The Continued “Employee” versus “Volunteer” Debate: Categorization of Volunteer Firefighters under the FMLA and FLSA

Image courtesy of fireandrescuedecals.com

In Mendel v. City of Gibraltar, No. 12-1231, 2013 U.S. App. LEXIS 16922 (6th Cir. Aug 15, 2013), the Sixth Circuit recently held, in a 2-1 decision, that a group of volunteer firefighters who receive a substantial hourly wage for responding to calls whenever they choose to do so, are “employees” within the meaning of the FLSA and FMLA.  In doing so, the Court reversed the judgment of Judge Roberts of the United States District Court for the Eastern District of Michigan, which had concluded that the firefighters were “volunteers” for the purposes of the two statutes.  Chief Judge Batchelder wrote the Sixth Circuit opinion, in which Judge Merritt joined, and Judge Kethledge wrote a separate dissenting opinion. 

The terms “employ” and “employee” have the same definition under both the FLSA and the FMLA. See 29 U.S.C. § 2611(3) (providing that for the purposes of the FMLA, the terms “employ” and “employee” have the same meaning as given in 29 U.S.C. § 203(e) and (g), the definitions section of the FLSA).  Thus, the Mendel decision focused exclusively on the definition of those terms under the FLSA.  In applying the Supreme Court’s “economic reality” test set forth in Rutherford Food Corp. v. McComb, 331 U.S. 722 (1947), and upon consideration of “the ‘striking breadth’ of the FLSA’s expansive definition of ‘employ’”, the Sixth Circuit concluded that the firefighters “fall within the FLSA’s broad definition of employee,” as they “are suffered or permitted to work… and they even receive substantial wages for their work.”

The court considered a 1986 amendment to the FLSA’s definition of “employee”, 29 U.S.C. § 203(e), which provides that individuals who volunteer to perform services for a public agency are not “employees” for the purposes of the statute.  However, that exception only applies where the worker in question “receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered.” Id.  Thus, the operative question was whether the monies paid to the firefighters constituted “compensation”, or whether it was instead just a “nominal fee”.  As the Court noted in its opinion with regard to this particular question:

The official regulations provide guidance at this juncture. The regulations define ‘volunteer’ as ‘[a]n individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered.’ 29 C.F.R. § 553.101(a); see also 29 C.F.R. § 553.104(a) (employing similar language). The regulations proceed to recognize, ‘Volunteers may be paid expenses, reasonable benefits, a nominal fee, or any combination thereof, for their service without losing their status as volunteers.’ 29 C.F.R. § 553.106(a).  The specific provision addressing nominal fees provides, in part, ‘A nominal fee is not a substitute for compensation and must not be tied to productivity. However, this does not preclude the payment of a nominal amount on a 'per call' or similar basis to volunteer firefighters.’ 29 C.F.R. § 553.106(e). Finally, the regulations caution, ‘Whether the furnishing of expenses, benefits, or fees would result in individuals’ losing their status as volunteers under the FLSA can only be determined by examining the total amount of payments made (expenses, benefits, fees) in the context of the economic realities of the particular situation.’ 29 C.F.R. § 553.106(f).

Mendel, 2013 U.S. App. LEXIS 16922 at *12-13.

In concluding that the monies paid to the firefighters was compensation rather than a nominal fee, the Court noted that:

The firefighters do not receive ‘a nominal amount on a 'per call' or similar basis.’ 29 C.F.R. § 553.106(e). Rather, they render services with the promise, expectation, and receipt of substantial compensation. See 29 C.F.R. §§ 553.101(a), 553.104(a). Each time a firefighter responds to a call, he knows he will receive compensation at a particular hourly rate—which happens to be substantially similar to the hourly rates paid to full-time employed firefighters in some of the neighboring areas. Essentially, the Gibraltar firefighters are paid a regular wage for whatever time they choose to spend responding to calls. These substantial hourly wages simply do not qualify as nominal fees.

Id. at *13.  

The Court recognized the seemingly counter-intuitive conclusion that so-called volunteer firefighters could be classified as “employees” rather than as “volunteers”.  But, the Court chalked that result up to “[t]he fact that the FLSA’s categories of ‘employee’ and ‘volunteer’ do not necessarily match the common use of those terms or popular perception in general.” Id. at *17.

