Thursday, December 13, 2007

Supreme Court Update

The Supreme Court denied cert. the other day in Bonilla v. Baker Concrete Construction, Inc., 487 F.3d 1340 (11th Cir. 2007), cert. denied, 2007 U.S. LEXIS 13052 (U.S., Dec. 10, 2007). Bonilla is a FLSA case, involving whether construction workers were entitled to compensation for travel time on the defendant-employer's buses between the Atlanta airport security checkpoint and the actual construction site. The workers sought, under the FLSA, overtime for such travel both before and after their work at the construction site. Judge Kravitch, writing for the panel (Judge Black concurred in the result), found that the travel time was not compensable and that it was encompassed by the statutory exception of Section 254(a) of the FLSA. The court accorded Skidmore deference to DOL interpretive statements on the subject, and the court found that the circuits agreed with its interpretation, including the Fourth Circuit in Ralph v. Tidewater Construction Corp., 361 F.2d 806 (4th Cir. 1966), a case in which it held that time that employees spent traveling on an employer's boat to a construction site was not compensable. The Supreme Court's IBP decision was distinguishable because the time that the employees spent going through mandatory security screening was not "integral and indispensable" to a principal activity.

Newport News, VA. v. Sciolino, 480 F.3d 642 (4th Cir. 2007), cert. denied, 2007 U.S. LEXIS 13055 (U.S., Dec. 10, 2007). The Court denied cert. in a case involving a municipal police officer who sued under Section 1983, contending that he was entitled to a name-clearing hearing because the city had placed false information in his personnel file which could damage his good name. The opinions of the majority and the dissent in this case appeared to have acceptance of cert. written all over it. Judge Motz, writing for herself and Judge Gregory, forged a "likely to be disseminated" test as the linchpin for determining whether the public employee was entitled to a name-clearing hearing. Judge Wilkinson wrote an eloquent dissent. Interestingly, civility between chambers in Richmond seemed to collapse over this case. In a court known for its gentility, comments by Judge Motz regarding Judge Wilkinson sounded more like a debate between Rudy Giuliani and Ed Koch rather than the dialogue expected in the Fourth Circuit. In any event, the Supreme Court chose not to accept this case, and, for now, Judge Motz' approach to public sector "defamation" cases is the law of the Fourth Circuit.

14 Penn Plaza LLC v. Pyett, 498 F.3d 88 (2d. Cir. 2007), cert. filed, No. 07-581. A petition for cert. was filed, presenting the question whether an arbitration clause in a collective bargaining agreement can waive union members' right to a judicial forum for their statutory discrimination claims. The case presents, head on, whether Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), remains good law.

John Carlo Inc. v. Chao, 234 Fed. Appx. 902 (11th Cir. 2007), cert. filed, No. 07-606. The cert. petition filed in this case presents in an OSHA case the "cat's paw" issue that the court had accepted cert. on last term in BCI Coca-Cola [cite], only to have it settle before oral argument. In the John Carlo case, the Commission adopted the decision of an ALJ that imputed to the employer the actual knowledge of willfulness of a project superintendent and a foreman to the employer.

Sher v. Dep't of Veteran's Affairs, 488 F.3d 489 (1st Cir. 2007), cert. filed, No. 07-595. This petition caught my eye because Samuel Estreicher is on the cert. petition. Here a federal government employee who was disciplined for failure to cooperate when he did not answer questions during an interview regarding an allegation that he had accepted free drug samples from a pharmaceutical company, a refusal to answer even though he had been granted use immunity. The petition contends that an employee may not be disciplined for a good faith invocation of his Fifth Amendment privilege against self-incrimination.

Federal Legislative Update

Arbitration Fairness Act (S.1782)

The Senate Judiciary Committee's Civil and Constitutional Rights subcommittee held a hearing on S.1782 on Wednesday, December 12. The text of the bill can be found at

Revision to Mandatory Airline Pilot Retirement (H.R. 4343)

The House of Representatives on Tuesday, December 11, passed an amendment increasing the mandatory retirement age to 65. The text of the Fair Treatment for Experienced Pilots Act can be found at

English-Only (H.R. 3093)

The appropriation bill contains, in Section 527, for the FBI, NASA, and DOJ contains an English-only provision. The text of the bill can be found at The bill provides that funds made available by the Act may not be used by, or on behalf of, the EEOC in an action against an entity based on their requirement that an employee only speak English at work.

False Claims Act Update

Increasingly, there has been substantial FCA litigation involving off-label marketing of drugs. To access an interesting thirty-minute speech by a defense lawyer on the subject, Paul E. Kalb of Sidley Austin, go to

Form I-9

Be certain to remind your clients and your firm administrators that effective December 26, employers must begin to use the revised form I-9. For more information on the new I-9, see;;; .

Domestic Abuse Leave

Increasingly, state legislatures are enacting leave laws that permit employees who have been victims of domestic abuse or who need to care for someone in their household who has been a victim of domestic abuse to take leave for said purpose. Recently, Florida enacted such a statute which applies to employers of fifty or more employees, and took effect last July. The statute is available at The Florida statute requires that employees be granted three days leave to care for anyone in their household who is a victim of domestic abuse, including the employee, a child, a relative or a friend. The statute does not mandate that the leave be paid leave. And, the statute prohibits the discrimination or retaliation against an employee for exercising their rights under the new statute. See also Deborah Widiss, "Domestic Violence and the Workplace," Workplace Prof Blog, Nov. 11, 2007, available at

Intersectional Discrimination

Intersectional claims have been brought on behalf of African-American females typically. See Jeffries v. Harris County, 615 F.2d 1025, 1032-33 (2d Cir. 1980) (The Court of Appeals said “discrimination against black females can exist even in the absence of discrimination against black men or white women.”); Smith v. AVSC, 148 F. Supp. 2d 302 (S.D.N.Y. 2001) (Sex discrimination plus additional characteristic); Lam v. Univ. of Haw., 40 F.3d 1551, 1562 (9th Cir. 1994) (Court stated: “the attempt to bisect a person’s identity at the intersection of race and gender often distorts or ignores the particular nature of their experiences.”). A recent article entitled “The Most Endangered Title VII Plaintiff?: African American Males and the Intersectionality Claims” at, provides and overview of the development of the intersectional claim. See also, Virginia W. Wei, “Asian Women and Employment Discrimination: Using Intersectionality Theory to Address Title VII Claims Based on Combined Factors of Race, Gender and National Origin,” 37 B.C. L. Rev. 771 (1996); Sabina Crocette, “Considering Hybrid Sex and Age Discrimination Claims by Women,” 28 Golden Gate U. L. Rev. 115 (1998).

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