Social Networking Sites: New Challenges for Employment Lawyers

Sorry to have been delinquent for two weeks, but other matters diverted my attention, and I simply couldn't find time to blog.

Baseball

"They both [statistics & bikinis] show a lot, but not everything." - Toby Harrah

Disparate Impact Case filed by Baltimore City

Back on January 23, 2008, we blogged about the recent lawsuit filed by Baltimore City which contends that the high incidence of mortgage foreclosures among African-Americans in Baltimore City is on account of racial discrimination. We wondered whether this litigation does not ignore the fact that it was, to some extent, the Clinton administration that "liberalized" qualification standards for mortgages to increase home ownership among African-Americans, and we suggested that that "liberalization" may, in part, have led to the so-called sub prime mortgage crisis. After being duly castigated by some of my liberal friends for having such heretical thoughts, I was heartened to read Robert Cox recent article entitled: "Politicians Created Today's Sub prime Mortgage Crises."

Social Networking Sites

The phenomena of social networking sites and similar interactive cyberspace creations increasingly presents fascinating challenges for employment lawyers and eventually the Judges. On Tuesday, February 12, 2008, there was an intriguing article by Sarah E. Needleman in the Wall Street Journal entitled: "Need a New Situation? Check the Internet: Recruiters and Job Seekers Find Each Other Through Facebook, 'Fan' pages, Videos."

At first blush, some of the issues would seem to be:

1. Is a recruitment ad, using Facebook, that targets exclusively "recent graduates and college seniors with majors in specific fields" potentially discriminatory on the basis of age?


2. After decades of assiduously sanitizing the job application process to assure that the employer doesn't know the applicants age or race, doesn't "beam me up, Scotty" take us on a complete about-face, and how do employers protect themselves from the obvious complaint that is to come, that this facilitates discrimination?


3. Assume that statistically a far great percentage of Caucasians job applicants have ready access to the internet, and are statistically more savvy on the net (remember these are merely assumptions - - I am not suggesting that they are necessarily accurate, much less am I suggesting that African-Americans are less intelligent than Caucasians), is reliance
   on these new online recruiting tools potentially subject to disparate impact attack as racially discriminatory?

There follows a list of citations to various articles about these new forms of recruitment.

Social Networking Sites Aren't Commonly Used to Dig Up Dirt, Elizabeth Saperstein, July 12, 2006. (http://www.ere.net/)

Social Networking Technology Boosts Job Recruiting, Frank Langfitt, November 22, 2006.

Cheezhead Blog, January 3, 2008.

Wall Street Journal Online, A Job Interview You Don’t Have to Show Up For, Anjali Athavaley, June, 20 2007.

JobSearchMarketing.com, Verizon steps it up with targeted email recruitment ad, November 16, 2008

Shaker Recruitment Advertising & Communications, last accessed February 14, 2008.

Accenture, last accessed February 14, 2008

Quill, Social Networking Sites, Khristopher J. Brooks, January/February 2008.

Collaborative Law

We have blogged on several occasions about collaborative law, suggesting that employment lawyers ought to consider the potential use of these techniques in resolution of employment disputes. Scott R. Peppet has a good article entitled: "The (New) Ethics of Collaborative Law" in Dispute Resolution Magazine, Volume 14 No. 2 (Winter 2008), the publication of the ABA's Section of Dispute Resolution.

Immigration - Spate of Recent Victories for Local Governments

According to my scorecard, it is now 3 - 1 in reported decisions, challenging state and local laws imposing penalties on employers who hire illegal immigrants. The plaintiffs won the first challenge, the Hazleton Case (Lozano v. City of Hazleton, 496 F. Supp. 2d 477) in Pennsylvania, and since then have lost three in a row. See Ariz. Contrs. Ass'n v. Candelaria, 2008 U.S. Dist. LEXIS 9362 (D. Ariz. February 7, 2008); Gray v. City of Valley Park, 2008 U.S. Dist. LEXIS 7238 (ED. Mo. January 31, 2008); Nat'l Coalition of Latino Clergy, Inc. v. Henry, 2007 U.S. Dist. LEXIS 91487 (ND. Okla. December 12, 2007).

Trivia

Like me, have you been staying awake nights, wondering who invented the game snooker? Well, I now know. Was it Andrew Mellon? No. Neville Chamberlain in 1875, while serving at a hill station in southern India, first thought of adding an extra colored (coloured for our British friends) ball to the billiards table, and thus snooker was invented. So, now we all know something nice to say about Mr. Appeasement.