In his dissent, Judge Kethledge noted that the firefighters had to perform a great number of tasks (152 hours of training, passing an examination, and then completing an additional 73 hours of training each year) for which they were not compensated, and that, taking only the annual training into account, that amounted to the firefighters receiving “little more than minimum wage.” Id. at *20.  Judge Kethledge indicated that he would thus hold that the firefighters are volunteers.  Further, Judge Kethledge noted that the FLSA defines “employ” in 29 U.S.C. § 203(g) to mean “to suffer or permit to work”, and that the Supreme Court had defined “work” for those purposes, in Tenn. Coal, Iron, & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598 (1944) as meaning “physical or mental exertion” that is “controlled or required by the employer.”  He reasoned that here, the city “neither controls nor requires the firefighters’ efforts’, as the firefighters generally worked without supervision, and were not required to respond to fires at all if they chose not to.  He concluded that “[p]ersons that need a Family and Medical Leave Act are presumably persons who need leave not to show up for work.  That description does not apply to the City of Gibraltar’s firefighters.  I respectfully dissent.”

In contrast to the Mendel case, the Eleventh Circuit held last year, in a per curiam opinion in Freeman v. Key Largo Volunteer Fire & Rescue Dep’t, Inc., 494 Fed. Appx. 940 (11th Cir. 2012), argued before Judges Hull, Martin, and Cox, that a volunteer firefighter was a volunteer, rather than an employee, under the FLSA.  As in Judge Kethledge’s dissenting opinion in Mendel, the Eleventh Circuit based its decision, in part, on a finding that the fire district in question did not supervise the plaintiff, and did not set the plaintiff’s schedule. Freeman, 494 Fed. Appx. at 943.  The Court also noted that (a) the fire department / fire district contract made a clear distinction between volunteers and employees; (b) volunteers were paid $5.00 per hour while employees were paid between $16.83 and $20.04 per hour; (c) the most that the plaintiff volunteer firefighter could earn in a month was $1,200 regardless of the number of hours he spent at the fire station or the number of emergency calls he responded to; (d) the fire department needed permission from the fire district to hire paid employees; (e) the plaintiff’s schedule varied depending on his availability; (f) the district did not mandate standard operating guidelines for volunteer firefighters; (g) the plaintiff’s individual rate of pay was not set by the fire department or fire district; and (h) besides W-2 forms, the fire department did not provide any employment records to the plaintiff, and the plaintiff did not allege that the fire district had any employment records for him. Id. at 943-44.  The Court concluded that based on the above factors, “the economic reality is that Freeman is not an employee of the Department or the District.”

Whether the Mendel and Freeman cases represent a circuit split on this issue, or whether they are instead distinguishable on their facts, is not entirely clear.  According to Judge Kethledge’s view of the Mendel case, both cases involved a lack of supervision, schedules which varied according to the individual workers’ availabilities and which were not controlled by the fire departments or districts, and pay which (at least when considering time spent training and taking examinations without compensation in the Mendel case) was near or below minimum wage.  However, the cases also appear to differ factually in some respects.  At least with regard to the time spent actually responding to calls, and excluding Judge Kethledge’s consideration of unpaid time spent training and taking exams, the rate of pay in the Mendel case was $15 per hour – three times the $5 per hour in the Freeman matter.  And, the Freeman opinion speaks of a monthly cap on volunteers’ earnings, while no such cap is discussed in either the Mendel majority opinion or dissent.  Whether these and the other factual differences between the two cases are sufficient to explain the difference in the two holdings, one can only surmise.

This issue has also been litigated under state and local statutes.  See, e.g., City of Ft. Calhoun v. Collins, 500 N.W.2d 822, 826 (Neb. 1993) (a volunteer fire department is not an employer within the meaning of the state fair employment practices act).  And, the above cases certainly do not represent the first time that similar issues have been litigated with regard to volunteer firefighters. See, e.g., Bryson v. Middlefield Volunteer Fire Dept., Inc., 656 F.3d 348 (6th Cir. 2011) (reversing District Court’s holding that that plaintiff volunteer firefighter had to receive “significant renumeraction” in order to be considered an employee for the purposes of her Title VII claims, and holding that compensation is only one of a number of factors that should be considered in making that determination); Haavistola v. Community Fire Co., 6 F.3d 211 (4th Cir. 1993) (holding that the issue of whether a volunteer firefighter was an employee, for the purposes of her Title VII sex discrimination claim, involved fact-intensive determinations on which the trial court was not equipped to rule on the basis of a summary judgment record alone).  Indeed, these cases are only part of the larger longstanding debate over the proper characterization of workers as employees versus volunteers, whether certain workers can rightfully be characterized as unpaid interns or externs, and the similar issue as to whether workers should be categorized as employees as opposed to independent contractors.  For several of our firm’s prior publications on those topics, see, e.g.:

