The Law of Unintended Consequences: Immigration and E-Verify

A recent article in Businesweek, A Verification System for New Hires Backfires makes clear just how complex the immigration issue is.

The story of one flower grower's attempt to utilize E-Verify, the national registration system that allows an employer to check on worker's eligibility (after they are hired) has made it very difficult to staff his green houses, particularly during the spring growing season. Even accounting for some hyperbole his quote is fairly chilling: "Those who want to work fail to pass E-Verify, and those that pass fail to work."

The system, now utilized by about 5% of America's employers according to the article, would be mandatory if a bill, H.R. 2885 introduced by Representative Lamar Smith (actually my congressman) were to become law. If you want to check out the E-Verify website for yourself, go here.

The bill has been passed by the House Judiciary Committee, and is still pending in the House Education and the Workforce and Ways and Means. See here for Congressional action.

The stop in Ways and Means is not just an idle one, since according to a 2008 Congressional Budget report, a national mandate would cut federal tax revenue by more than 17 billion dollars (that's billion with a B).

Everyone knows that immigration is a major problem that actually needs a solution. And it seems to me to be area where the law of unintended consequences could be particularly relevant.

A hat tip to Kriss Dunn at [the hr capitalist] for his post, 99 Problems: E-Verify Ain't One ...

Missed This New Jersey MDV the First Time Around

I was in Lubbock yesterday talking to their SHRM chapter about retaliation and the dangers of those cases, along with its first cousin whistleblowing, and this headline did nothing to change my mind. Former Warren Township prosecutor awarded $1.26M for whistleblower complaint.

A city prosecutor, Michele D'Onofrio won a verdict of $1.38 earlier this year when a New Jersey jury determined she had been terminated for reporting that a municipal judge had been drunk on the bench. Today's headline was about an additional $1.26 million awarded by the court for attorneys fees and costs.

Another powerful reminder that when you lose an employment law trial, at times the attorneys fees can be just as big a hit as the underlying award.

A 2007 post at the Victim of (Judicial) Greed blog, Heating Up has much more detail about the underlying suit which appears to have been against a law firm headed by a former New Jersey governor and was for sexual harassment as well as the whistleblowing complaint.

Which underscores another point, there is often much, much more to any story than appears on the initial reading, and that is particularly true in most cases of legal reporting.

A Timely Follow Up -- The Importance of Action Not Words

Given the topic of my previous post  --- the need for employers to step up and make sure they dealt with bullying behavior rather than leaving it to legislation --- it was ironic to come across Bob Sutton's post, Adopting The No Asshole Rule: Don't Bother If The Words Are Hollow.

The first part of that title is a big step for employer's solving the bullying problem; but it only works, it you follow through.

Giving Aid to the Enemy: The Healthy Workplace Act Explained

David Yamada who posts at Minding the Workplace is also the author of a model bill, The Healthy Workplace Act (HWB), designed to address bullying in the workplace. A recent post, The Healthy Workplace Bill: What’s it all about?, gives a bit of the procedural history but also links to what he calls an "excellent slideshow that explains the need for, and basic provisions of the HWB," that was prepared by Deb Falzoi, a professional web designer and computer graphics expert who doubles as communications director for Massachusetts Healthy Workplace Advocate.

I concur -- it is an excellent slideshow. And if you have any interest in the issue (or just want to see a very impressive presentation) I encourage you to check it out.

Recommending that you check it out, could seem strange given my repeated opposition to the passage of the HWB. And to be clear, the "enemy" referred to in my headline is not really accurate. Bullying behavior is wrong and should be addressed and with that I am in common cause with David and the other supporters of the HWB.

Our difference, and it is a substantial one, is how best to get there. I do not believe the legal system, the HWB's preferred method, is capable of making the types of nuanced distinctions required to enforce the HWB.

As Exhibit A, I offer the presentation. When you check it out, pay careful attention to the types of behavior that can be called "bullying":

• false accusations
• yelling, shouting, screaming
• exclusion and "the silent treatment"
• withholding resources necessary to do their jobs
• behind-the-back sabotage and defamation
• put-downs, insults, and excessively harsh criticism
• unreasonably heavy work demands

and please explain how a legal system that is stressed deciding whether an employment decision was based on race or gender, is going to distinguish between what is a reasonable and and unreasonable work demand, or appropriate, constructive criticism versus excessively harsh criticism, just to cite two of the categories.

I know that the HWB attempts to put in procedural protections to ensure that a suit can't be based on "just a bad day at the office," but as someone who is in the trenches where those battles are fought, I know it will not work. (Let me rephrase that, it could work, but at a tremendously prohibitive cost in both judicial and employer resouces. Lawyers, however, would benefit tremendously.)