Metadata: Some practical advice

Baseball

"I ain't ever had job. I just always played baseball." - Leroy Robert "Satchel" Paige

Hangman's Noose

As I mentioned on Friday, it seems like hardly a day goes by without some idiot insulting African-Americans with a display of a hangman's noose. The latest incident involves a "stupid little prank" that occurred at the construction site for the new baseball park in Washington, DC. See http://www.washingtonpost.com/wp-dyn/content/article/2008/01/25/AR2008012503068_pf.html
- and -
http://www.washingtonpost.com/wp-dyn/content/article/2008/01/24/AR2008012403173.html

DOL to Propose FMLA Regulatory Changes

Late last week, DOL officials reported that they have forwarded to OPM proposed new regulations that eventually will be published for public comment. Apparently, the proposals address, among other issues, the notice that employees generally would be required to provide to employers requesting a leave before actually taking the leave. Current regulations allow employees to take off for two days before even requesting FMLA leave. In addition, apparently the proposed regulations would permit employers to require health care providers to recertify annually that an employee has a serious health condition. Current regulations provide that healthcare providers can submit a multiyear certification of a serious health condition. As of the weekend, no one yet had an actual copy of the proposed regulations. Once we have them, we will comment further.

New Leave Law in Defense Authorization Act


The Defense Authorization Act provides that family members would be allowed to take up to six months of unpaid leave to care for wounded military personnel. The Act also would allow for employees to take up to twelve weeks of unpaid leave "for any qualifying exigency" related to a family member's call-up to active duty or deployment. See http://www.govtrack.us/congress/bill.xpd?bill=h110-4986.

The Power of One


In the last few weeks, there has been a hue and cry about the power of words alone to inspire change. Over the past few days, I have been reading a wonderful book published in 1941 by A.J. Cronin entitled The Keys of the Kingdom. Apparently within four months of the original publication, the book sold more copies than the publisher, a major publishing house, had sold since its foundation shortly after the turn of the century. I got interested in the author, and started to do a little research. One of his books, The Citadel, resulted in the establishment in the United Kingdom of the National Health Service. Wikipedia reports that "the popularity of his novels played a substantial role in the Labour Party's landslide 1945 victory." Having said that, I cannot recommend more highly the book that I am reading, The Keys of the Kingdom. Great read.

Corporate Social Responsibility


In the January / February 2008 issue Foreign Affairs, Klaus Schwab has an interesting article on CSR entitled "Global Corporate Citizenship: Working with Governments and Civil Society." Mr. Schwab is the Executive Chair of the World Economic Forum which just met Davos, Switzerland. See http://www.foreignaffairs.org/20080101faessay87108/klaus-schwab/global-corporate-citizenship.html.

Metadata

I thought that I would share with our readers, a very thorough analysis of the metadata problem that a colleague recently sent to me.

Starting with the facts in your email, it appears that you are interested in understanding the obligations of the producer and also the recipient of a document containing metadata that is exchanged during the negotiations (including grant requests and proposals) of a business transaction. With this in mind, my initial observation of your use of the term "metadata" is that you are concerned primarily with the feature in Microsoft's Word that is commonly known as "track changes," but should also include the data within the "properties" tab and "comments" of a document.

Reflecting first upon the recipients' obligations with respect to receiving a document that contains metadata available for review, currently I am not aware of any law that prohibits review of the metadata by the recipient. I am aware of a few state bars and an initial position paper from the ABA (that was later revised) that would suggest it is unethical for an attorney to review and/or "mine" for such metadata, in a business document, but the majority of the state bar associations would suggest that no ethical violation has occurred in such cases.

Since it is too difficult for a recipient to determine whether the "track changes" metadata was intentionally available for review, my opinion is that the recipient does not have either a legal or ethical obligation to refrain from reviewing the metadata available in these documents, nor does he or she have the responsibility of informing the producer of the availability of such data. I would add, however, that it has been a courtesy practice of mine to inform the producer in obvious cases that such metadata exists in their files.

From a producer's perspective, while from a practical and strategic perspective it may be devastating, I do not know of any law (other than the foregoing bar association opinions) that directly prohibits a producer from distributing documents with metadata. There may be, however, some ethical rules that may apply here, such as Rule 1.6 concerning the confidentiality of client information in those cases where the metadata contains client information. This rule along with the varying levels of knowledge among attorneys regarding metadata, and of the tools used to prevent the "leakage" of metadata, suggest that the vehicle that will be used in the near future is malpractice to establish a minimum standards on what steps should be taken by attorneys to mitigate the likelihood of distributing a document with metadata, which frankly is how these issues should be analyzed. I am certain that this standard will evolve in a manner similar to the standard used by attorneys in adopting the use of the internet, which was once feared for possibly disclosing confidential client information during the transmission of data and has now become commonly used by nearly all attorneys in their practice.

