & Hour Collective and Class Actions

Because the FLSA only authorizes opt-in collective actions, and not Rule 23-type opt-out class actions, plaintiffs' lawyers in wage and hour litigation have adopted the tactic of filing an opt-in FLSA action and a companion Rule 23 class action for alleged state wage and hour violations. The federal courts, thus, have been called upon to determine whether they can certify both a federal FLSA collective action and also certify under Rule 23 state wage and hour claims, sometimes even state wage and hour claims based upon the laws of several states. Recently, the District of Columbia Circuit in Lindsay v. Gov't Employees Ins. Co., 448 F.3d 416 (D.C. Cir. 2006) reversed the trial court's denial of class certification of the state law claims, stating that it "did not view the difference between the opt-in procedure provided by section 216(b) for FLSA claims and the opt-out procedure for state law claims [under New York state law] provided by Rule 23 as fitting the 'exceptional circumstances/other compelling reasons' language" that would allow it to decline jurisdiction under the supplemental jurisdiction statute. See also Lehman v. Legg Mason, Inc., 2007 WL 2768519, 2007 U.S. Dist. LEXIS 69648 (M.D. Pa., Sept. 20, 2007)(court found that, in enacting the FLSA, Congress did not intend to limit the substantive remedies available under state law or their procedural mechanisms under which such remedies may be pursued); Iglesias-Mendoza v. LaBelle Farm. Inc., 239 F.R.D. 363 (S.D. N.Y. 2007)(same); Morton v. Valley Farm Transport, Inc., 2007 WL 1113999, 2007 U.S. Dist. LEXIS 31755 (N.D. Cal., Apr. 13, 2007)(same); Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474 (E.D. Cal. 2006)(same) and contra Evans v. Lowe's Home Centers, Inc., 2006 WL 1371073, 2006 U.S. Dist. LEXIS 32104 (M.D. Pa., May 18, 2006)(court refused to exercise supplemental jurisdiction over the state law claims and to certify a Rule 23 class).

Spoliation of Evidence - Sanctions

In Communications Center, Inc. v. Hewitt, 2005 U.S. Dist. LEXIS 10891 (E.D. Cal., Apr. 5, 2005), the Magistrate Judge recommended entry of default judgment on plaintiff's claims relating to misappropriation of trade secrets in a breach of fiduciary duty after the defendant ran a software scrubbing program called "Evidence Eliminator" despite a court order to produce mirror images of the hard drives. Recently, Judge Stohr in Ameriwood Industries, Inc. v. Lieberman, 2007 U.S. Dist. LEXIS 74886 (E.D. Mo., July 3, 2007), arrived at essentially the same result when the spoliating party used the software program called "Window Washer". Judge Stohr stated: "While the name sounds less reprehensible than the 'Evidence Eliminator' software used in Communications Center, the purpose is the same . . . [D]efendant's knew information on their computers was discoverable and they destroyed it. The discovery process cannot and will not function when a party exhibits such blatant disregard for basic tenets of the system."

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