• The Department of Labor’s Internship Test under the FLSA, available here;
• Misclassification of Employees as Independent Contractors, available here; and
• FLSA Developments: Missclassification as Independent Contractors, Unpaid Interns, the Status of DOL Opinion Letters, and the Meaning of Clothes Under Section 3(o), available here.

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Pregnancy and Pregnancy-Related Conditions Continue to Engage the Attention of the Courts, Regulators, Employers, and Employees

            There has been an extraordinary amount of activity of late regarding pregnancy and pregnancy-related issues, and this post will refer to but a few.  

I.                 Pregnancy Discrimination

            On February 15, 2012, the EEOC held a hearing where speakers discussed unlawful discrimination against pregnant workers and workers with caregiving responsibilities.  The testimony can be found at http://www.eeoc.gov/eeoc/meetings/2-15-12/.  At the hearing, written testimony was received from both Ms. Peggy Mastroianni, Legal Counsel with the EEOC, and Ms. Melvina Ford, Senior Policy Advisor in the Wage and Hour Division of the Department of Labor.  Ms. Ford in particular addressed the issue of nursing mothers, noting that the Affordable Care Act, P.L. 111-148 § 4207 amended section 7 of the Fair Labor Standards Act, 29 U.S.C. § 207(r) to require employers to provide nursing mothers with break time and private space in which to express breast milk.  Furthermore, in December of 2010 the Wage and Hour Division published a Request for Information at 75 Fed. Reg. 80073 (Dec. 21, 2010) seeking comments to certain questions on the Department’s preliminary interpretations of the law.  See also 29 U.S.C. § 207(r)(3) (undue hardship exemption from the FLSA); 75 Fed. Reg. 80075, 80076, 80078 (regulations relating to time, space, and enforcement of the requirements).  A follow-up blog will appear in this space once the full transcript of the hearing becomes available.  

            Professor Jeannette Cox has posted her forthcoming Boston College Law Review article entitled Pregnancy as “Disability” and the Amended Americans with Disabilities Act (online) in which she argues that even though pregnancy, while more often than not a healthy biological state, can be viewed as a workplace “disability.”  Based on that premise, Professor Cox argues that the duty to accommodate may extend to pregnancy.  

            In Been v. New Mexico Dep’t of Information Tech., No. 6:09-cv-00726, 2011 U.S. Dist. LEXIS 114982 (D.N.M. Sept. 30, 2011), a state employee who was fired while absent to deal with pregnancy complications established disputed issues of material fact on gender discrimination and FMLA claims.  The court allowed plaintiff’s claim to proceed despite the fact that she had failed to identify any similarly situated, non-pregnant, individuals who were treated more favorably, holding that such “comparison evidence” is not necessary to establish a prima facie case.  Following the Tenth Circuit’s opinion in Dodd v. Riverside Health Sys., Inc., 76 F.3d 392 (10th Cir. 1996), the court found that to make out a prima facie case of discrimination “a plaintiff need only show that her position remained open and was ultimately filled by a non-pregnant employee.” 

II.              Breastfeeding or Expressing/Pumping Breast Milk 

           In EEOC v. Houston Funding II, Ltd., CA H-11-2442, 2012 U.S. Dist. LEXIS 13644 (S.D. Tex. Feb. 2, 2012) (as amended Feb. 9, 2012), a case that has occasioned extensive commentary (see here, here, and here for a small sampling), Judge Lynn N. Hughes held that “[f]iring someone because of lactation or breast-pumping is not sex discrimination.”  (footnote omitted).  Judge Hughes relies on Puente v. Ridge, No. M-04-267, 2005 U.S. Dist. LEXIS 46624, at *11-12 (S.D. Tex. July 6, 2005) (on the facts before it, breast feeding did not qualify for protection under the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k)); Martinez v. NBC Inc., 49 F. Supp. 2d 305, 311 (S.D.N.Y. 1999) (prohibition on breast pumping did not show that female employee was treated differently than non-pregnant men who were similarly situated); Jacobson v. Regent Assisted Living, Inc., No. CV-98-564-ST, 1999 U.S. Dist. LEXIS 7680, at *29-30 (D. Or. Apr. 9, 1999) (to the extent that plaintiff based her claims on employer’s prohibition on breast pumping, she failed to state a claim); Wallace v. Pyro Mining Co., 789 F. Supp. 867, 869 (W.D. Ky. 1990) (so long as employees are treated the same under benefits plan, no disparate impact claim despite exclusion of coverage for uniquely female condition of pregnancy).