Relying on trial courts to be effective gatekeepers on this issue is simply a flawed strategy. First, it ignores the basic principle that when an employer is sued they have lost.  See my earlier post, Bullying As a Cause of Action: One Large Step Closer.  Given the HWB to work with, any lawyer who could not craft a viable complaint on what he or she is told by any employee who is unhappy with their workplace, should turn in their bar card. Remember the standard for chucking it out at that stage, which would still cost the employer the cost of retaining counsel and making an initial pleading, generally requires the court to accept as true anything that is alleged in the complaint.

Secondly, it has not worked even when there was a much higher bar. In Texas, the Supreme Court has repeatedly lamented the failure of lower courts to serve in the gatekeeper function in cases of intentional infliction of emotional distress, where the standard is:

only where the conduct has been so outrageous in character, and so extreme in degree, so as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Restatement (Second) of Torts, Section 46 cmt. d (1965).

If the trial courts can't screen out cases where the test is "outrageous conduct" we can't possibly expect them to do so where they are being asked to make subtle distinctions involving the kinds of conduct listed above. In fact, it would require  what courts from the Supreme Court on down have frequently insisted they are not interested (or capable) of being,  "super personnel departments" as the 1st Circuit described it.

The key to regulating inappropriate conduct lies in employer action. And in the presentation, there is a section on how such conduct is harmful to business. That is the case that needs to be made.

Let's just make it in the C-Suite, not the courthouse.

Disparate Impact and the Non-Traditional Plaintiff

At the start of the year, I noted that one thing that seemed to be a "trend" was litigation by non-minority plaintiffs. See, 2011 -- the Year of the Non-Minority?

Throughout the year I have noted other cases. And now Molly DiBianca who is always on top of things at the Delaware Employment Law Blog has picked up yet another case recently decided by the 3rd Circuit, Disparate Impact of Newark, NJ’s Residency Requirement .

In Meditz v. City of Newark, (9.28.11) [pdf] a white male analyst job applicant was rejected by the City of Newark because he did not live within the city limits. The Court summarized the case in perfect disparate impact terms:

Meditz alleges that the residency requirement adopted by Newark for its non-uniformed work force has a disparate impact on white, non-Hispanics because Newark‟s population does not reflect the racial make-up of the relevant labor market in the surrounding area. As a result, white, non-Hispanics are under-represented in Newark‟s non-uniformed work force.

Although there were a number of statistical comparisons, one was between the City of Newark and Essex County, the county had 42.96 % white, non-Hispanic employees in the non-uniformed ranks compared to Newark's 9.24%.

The decision has a good discussion not only about the statistical basis for finding disparate impact, but how to determine the relevant job market and the correct standard for the business necessity defense.

About the only thing that this case does not stand for is that lawyers are being more receptive to bringing claims on behalf of non-minority plaintiffs. Mr. Meditz represented himself, including at oral argument.

Maybe Not So Ho Hum at the Supreme Court: FLSA and Wal-Mart v. Dukes

In addition to denying cert on the USERRA hostile environment case (see yesterday's post), the Supreme Court yesterday also reversed an FLSA case from the 9th Circuit:

10-1202  CHINESE DAILY NEWS, INC. V. WANG, LYNN, ET AL.
The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit for further consideration in light of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___ (2011). Justice Breyer took no part in the consideration or decision of this petition.

The use of Wal-Mart Stores, Inc. v. Dukes in an FLSA case is a key link for those who are advocating for greater control by the courts of FLSA collective actions.  Unfortunately, as the 9th Circuit opinion shows, while the case is an FLSA case it is also a Rule 23 case on the state law claims.  So, the linkage is not as definitive as one would like.

And according to the Employment Law 360 story ($) Citing Dukes, Supreme Court Vacates $7.7M FLSA Award, which tipped me off to the case, the argument that got the Supreme Court's attention was in fact the 9-0 portion of Wal-Mart v. Dukes:

In its petition, the Chinese Daily News leaned heavily on the decision, in which the Supreme Court unanimously ruled that claims for injunctions or declaratory rulings in class actions typically don’t allow for monetary payments.

For a more aggressive attempt to use the Dukes decision in a pure FLSA context check out the mandamus action recently filed in the 6th Circuit, In Re HCR ManorCare ($). The employer which had been ordered to send notice under the two-step Lusardi standard had challenged the court's continued use of such standard in light of Dukes. Unfortunately, last week, the Court denied the petition.