However, having said that, on a practical side, the easiest way to clean any of these files is to run them through one of the third party cleaners to remove any unwanted metadata and to "accept all" changes if track changes is not intended to be included, as well as checking the document for comments. These "scrubbers" are software programs that may be initiated either manually by a user or automatically by a system and it removes known metadata, such as the author, hyperlinks, track change information, comments etc. Most organizations will typically use these scrubbers to remove metadata that can be found in the "properties" tab of a document (and rely on the decision of the attorneys with respect to other forms of metadata such as comments and track changes), before transmitting a document to the other side.

While I do not endorse any scrubber product over any other, you may find that some work better than others in your environment, and they have different features that you may or may not find helpful. It is important to note, that while stripping down a document to the bare text will leave a document free of metadata, it will, in the most extensive examples of scrubbing, leave only raw text and thus, lose most, if not all of its formatting. Since we all need to have documents formatted in a coherent human readable form, there will always be a small amount of metadata that could be retrieved by someone, but the changes to a document that you refer to can be stripped out by the use of one of these scrubbers, and this combination of "accepting" all changes and using the software scrubber (to eliminate metadata stored in the properties field and, if selected, comments) can leave your formatting of the document untouched.

While the process you refer to of converting a document into a pdf file will remove most forms of metadata (except for track changes that have been left visible), the pdf produced by your method will create its own metadata viewable in the properties menu of the file. So in a situation that is highly sensitive, I might use this process and then run the pdf file through one of the scrubbers to eliminate the file property information. I agree that this process (as it does with discovery in litigation) results in a less efficient process when making revisions between parties during negotiations, and often frustrates business participants who want to make changes to the documents.

In the context of redaction, do not use any of the more advanced features of Adobe Acrobat like the redaction feature, because the redaction can be stripped out and then everything you redacted becomes visible. If trying to redact a document, I would use the NSA document and follow the directions on it for the best and wisest approach.

I hope I have clarified the issues for you, and while your colleagues had some valid suggestions, the answer to the metadata question is that it depends on the situation, the content of the metadata and what the desired result is to know which solution or combination of solutions is the best.

One note that might be of interest to you, is that the newest version of Microsoft Word (Word 2007) has included features that help to deal with the ever growing concern over metadata by including a stripping function that gets rid of the most common metadata attached to documents.

James v. Metro Government of Nashville

Someone asked if I would set out the citations that reflect the circuit split on this issue - the issue being whether the judge or the jury decides whether the facts support a claim that the retaliatory act could have deterred protected conduct. In our post of Friday, we provided the Fourth, Sixth and D.C. Circuit authorities on this issue.

The Fifth Circuit has held that judges, not juries determine whether the fact-bound Burlington Northern standard has been met. See DeHart v. Baker Hughes Oilfield Operations, Inc., 214 Fed. Appx. 437 (5th Cir. 2007). The Eleventh Circuit so held in Collins v. Board of Trustees of University of Alabama, 211 Fed. Appx. 848 (11th Cir. 2006). The Eighth Circuit goes with courts, not juries. See Higgins v. Gonzales, 2007 WL 817505 at *8-*9 (8th Cir., March 20, 2007). The Seventh Circuit in at least six cases since Burlington Northern has held that judges are to decide the question. See Roney v. Illinois Dept. of Transportation, 474 F.3d 455, 459 (7th Cir. 2007); Phelan v. Cook County, 463 F.3d 773, 781 n.3 (7th Cir. 2006); Szymanski v. County of Cook, 468 F.3d 1027, 1031 (7th Cir. 2006); Thomas v. Potter, 2002 Fed. Appx. 118 (7th Cir. 2006); Novak v. Nicholson, 2007 WL 1259054 at *5 (7th Cir., Apr. 12, 2007); Schmidt v. Canadian National Railway Corp., 2007 WL 755171 at *4 (7th Cir., Mar. 13, 2007).

In addition to the D.C. Circuit, three other circuits have held that juries, not judges, determine the question. The Third Circuit has so decided in at least three cases. See Hare v. Potter, 2007 WL 841031 at *11 (3d Cir., Mar. 21, 2007); Ridley v. Costco Wholesale Corp., 217 Fed. Appx. 130, 1325 (3d Cir. 2007); Moore v. City of Philadelphia, 461 F.3d 331, 347 (3d Cir. 2006). The Second Circuit has aligned itself in favor of juries. See Kessler v. Westchester County Department of Social Services, 461 F.3d 199, 209-10 (2d Cir. 2006); Wrobel v. County of Erie, 211 Fed. Appx. 71, 73 (2d Cir. 2007); Zelnik v. Fashion Institute of Technology, 464 F.3d 217, 227 (2d Cir. 2006). And, the Tenth Circuit has joined the Second, Third and District of Columbia Circuits in holding that the application of the Burlington Northern standard to the circumstances of a case is a matter for a jury. See Williams v. W.D. Sports, 2007 WL 2254940 at *10 (10th Cir., Aug. 7, 2007).