In Puente, the federal district court for the Southern District of Texas reviewed several opinions from courts which have addressed this issue and concluded that:

 Those few courts which have addressed the issue have generally held that breast-feeding is not a condition within the scope of the PDA. See Fejes v. Gilpin Ventures, 960 F. Supp. 1487 (D. Colo. 1997)(Based on the language of the PDA, its legislative history, and decisions from other courts interpreting the Act, the district court held that breast-feeding is not a condition within the scope of the PDA; breast-feeding is not a medical condition related to pregnancy or childbirth within the meaning of the PDA); Vachon v. R.M. Davis, Inc., 2004 U.S. Dist. LEXIS 6339 (D. Me., 2004). While these opinions are not controlling on this Court, the Court will follow the holdings of these cases. As a result, Plaintiff's decision to breast feed in the present case does not afford her protection under the PDA [and as a result neither under Title VII.] See e.g. Molero v. Port Cargo Enters., LLC, 2005 U.S. Dist. LEXIS 5519, *9 (E.D. La. 2005)(Generally in order to support a hostile work environment sexual harassment claim, an employee is required to show that (1) she belongs to a protected group; (2) she was the subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of affected a term, condition, or privilege of employee; and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action.). As a consequence, even viewing Plaintiff's allegations in a light most favorable to her, Plaintiff's claims of gender discrimination, hostile work environment, and disparate treatment fail to state a claim upon which relief can be granted. Accordingly, the Court orders that Plaintiff's claims of gender discrimination, hostile work environment and disparate treatment be DISMISSED.

III.            Protection for Pre-Eligibility Activity Under the FMLA

As we have previously noted, not all courts have taken this path in determining the pregnancy-related protections afforded to women.  In Pereda v. Brookdale Senior Living Cmtys., Inc., No. 10-14723, 2012 U.S. App. LEXIS 492 (11th Cir. Jan. 10, 2012), the Court ruled on two issues relevant here:

1)     The Court found that plaintiff’s interference claim could proceed “because the [Family Medical Leave Act] contemplates notice of leave in advance of becoming eligible, i.e., giving birth to a child, the FMLA regulatory scheme must necessarily protect pre-eligible employees, such as [plaintiff], who put their employers on notice of a post-eligibility leave request.” 

2)     In addition, the Court found that plaintiff could also state a cause of action for retaliation, holding that “a pre-eligible request for post-eligible leave is protected activity because the FMLA aims to support both employees in the process of exercising their FMLA rights and employers in planning for the absence of employees on FMLA leave.” 

See our blog post on Pereda and related cases for further discussion of these issues. 

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Even Though Not Yet Eligible for FMLA Leave, Employee Is Protected

In Pereda v. Brookdale Senior Living Cmtys., Inc., No. 10-14723, 2012 U.S. App. LEXIS 492, (11th Cir. Jan. 10, 2012), the Court was confronted with the question left open by Walker v. Elmore Cnty., Bd. of Educ., 379 F.3d 1249, 1253 (11th Cir. 2004), that is whether the FMLA protects a pre-eligibility request for post-eligibility maternity leave.  The 11th Circuit, Judge Fay writing for the panel, held that the pregnant employee in such circumstances pled both a FMLA interference and a FMLA retaliation claim.  

First, with respect to Pereda’s FMLA interference claim, the Court held that “because the statute contemplates notice of leave in advance of becoming eligible, i.e., giving birth to a child, the FMLA regulatory scheme must necessarily protect pre-eligible employees, such as Pereda, who put their employers on notice of a post-eligibility leave request.”  Pereda, 2012 U.S. App. LEXIS 492 at *14.  Further, the Court stated: “an expectant mother who is along in her pregnancy cannot hide that, in due time, she will give birth to a child.  By the very nature of the fact that a full-term pregnancy takes nine months to complete, not affording pre-eligible expecting parents any protection would leave them exposed to adverse action by the employer.”  Id. at *14-*15.  The Court thus concluded that a pre-eligible employee has a cause of action if an employer terminates her in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible.  