However, if (like me) you are looking for glimmers of hope, the Court did note  "Moreover, “because mandamus is a discretionary remedy, a Court may decline to issue the writ if it finds that it would not be ‘appropriate under the circumstances’ even if the petitioner has shown he is ‘clear[ly ] and indisputabl[y]’ entitled to it.”

To be fair, the Court did not find that the employer was entitled to the writ. However, with these cases and others, it does appear that small chinks in what heretofore has been a fairly impermeable wall protecting easy passage to conditional certification for FLSA collective actions are beginning to occur.

Although it would be disruptive to the financial income of  lawyers who practice on both sides of the FLSA docket, I can't think of a single trend in employment law that could be more important.

First Monday in October - Ho Hum for L&E Types

Tomorrow marks the start of the Supreme Court's new term, and at least for private sector Labor and Employment types, there's not a lot to get excited about. (From the employer side of the docket at least the Court has not taken a retaliation case!)

In fact, at least according to one of the Justices the Court does not have many exciting civil cases in general for a somewhat surprising reason, Justice Kennedy says fewer “big civil cases” on Supreme Court’s docket due to arbitration.

It's not as if there are none and as always, the SCOTUS Blog is great source of information. The current cases with a labor and employment flavor include:

• 10-553 Hosanna-Tabor Church v. EEOC.  Whether the ministerial exception, which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions, applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship. 
  
  This is actually set for argument in the first week of the Court's term and is a private sector case. As a general rule the lower courts have interpreted the ministerial exception to Title VII broadly, and I would anticipate the same by the Supreme Court.
  
  Update: Although I doubt that it has little relevance to the decision, I was struck by this article, Red Mass Marks Start of Supreme Court Session  from today's New York Times discussing The Red Mass, at least the Supreme Court style which is held on the 1st Sunday in October at St. Matthews Cathedral in D.C.  This Court now consists of six Catholics, three Jewish members and no Protestants.
• 10-1016  Daniel v. Maryland Court of Appeals.  Whether Congress constitutionally abrogated states’ Eleventh Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act.Whether Congress constitutionally abrogated states’ Eleventh Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act.
• 10-1121 Knox v. SEIU.  (1) May a state, consistent with the First and Fourteenth Amendments, condition employment on the payment of a special union assessment intended solely for political and ideological expenditures without first providing a notice that includes information about that assessment and provides an opportunity to object to its exaction? (2) May a state, consistent with the First and Fourteenth Amendments, condition continued public employment on the payment of union agency fees for purposes of financing political expenditures for ballot measures. 

If you were looking for a case that might have some indirect impact, you might look at a case involving EPA procedures

10-1062  Sackett v. EPA.  (1) Whether petitioners may seek pre-enforcement judicial review of the administrative compliance order pursuant to the Administrative Procedure Act, 5 §704; and (2) whether, if not, petitioners’ inability to seek pre-enforcement judicial review of the administrative compliance order violates their rights under the Due Process Clause?

Although I have not compared the statutes I can see some parallels to whistle blower statutes, e.g. Sarbanes Oxley, which allow for pre-hearing reinstatement during the pendency of the case.

Probably more important are potential cases where cert is pending that could be accepted.

• 10-1546  Carder v. Continental Airlines. Whether the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) provide service members a cause of action when their civilian workplace is sufficiently poisoned with harassment based upon military status so as to alter conditions of their employment.
  
  The  5th Circuit decision held as a case of first impression that there was no cause of action. (The matter was handled by Jeff Londa and Flynn Flesher of the Houston office of Ogletree Deakins.)
  
  Update 10.3.11:  The Court has denied cert in today's Order List.
• 10-1163  Opp v. Office of the State's Attorney of Cooke County.  For purposes of the Age Discrimination in Employment Act, who is a worker “at the policy making level”?
  
  Update 10.3.11: The Court has denied cert in today's Order List.
• 11-204 Christoper v. SmithKline Beacham Corp. (1) Whether deference is owed to the Secretary of Labor's interpretation of the Fair Labor Standards Act's outside sales exemption and related regulations; and (2) whether the Fair Labor Standards Act's outside sales exemption applies to pharmaceutical sales representatives.

After last year's blockbuster session on labor and employment issues, it wouldn't be the end of the world for a year without anything of great significance.

On a personal note, I can never note the opening of the Court's new term without remembering fondly one of my former partners, Bob Mebus, who always used the occasion to change to his fall wardrobe. (In Texas a somewhat arbitrary line I can assure you.) Although Bob, who was one of the great traditional labor lawyers in Texas is now retired, I would be surprised if he does not still mark the occasion.