False Claims Act

On January 22, 2008, the U.S. Supreme Court denied cert in U.S. ex rel. Bly-Magee v. Premo, Case No. 05-55556 (9th Cir. Dec. 13, 2006). The Ninth Circuit's opinion is at 470 F.3d 914. In Bly-Magee, the Ninth Circuit ruled that non-federal reports, audits, and investigations qualify as a source of public disclosure under 31 U.S.C. section 3730(e)(4)(A). This represents yet one more split in the circuits, for the Third Circuit limits this provision to federal reports, audits, investigations. See U. S. ex rel. Dunleavy v. County of Delaware, 123 F.3d 734, 745 (3d Cir. 1997). The Eighth Circuit, on the other hand, agrees with this Ninth Circuit decision. See Hays v. Hoffman, 325 F.3d 982, 988 (8th Cir. 2003).

FLSA Settlements

If you settle an FLSA claim and have it supervised by the US Department of Labor, pursuant to 29 U.S.C. Section 216(c), the settling employee may end up signing off on a government form entitled WH-58 "Receipt for payment for lost or denied wages, employment benefits, or other compensation." In a recent opinion, the Ninth Circuit teaches us that the language contained in that form can either extinguish a claim or merely extinguish some portion of a claim.

In Dent v. Cox Communications Las Vegas, Inc., 502 F.3d 1141 (9th Cir. 2007), Mr. Dent signed a WH-58 which acknowledged receipt of payment of unpaid wages for the period beginning with the workweek ending May 4, 2002 through the workweek ending October 11, 2003. Thereafter Dent claimed unpaid wages for a time period prior to May 4, 2002. The district court dismissed his claim, accepting the employer's argument that the unpaid overtime wage claim had been settled in full. The Ninth Circuit reversed, finding that his claim was released only with regard to the time period specified in the WH-58.

Two New New Jersey Employment Statutes

New Jersey has amended its Law Against Discrimination and expanded it to require that employers reasonably accommodate sincerely held religious beliefs unless to do so would impose an undue burden. The statute now defines "undue hardship" as an accommodation requiring unreasonable expense or difficulty, unreasonable interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system or a violation of any provision of a bona fide collective bargaining agreement. Further, the statute states that, in determining whether an accommodation constitutes an undue hardship, the factors considered shall include:

• The identifiable cost of the accommodation, including the costs of loss of productivity and of retaining or hiring employees or transferring employees from one facility to another, in relation to the size and operating cost of the employer.


• The number of individuals who will need the particular accommodation for a sincerely held religious observance or practice.


• For an employer with multiple facilities, the degree to which the geographic separateness or administrative or fiscal relationship of the facilities will make the accommodation more difficult or expensive.

The other statute concerns employment protections for employees on military leave in time of war or emergency.

Insurance Coverages for Federal Employees

There was an interesting article in one of the newspapers in the last few days about insurance coverages provided to federal employees who might be sued, and presumably not otherwise protected by immunity doctrines. Wright & Company, a Virginia-based insurance company, writes coverages. The article indicated that it provides $200,000 for legal fees incurred in an administrative proceeding, an additional $100,000 in fees for criminal investigations, and up to $1,000,000 for damages incurred in civil litigation. See: http://www.wrightandco.com/wmspage.cfm?parm1=23.

Corporate Social Responsibility

The January 19, 2008 issue of The Economist has a special report on corporate social responsibility. Reprints of the report are available. See www.economist.com/rights. A list of sources can be found at www.economist.com/specialreports and an audio interview with the author can be found at www.economist.com/audio.

For those who are interested, there is an ABA corporate social responsibility committee. If you should be interested in joining, please let me know and I will forward your name to the committee chair.

Hangman's Nooses

In the past week we have observed first Kelly Tilghman making an utter fool of herself on the Golf Channel when she said that the way to defeat Tiger Woods was to take him out and lynch him. That merited only a two week suspension. Then to add fuel to the fire, Golfweek distributes this past week's issue with a cover image of a noose for an article about Ms. Tilghman's idiocy. That thankfully merited the discharge of Dave Seanor, the editor.