Finally, with respect to Pereda’s FMLA retaliation claim, the Court held that she could also state a cause of action for FMLA retaliation, holding “that a pre-eligible request for post-eligible leave is protected activity because the FMLA aims to support both employees in the process of exercising their FMLA rights and employers in planning for the absence of employees on FMLA leave.”  See also Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir. 2001) ("The right to actually take [FMLA] leave . . . includes the right to declare an intention to take such leave in the future."); Beffert v. Penn. Dept. of Public Welfare, 2005 U.S. Dist. LEXIS 6681 (E.D. Pa. April 18, 2005) (holding a pregnant employee who provided notice of post-eligible FMLA leave could bring a retaliation claim even though she was not eligible at the time of her request); Reynolds v. Inter-Indust. Conf. on Auto Collision Repair, 594 F. Supp. 2d 925, 928 (finding an employer "has no legitimate interest in being able to terminate an eleventh month-employee for simply requesting foreseeable leave for which he is eligible" especially when the same decision would be prohibited a month later); Walker v. Elmore Cnty. Bd. of Educ., 223 F. Supp. 2d 1255, 1260 (finding it "absurd" to interpret the FMLA to allow a employer to retaliate against an employee who gives pre-eligible notice of post-eligible leave).  The Court concluded by stating: “Our decision today simply means that pre-eligible discussion of post-eligible FMLA leave is protected activity under the FMLA.”

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Circuits Split as to Whether Public Officials Can be Sued Individually Under the FMLA

The Fifth and Eighth Circuits have concluded that public officials can be sued in their individual capacities under the FMLA.  See Modica v. Taylor, 465 F.3d 174, 184-87 (5th Cir. 2006); Darby v. Bratch, 287 F.3d 673, 681 (8th Cir. 2002).  In contrast, the Sixth and Eleventh Circuits have held that FMLA suits against individual public officers are not cognizable.  See Mitchell v. Chapman, 343 F.3d 811, 825-33 (6th Cir. 2003); Wascura v. Carver, 169 F.3d 683, 685-87 (11th Cir. 1999).  The Fourth Circuit has not addressed this issue, and the district courts within the Fourth Circuit have reached contrary conclusions on the subject, with, for example, one judge on the Maryland federal district court bench allowing such claims (Knussman v. Maryland, 935 F. Supp. 659, 664 (D. Md. 1996) (Black, J.), and another judge on the same bench rejecting such a claim (Sadowski v. U.S. Postal Serv., 643 F. Supp. .2d 749, 753 (D. Md. 2009) (Bennett, J.) (recognizing the opinion in Sadowski is “at variance” with the decision in Knussman)).  Recently, Judge Brinkema of the Eastern District of Virginia held, in Weth v. O’Leary, 2011 U.S. Dist. LEXIS 74432 (E.D. Va. July 11, 2011) held that public officials who acted directly or indirectly in the interests of the employer can be personally liable in FMLA cases.

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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.

Dr. King's Birthday

We are closed Monday and will not be blogging Monday as we celebrate Dr. King's birthday.

My favorite quotation from Dr. King is: "The arc of the moral universe is long, but it bends toward justice." The quote was actually first uttered by Theodore Parker, an American Transcendentalist, referring then to the abolitionist movement.

Last October the world lost one its great voices, who was clearly inspired, in part, by Dr. King. I refer to the South African reggae singer Lucky Dube. One of my favorite lyrics of his are from his song "Different Colours / One People." One refrain goes as follows:

They were created in the image of God
And who are you to separate them
Bible says, he made man in his image
But it didn't say black or white
Look at me you see BLACK
I look at you I see WHITE
Now is the time to kick that away
And join me in my song


The Psychology of Race in America

I am not a big fan of Bill Moyers, but his interview last Friday evening, January 11th, with Shelby Steele regarding the racial psycho-dynamics of the Obama campaign was spot on. The transcript is available at http://www.pbs.org/moyers/journal/01112008/transcript2.html?print.