Some of the obvious questions raised by these two incidents, other than being dumbfounded that supposedly intelligent people still just don't get it, would be the following:

• How come it took two days to apologize? You would have thought that within seconds after Ms. Tilghman uttered her stupidity, that she or someone associated with the channel, would have realized that what she said was over the top, and an apology should have issued within moments after she said what she said. Makes you wonder whom, in addition to Ms. Tilghman, at the Golf Channel simply doesn't get it.


• Makes you also wonder what the hiring practices are at the Golf Channel. I would assume that if there were African-Americans on the production team, that one of them would have spoken up immediately and demanded that she apologize on the air. I sure would like to see the Golf Channel's hiring statistics.


• That takes me to Golfweek magazine, the cover page, I am told, was vetted by a committee. So, it isn't just Mr. Seanor who doesn't get it, there are many others at the magazine who are simply clueless or worse than that, closet racists who took pleasure in insulting millions of our citizens. So, one wonders why Mr. Seanor is the only person who was disciplined. Yes, "the buck stops here", and the boss takes the fall, but the others ought not to go scot free.


• Finally, the incident, like the Golf Channel incident, has to raise questions about the hiring practices at Golfweek. Again, I sure would like to see some data.
  

The EEOC recently obtained a $2.5 million settlement on behalf of an African-American electrician who claimed he was harassed daily, including the display of nooses, at Lockheed-Martin. This was the largest settlement filed by EEOC on behalf of an individual. See: http://www.diversity.com/public/2919.cfm
http://www.eeoc.gov/press/1-2-08.html

Since Fiscal Year 2001, the EEOC has filed more than 30 lawsuits that involve the displaying of hangman’s nooses on the job. It recently settled for $290,000 such a claim against Helmerich & Payne International Drilling in Jackson, Mississippi, for $390,000 against Pemco Aeroplex in Birmingham Alabama, for $600,000 against AK Steel in Butler, Pennsylvania, and for more than $1,000,000 against Commercial Coating Service of Conroe, Texas. Tresa Baldas, EEOC Targets Workplace ‘Noose” Cases, National Law Journal, November 5, 2007. Available at: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1193735026861. See Stephanie Armour, “Racial Bias Suits Climb in Workplaces,” Asbury Park Press, Oct. 29, 2007, available at http://www.app.com/apps/pbcs.dll/article?AID=/20071029/BUSINESS/710290307/1003.

For additional coverage of the Golf week debacle see:

http://www.washingtonpost.com/wp-dyn/content/article/2008/01/19/AR2008011902439.html?sub=AR

http://www.nytimes.com/2008/01/19/sports/golf/19magazine.html?_r=1&scp=1&sq=golfweek+fires+editor&st=nyt&oref=slogin

For some startling discussion of the use of nooses as a form of racial discrimination in the workplace see:

http://query.nytimes.com/gst/fullpage.html?res=9804E3DF1238F933A25754C0A9669C8B63&scp=1&sq=nooses%2C+symbols+of+race+hatred&st=nyt

http://www.cnn.com/2007/US/11/01/nooses/index.html

http://www.washingtonpost.com/wp-dyn/content/article/2007/11/07/AR2007110702700.html

http://www.businessweek.com/magazine/content/01_31/b3743084.htm?chan=search

Sunrise Senior Living Sued by Former CFO

The former CFO of Sunrise Senior Living filed suit back in September in Fairfax County Circuit Court in Virginia, claiming that he was fired in retaliation for uncovering improper accounting practices. Sounds like a snooze, but, trust me it has gotten real interesting. In recent court filings, Sunrise disclosed that it had discovered "more than 25,000 unique pornographic images" on a company-owned computer used by the former CFO. That disclosure raises interesting issues regarding the former CFO's attempt to delete material from laptops provided to him by Sunrise. Sunrise alleges that the former CFO returned one of two laptops after deleting all active electronic files, and that only after a forensic examination did it find the evidence of pornography on parts of the hard drive that had not been wiped clean. The former CFO's attorney has asked the court to strike all references to the pornography, arguing that Sunrise's instructions regarding retention of materials related to accounting activities under investigation and did not require the retention of the "adult materials". We hope to obtain more information about this interesting case and report further in the future.

Baseball

General Sherman supposedly once said: "If I owned Texas and Hell, I would rent Texas and live in Hell." Quite obviously, Roger Clemens is betting that the good citizens of Harris County, Texas will prove the good general wrong. In what, in retrospect, may well be viewed as a serious blunder, Brian McNamee's lawyers threatened to sue Clemens if he went on 60 Minutes. Presumably, that lawsuit would have been filed in a more favorable venue than Harris County, Texas. But Rusty Hardin beat McNamee's lawyers to the punch, and filed a fourteen page complaint for defamation in Harris County before McNamee could file elsewhere. The complaint can be found at http://i.cnn.net/si/2008_images/2008.01.06_Clemens_Original_Petition.pdf.