Supreme Court Update

Today's conference

The Court granted cert. in MetLife v. Glenn, 06-923; 461 F.3d, 660 (3rd Cir. 2006).

The Solicitor General had filed an invitation-brief (available at http://www.usdoj.gov/osg/briefs/2007/2pet/6invit/2006-0923.pet.ami.inv.pdf) in support of the petition for cert. in this case, which presents the recurring ERISA issue as to the standard of review that the trial court's should utilize in ERISA benefit cases when the plan administrator is the employer, and thus evaluates whether or not to pay claims out of its own pocket. The first question that the Solicitor recommended the Court grant cert. on is whether or not that constitutes a conflict of interest that must be considered in determining the standard of judicial review. The Solicitor also recommended to the Court that it order the parties to brief how the Courts should weigh such conflicts of interest in reviewing discretionary benefit determinations made by such a "dual-role administrator."

The courts have struggled with the delineation of a meaningful standard ever since Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989). As a commentator noted in the fall 2007 issue (vol. 37, no. 1) of The Brief, the publication of the Tort Trial & Insurance Practice Section of the ABA, "This sliding scale approach is hopelessly imprecise . . . " See Teresa S. Renaker, "State Regulation of Discretionary Clauses In Insured ERISA Plans," The Brief, Fall 2007, page 51. Ms. Renaker's fascinating article called my attention to developments occurring at the state regulatory and state legislative levels regarding discretionary clauses, like the one at issue in MetLife. The National Association of Insurance Commissioners and several states have moved to disallow discretionary clauses in certain insurance policies. On December 5, 2004, NAIC voted unanimously to adopt model legislation banning the use of discretionary clauses in disability insurance policies. This model legislation amended the NAIC's Model Act 42 of 2002, which banned discretionary clauses in health insurance policies, expanding it to reach disability policies as well. The article points out that the Federal District Courts are now grappling with the effect in those states that have by regulation banned discretionary clauses, on the standard of review in ERISA cases like MetLife. Some courts have found discretionary clauses invalid, and have applied de novo review. Other courts have continued to apply discretionary review. And, some courts have held that the states do not have the authority to regulate in the area of discretionary clauses.So, if you represent a client in a benefit determination case, in addition to keeping your eye on MetLife, you need to determine what, if any, action the applicable state insurance commissioner has taken in light of NAIC's model legislation.


The Court also granted cert. in Meacham v. Knolls Atomic Power Lab., 06-1505; 461 F.3d 134 (2d Cir. 2006).

The Solicitor General had filed an invite-brief with the Court on December 21, 2007 (available at http://www.scotusblog.com/wp/wp-content/uploads/2007/12/meachamcvsg.pdf) in Meacham v. Knolls Atomic Power Lab., No., 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 critically 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.


The Court also granted cert. in Crawford v. Metro. Gov't of Nashville & Davidson County, 06-1595; 211 Fed. Appx. 373, 2006 U.S. App. LEXIS 28280 (6th Cir. 2006) (petition for cert. available at http://www.scotusblog.com/movabletype/archives/06-1595_pet.pdf).

The 6th Circuit held that the anti-retaliation provisions of Title VII were not violated by the employer’s allegedly retaliatory discharge of plaintiff who had cooperated in the employer’s internal investigation of a co-worker’s sexual harassment allegations against a supervisor, where there was no pending charge with the EEOC.


AT&T Corp. v. Hulteen, 07-543; 498 F.3d 1001 (9th Cir. 2006)

The Court had this case on for decision at conference today whether to grant cert., and, as best I can determine, took no action today one way or the other. The issue in this case is whether Title VII permits an employer, when setting retirement benefits, to discriminate between who took pregnancy disability leave before the Pregnancy Discrimination Act came into effect and other employees who took any other kind of temporary disability leave during that same period.


January 11th Conference

Taylor v. Progress Energy, Inc., 493 F.3d 454 (4th Cir. 2007), re-aff’g 415 F.3d 364 (4th Cir. 2005, vacated and remanded by 2006 U.S. App. LEXIS 15744 (4th Cir. June 14, 2006), petition for cert. filed on October 22, 2007, available at http://www.scotusblog.com/wp/wp-content/uploads/2007/10/progresspetitionappendix.pdf.

The Fourth Circuit, on rehearing and now with the benefit of the amicus brief from the Department of Labor, which disagreed with the Court’s interpretation of a DOL regulation prohibiting waivers of FMLA claims, nonetheless reaffirmed its earlier ruling. Judge Duncan dissented. The Fourth Circuit, disagreeing with the Fifth Circuit’s holding in Faris v. Williams WPCI, Inc., 332 F.3d 316 (5th Cir. 2003), held DOL regulation that prohibits waivers of FMLA claims absent DOL or court approval should be upheld. The Fifth Circuit had held that the regulation only barred the prospective waiver of substantive FMLA rights; whereas the Fourth Circuit held that the regulation applied to all waivers, both retrospective and prospective. In addition, the Fourth Circuit held that the regulation applies to all FMLA rights, both substantive and proscriptive, the latter preventing discrimination and retaliation.

At the Court's January 11th conference, the Court had requested that the Solicitor General file an invitation-brief. Now, this should get real interest. The Solicitor of Labor filled an amicus brief at the Fourth Circuit when the petition for rehearing was filed, and the panel rejected the Department's interpretation of the statute. The Supreme Court, in Auer and Coke, deferred to the Department's interpretation as expressed in Supreme Court briefs. In Auer, the Department's interpretation was first expressed in the Supreme Court brief, and the Court genuflected to it. The Fourth Circuit in Progress Energy, did not genuflect. Should be interesting.


Engquist Redux

When the Supreme Court took Engquist the other day (http://robertfitzpatrick.blogspot.com/2008/01/we-have-been-silent-for-few-days-as-we.html), it passed on a fascinating second issue that the cert. petition presented, that is whether a state "split recovery" punitive damages statute violates the Takings Clause of the Constitution.

The supreme courts in six states have upheld the statutes against federal takings challenges. Cheatham v. Pohle, 789 NE 2d 467, 474075 (Ind. 2003); Evans v. State, 56 P.3d 1046, 1058 (Alaska 2002); Mack Trucks, Inc. v. Conkle, 263 Ga 539, 436, SE 2d 635, 639 (1993); Gordon v. State, 608 So 2d. 800, 801-02 (Fla. 1992) (per curiam); Shepherd Components, Inc. v. Brice Petrides-Donohue & Associates, 473 NW 2d 612, 619 (Iowa 1991). But two state supreme courts have held the statutes violate the federal Takings Clause. Kirk v. Denver Publishing Co. 818 P 2d 262, 273 (Colo. 1991); Smith v. Price Development Co., 125 P 3d 945 (Utah 2005). One U.S. District Court has held that a split recovery statute violates the Excessive Fines Clause. McBride v. Gen. Motors, Corp., 737 F. Supp 1563, 1578 (MD Ga. 1990).


Customer Preference

There is a recent customer preference case, Simple v. Walgreen's Co., 2007 U.S. App. LEXIS 29729 (7th Cir., Nov. 14, 2007), where Walgreen's attempted to defend assignments to its stores based upon racial demographic data, attempting to justify the denial to an African American of a promotion to manage a store in Pontiac, Michigan because Pontiac was not ready to have a black manager. Judge Posner rejected this bit of nonsense out of hand.

Historically, the courts have been loathe to bless customer preference as a justification for employment practices based on a protected characteristic. See Diaz v. Pan Am. World Airways, 442 F.2d 385 (5th Cir. 1970); Gerdom v. Continental Airlines, Inc., 692 F.2d 602 (9th Cir. 1982); Fernandez v. Wynn Oil Co., 653 F.2d 1273 (9th Cir. 1981); 29 C.F.R. 1604.2(a)(1)(iii) (preferences of co-workers or customers are not a BFOQ).

Now, what's interesting is what is going on beneath the radar screen in the interaction between law firms and their clients. Increasingly, I hear reports of clients insisting that, if the law firm wants their business, the law firm must assign African Americans to work on the account. Why is this not as odious in the eyes of the law as Walgreen's saying that Pontiac is not ready for a black manager at its store there?


Background Checks

The Ninth Circuit in Nelson v. National Aeronautics and Space Administration, 2008 U.S. App. LEXIS 498 (9th Cir., Jan. 11, 2008), issued an opinion allowing scientists at NASA's Jet Propulsion Laboratory to continue working until the question of their privacy challenge to the requirement of a new domestic security rule that they submit to background checks was decided.