I am beginning to get that itch that starts about this time every year - the itch to go south for spring training. Many players that I would love to go observe. Will Elijah Dukes get through spring training before he gets arrested yet again? How will D Train (Dontrelle Willis) do in the American League? And who is this latest deportee from Japan, Yosuke Kukudome, who will play right field for the Cubbies?

Damages

Put this under the category of crass commercialism. I co-chair a two day CLE conference sponsored by ALI-ABA on damage issues in employment cases which will be held February 7-8 at Georgetown Law School in Washington, D.C. If you are interested in registering, just contact ALI-ABA at 1-800-CLE-NEWS.

We have been silent for a few days as we have been in the midst of a titanic battle in court under the Computer Fraud and Abuse Act. Many interesting issues that I hope to later discuss, once the dust clears in the litigation.

I am a certified baseball nut. So, this blog will occasionally have posts about baseball, some that might marginally have something to do with employment law, and most probably just having to do with the greatest game that God ever invented. So, with that fair warning, I thought I would start the day with some baseball.

Baseball

Tuesday, February 26, forty days from today, will be the first spring training games. The Mets play Michigan at noon, and that should be the first game of the spring training schedule.

In the midst of all the embarrassments about the drug scandal, the sad news comes that one of the greats died the other day. Johnny Podres who helped pitch the Brooklyn Dodgers to their one World Series died last Sunday. Podres pitched Game 7 in 1955 against the Yankees in their park, and, of course, the Dodgers won, having lost the World Series seven times before. Podres mentored Curt Schilling. Schilling had very nice things to say on his blog the other day about Podres. In his obituary, he is described as "old-school", and that he "disdained technological advances such as computerized charts." He once said: "I don't know nothin' about computers, I know pitchers."

In embarrassing contrast, Major League Baseball appeared on Capitol Hill on Tuesday of this week. And, what did we learn. First, Miguel Tejada may get indicted for lying under oath in his 2005 Congressional testimony. As far as I am concerned, I would be a happy man if Bonds, Tejada, and the others share a jail cell for a long time. We also shockingly learned that Major League Baseball granted an extraordinary number of drug exemptions to Major League ballplayers in 2007, allowing them to use performance-enhancing drugs because of alleged medical disorders. Now, before I tell you the medical disorder du jour, put your seat belts on, the vast majority of the players requested exemptions for stimulants used to treat attention-deficit disorder. Give me a break.

Then, you have the embarrassing shill for the union, Donald Fehr, who probably should be indicted as a co-conspirator and placed in a dark dank jail cell for a long time. Finally, in stark contrast to Mr. Fehr who is deserving of zero respect, we have the Baseball Hall of Fame passing over Marvin Miller, and on the same ballot, selecting Bowie Kuhn. I could hardly think of anyone more deserving to be in the Hall of Fame than Marvin Miller, and, at least comparatively speaking, anyone less deserving than Bowie Kuhn. But, life ain't fair.

Enough baseball.

The Balkans

Okay, I guess after taking a few days off, I am having trouble getting back into the swing of things in terms of employment law. I read the other day an op-ed piece about potential trouble spots in the Balkans, and came away saying to myself that you probably could count on one hand the people in our government who have an awareness of the many powder keg issues in that area that could explode into unrest in the coming months. For example, how many of us have a clue as to what is Mitrovica, much less its significance in this area of the world. Now, if you passed that test, can you find for me on a map Abkhazia? How about South Ossetia? Okay, you're a genius and you've gotten the first three. How about Trans Dnestr? Or Nagorno-Karabakh? If you are seriously interested, what provoked this rather silly post was Anatol Liven's op-ed in the Financial Times of this past Monday entitled "Balkan Unrest Remains a Recipe for Disaster."

Jena Six

Remember a few weeks back when everyone was in a dither about the so-called Jena Six. While I do not profess to know the full story, Charlotte Allen's article entitled "Jena: A Case of the Amazing Disappearing Hate Crime" that appeared in the January 21 edition of The Weekly Standard, is well worth reading to get a very different perspective on the matter than you might get from reading the Washington Post and the New York Times.

D.C. School Legislation Authorizing Termination of Non-Union Employees Passes

On January 8, the D.C. City Council gave final approval to the legislation that would provide authority to the new Chancellor to terminate non-union employees without cause. See our prior post "District of Columbia Non-Union School Employees To Be At-Will", Washington, D.C., Maryland, and Virginia Employment and Labor Law Blog, Dec. 27, 2007 at http://robertfitzpatrick.blogspot.com/2007/12/supreme-court-update-adea-disparate.html. (For full text of Act, see http://dccouncil.us/lims/default.asp).