Black Holes

Some can't sleep nights for fear that an asteroid or meteorite will collide with Earth during the night. Well, for those of you who comfortably sleep despite asteroid phobia and meteorite phobia, let me share with you the latest scientific discovery which undoubtedly will lead to more insomnia. Professor Kelly Holley-Bockelmann of Vanderbilt University has just presented at the American Astronomical Society's annual meeting about renegade black holes roaming the Milky Way. She says that there are breakaway black holes, that have broken away from that giant black hole that sits at the center of our galaxy, and they are, as best she can discern, indiscriminately roaming the Milky Way. They are, of course, invisible, although they do emit Hawking radition. So, any second now, we could be sucked in to a black hole, and no longer exist. The title alone of an article from the Australian News is disquieting -- "Hundreds of hungry black holes may me lurking in our milky way galaxy, waiting to gooble unsuspecting planets and stars that cross their paths." Night, night.

The Iowa Caucus


A Simple Prayer

by

Robert B. Fitzpatrick

Mine eyes have seen . . .
Medgar, dead at the hand of hate,
Ross’ grocery store in Port Gibson, and the voices of hope,
Unita in Mayersville, Eddie Ford, Roosevelt and Pauline, and most especially, our Ms. Daisy, Ms. Minnie Ripley,

Mine eyes have seen . . .
Martin, dead at the hand of hate,
Tut gone forever, but Rosie at Head Start with the sparkling eyes of a child,
Then hope again, Bobby,

Mine eyes have seen . . .
Anna Walentynowicz in Gdansk, and,
The Philosopher King, Václav Havel,
And death yet again, Fr. Popieluszko, but hope alive at St. Stanislas Kostka,

Mine eyes have seen . . .
The smile, the erect bearing, and those wonderful shirts – after Robbin Island, and,
Lucky Dube voicing the hope,
And then death again this last fall as we killed our own, Lucky,

Mine eyes have seen . . .
And, my back straightened with pride this morning,
I thought I saw beyond the horizon,
Or, was it but a dream,

Protect your son, Oh Lord,
Work your will,
And let us see,
Whether the refrain is complete.


Is A Constructive Discharge Claim A Continuing Violation And If So, Who Cares?


In response to my post regarding the opinion in Mayers of the D.C. Court of Appeals,
there has been some discussion that, for example, if a former employee, who alleges that he/she was constructively discharged as a result of an accumulation of intolerable acts, on the 365th day after the resignation/constructive discharge, the former employee's complaint might be time barred if the last of the series of intolerable acts that precipitate the resignation occurred 366 or more days before the filing. Frankly, while that is intellectually interesting, I doubt if any Judge would give the time of day to such an argument. The culminating event, the resignation/constructive discharge, has to be an actionable event even though, in a sense, all of the wrongs that lead the employee to quit Suders-like preceded resignation and, in some cases, could be all outside the one year statute of limitations.

On a nearly silly tangent, I have to assume that Maryland, even after Hass, in a constructive discharge circumstance where the person announces their resignation on day X to be effective on X plus two weeks, the statute of limitations begins to run from the announcement date, not the effective date of the constructive termination.

Having said the above, the discussion regarding my initial post, has led me to revise my conclusion that whether or not the courts denominate constructive termination cases as akin to Morgan - cumulative wrong cases is indeed of significant value to Plaintiffs. Let me explain my thinking.

If constructive termination is viewed as a cumulative wrong, then the entire string of events that eventually "breaks the camel's back" and culminates in a resignation called a constructive termination, under Morgan, so long as there is no break in the chain, the entire chain/string of events is actionable and all of the wrongs committed during the chain are compensable, not just the events that occurred within the one year D.C. Human Rights Act statute of limitations. So, if it is death by a thousand cuts over more than a year, the events before the year before filing are not only evidence, under Morgan they are liability events.

Thus, the jury can consider all of the events no matter how far back in time the chain of events goes, in assessing the amount of the jury's award. So, while maybe a bit esoteric, conceiving of constructive termination as a cumulative wrong is helpful for closing argument and for shutting down arguments that the events prior to the one year period unduly swayed the jury and affected inappropriately the amount of their award.

Also, viewing constructive terminations as cumulative wrongs shuts down arguments by the defense that the events occurred within one year before the resignation in toto do not amount to sufficient intolerability to justify an employee, like the police woman in Suders, saying "enough is enough", and having her resignation viewed as a fit response to the intolerable acts.