Court Monitors and Special Masters

There has been controversy recently surrounding the fact that former Attorney General Ashcroft's business, the Ashcroft Group, was selected by the United States Attorney in New Jersey to monitor a False Claims Act settlement. See Philip Shenon, "Ashcroft Deal Brings Scrutiny in Justice Dept.", The Washington Post, Jan. 10, 2008, available at http://www.nytimes.com/2008/01/10/washington/10justice.html ; "Ashcroft Rakes It In With DOJ Settlement", available at http://www.talkleft.com/story/2007/11/25/124652/21 ; and "Pascrell Calls on House Judiciary Committee To Examine Deferred Prosecution Agreements", available at http://pascrell.house.gov/issues2.cfm?id=12817. In contrast, I have not heard a whisper of protest that the Supreme Court this past Tuesday named San Francisco lawyer, Kristin Linsley Myles, to be a Special Master to gather evidence and report to the Court on a dispute between South Carolina and North Carolina over sharing the waters of the Catawba River. Ms. Myles is a former clerk for Justice Scalia. For an excellent discussion on Special Masters, see Margaret G. Farrell, The Role of Special Masters in Federal Litigation, ALI-ABA Course of Study Materials for Civil Practice and Litigation Techniques in the Federal Courts (Oct. 14-16, 1993). See also materials submitted by Francis E. McGovern entitled Appointing Special Masters and Other Judicial Adjuncts: A Handbook for Judges, ALI-ABA Course of Study Materials for Civil Practice and Litigation Techniques in Federal and State Courts (Mar. 7-9, 2007).

One wonders if there ought not be competitive bidding for these plumb assignments.

Supreme Court Update

Engquist v. Oregon Department of Agriculture, 478 F.3d 985 (9th Cir. 2007), petition for cert. in No. 07-474 granted, 76 U.S.L.W. 3364 (Jan. 11, 2008).

The issue presented is whether the Court's "rational basis" analysis in Village of Willowbrook v. Olech, 528 U.S. 562 (2000) applies to public employers who intentionally treat similarly situated employees differently with no rational bases for arbitrary, vindictive, or malicious reasons.

In Olech, the Court recognized the viability of " . . . equal protection claims brought by a 'class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." The Olech Court held that a complaint alleging that the Village demanded a larger easement from the plaintiff than other similarly situated property owners; that the difference in treatment was irrational and wholly arbitrary; and that the Village ultimately relented in accepting a lesser easement was "sufficient to state a claim for relief under traditional equally protection analysis." 528 U.S. at 565.

Based upon Olech, seven Circuits recognized that public employees could state a rational basis equal protection claim against public employers to challenge individual employment decisions.
See Scarbrough v Morgan County Bd. Of Educ., 470 F3d 250, 260-61 (6th Cir 2006); Hill v Borough of Kutztown, 455 F3d 225, 239 (3d Cir 2006); Whiting v Univ of Miss, 451 F3d 339, 348-50 (5th Cir 2006); Neilson v D’Angelis, 409 F3d 100, 104 (2d Cir 2005); Levenstein v Salafsky, 414 F3d 767, 775-76 (7th Cir 2005); Campagna v Mass Dep’t of Envt’l Prot., 334 F3d 150, 156 (1st Cir 2003); and Bartell v Aurora Public Schools, 263 F3d 1143, 1148-49 (10th Cir 2001).

In contrast, the Ninth Circuit in Engquist, created an exception to Olech for public employment cases, predicating its exception on a concern that Olech was unnecessary due to the number of legal protections public employees enjoy, that the application of Olech to public employment would upset the common law at-will rule, and that such an exception would generate a flood of cases requiring federal review of a multitude of public agency personnel decisions. 478 F.3d at 993. See also Robert C. Farrell, Classes, Persons, Equal Protection, and Village of Whillowbrook v. Olech, 78 Wash. L. Rev. 367 (2003).

The Fourth Circuit has recognized Olech in Willis v. Marshall, 426 F.3d 251 (4th Cir. 2005), a non-employment case, where the plaintiff was barred from a municipal community center for "dirty dancing".

Huber v. Wal-Mart, 486 F.3d 480 (8th Cir. 2007), cert. granted, 128 S.Ct. 742 (Dec. 7, 2007), cert. dismissed, 2008 U.S. LEXIS 1095 (Jan. 14, 2008).

On Monday, the Supreme Court dismissed the Huber case as the parties had settled the matter. See our prior post, "Is The ADA An Affirmative Action Statute?", Washington, D.C., Maryland, and Virginia Employment and Labor Law Blog, at http://robertfitzpatrick.blogspot.com/2007/12/sprintunited-management-co-v-mendelsohn.html.

James v. Metro Government of Nashville, No. 07-367, cert denied, James v. Metro. Gov't, 2008 U.S. LEXIS 930 (U.S., Jan. 14, 2008)

The Court denied cert. in this case which presented the question whether a judge or jury has the role of deciding whether a worker has been retaliated against for protesting discrimination in the workplace.

This is the James' case second visit to the Supreme Court. Following the decision in Burlington Northern, James sought cert. and the Supreme Court, in light of its Burlington Northern decision vacated an earlier decision of the Sixth Circuit finding that certain retaliatory actions were not adverse employment actions under section 704(a) of Title VII. The Court remanded the case for reconsideration. 127 S. Ct. 336 (2006).

Thereafter, following a series of Sixth Circuit decisions, the Court of Appeals held on remand that it is for the Courts to determine whether the facts or allegations of a particular case meet the Burlington Northern standard. See McNeill v. U.S. Dep't of Labor, 2007 WL 1880599, *6 (6th Cir., June 27, 2007); Michael v. Catepillar Financial Service Corp., 2007 WL 2176220, *7 (6th Cir., July 31, 2007); Watson v. City of Cleveland, 202 Fed. Appx. 844, 855 (6th Cir. 2006).

Five other Circuits have adopted the holding of the Sixth Circuit that judges are to determine whether the Burlington Northern standard has been satisfied, and four other Circuits have held that juries should decide.

The Fourth Circuit in Csicsmann v. Sallada, 211 Fed. Appx. 163 (4th Cir. 2006), found that the alleged retaliatory act did not meet the Burlington Northern standard because "This court has never found" that a materially adverse action existed based on the type of retaliation alleged in that case. See also Parsons v. Wynne, 2007 WL 731398, *1 (4th Cir., Mar. 9, 2007). In contrast, the District of Columbia Circuit has held that it is for juries to decide whether a retaliatory act could have deterred protected conduct. See Vlikonja v. Gonzales, 466 F.3d 122 (D.C. Cir. 2006). See also Czekalski v. Peters, 475 F.3d 360, 365 (D.C. Cir. 2007).

John R. Sand & Gravel Co. v. United States (Jan. 8, 2008).

The majority opinion, written by Justice Breyer, relying on stare decisis, adheres to the Court's interpretation of a statute of limitations applicable to claims presented to the Court of Federal Claims (28 U.S.C. Section 2501) as jurisdictional, finding that the Court's decision in Irwin v. Dep't of Veteran's Affairs, 498 U.S. 89 (1990) was distinguishable. The Court, quoting Justice Brandeis, states that "in most matters it is more important that the applicable rule of law be settled than that it be settled right." Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (dissenting opinion).

Justice Ginsburg, in her dissent, responding to the stare decisis argument, states: "It damages the coherence of the law if we cling to outworn precedent at odds with later, more enlightened decisions." Justice Ginsburg also notes that 28 U.S.C. Section 2401(a) contains a time limit materially identical to that in Section 2501, and that the Courts of Appeals are divided on the question whether Section 2401(a) is jurisdictional. In conclusion, Justice Ginsburg states: "After today's decision, one will need a crystal ball to predict when this Court will reject, and when it will cling to, its prior decisions interpreting legislative texts."

For employment lawyers, I think the important question is whether the majority in any way suggests that Irwin, which is only seventeen years old, remains good law. Irwin held in a Title VII case against a federal agency that the statute of limitations is subject to equitable tolling - "namely, 'that the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.'" (citation omitted). I do not read the majority as suggesting that Irwin is anything other than good law. Clearly, in cases against the federal government, where there is an existing interpretation of a statute of limitations as jurisdictional, it would appear that an overwhelming majority of this Supreme Court will not overturn those precedents even though they are out of step with more modern interpretations that statutes of limitations against the federal government should be treated the same as statutes of limitations against private parties. As the dissent noted, Oliver Wendell Holmes' famous quote, seems applicable here. "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from the blind imitation of the past." Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897).

Collaborative Law

As a follow-up on my earlier post, "Collaborative Law", Washington, D.C., Maryland, and Virginia Employment and Labor Law Blog, http://robertfitzpatrick.blogspot.com/2008/01/collaborative-law-in-health-care-and.html, January 11, 2008, on collaborative law, see Marlissa Briggett's article in the Boston College Law Magazine on the topic, www.bc.edu/schools/law/alumni/magazine/2006/winter/currents.html.