After lamenting for some time the direction which FLSA law has been heading, it may be too soon to say that the inevitable swing back to the middle has begun, but there are encouraging signs and last week's decision in Martin, et al v. Spring Break '83 Prodn, L.L.C(5th Cir. 7.24.12) is yet another step.
When there was a dispute over time worked by the lighting and rigging technicians on that now famous film, Spring Break '83, the production company and the union reached an agreement, money was paid and accepted, and of course a law suit was filed.
The first argument was that the individuals who had brought the suit had not signed the settlement agreement, but the Court found the Union was their authorized representative.
More importantly, the individuals argued that the settlement was not permitted under the terms of the FLSA, because it was not approved by a court or the DOL. In a case of first impression, the Court found that this was not the type of case where that prohibition applies. This was not a challenge to substantive FLSA rights, but merely settlement of a disputed liability.
More than two years ago, I expressed my hopes that the 5th Circuit would undertake an en banc review of the panel decision in Smith v. Xerox, a decision that answered whether a mixed motive was available in a retaliation claim after the Supreme Court's Gross decision. See 5th Circuit En Banc Request on Smith v. Xerox, Please! Alas, it was not to be as the case settled before there was any further review.
But this week, in another request for en banc review, a relatively rare dissent to the denial of a petition for such review proved that there are at least some judges on the Court who feel that the case was wrongly decided and wish to have the entire court revisit it. Although in Nassar v. University of Texas Southwestern Medical Center (5th Cir. 7.20.12), the Court by a vote of 6 to 9 voted not to hear the case en banc, it seems possible that it was because the defendant in that case may have waived the argument. Much of the discussion was about that issue and why panel did not directly address it. At least one member of the panel, Judge Elrod, specifically said that was her basis in an unusual concurring opinion to the denial.
But it is Judge Smith's dissent to the denial of the en banc review that really caught my attention. Joined by Chief Judge Jones and Judges Jolly and Clement, Judge Smith wrote:
The panel decision in Smith should be overruled. It is an erroneous interpretation of the statute and controlling caselaw and created an unnecessary circuit split. The problems wrought by the Smith panel majority are convincingly explained in Judge Jolly’s panel dissent, to which I defer. See Smith v. Xerox Corp., 602 F.3d 320, 336-40 (5th Cir. 2010) (Jolly, J., dissenting). Unfortunately, shortly after the panel issued its majority opinion and dissent, and before a petition for en banc rehearing was filed, the parties settled. That mooted the case and deprived the en banc court of the chance to correct the error in the panel’s misapplication of Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009).
If nothing else, it would be good to see the en banc court have a case to consider where waiver was not an issue, so we could get a determination whether or not Smith really is good law, as opposed to just being the current controlling law in the 5th Circuit.
It is unlikely when I put down some thoughts about the EEOC's failure to use certified mail in sending out right to sue letters (For lack of a green card .... ), 10 years ago today that I gave any thought as to whether I would still be (at least occasionally) making such public comments a decade later.
But I am.
There were some other practice specific blogs when I began, but to my knowledge Jottings was the first that focused on labor and employment law. Two other pioneers, Michael Fitzgibbons and George Lenard joined shortly after. Now, to use some computer industry jargon, there are a large number of individuals and groups who occupy this space.
In the initial days, I must admit I enjoyed the thrill of being the first to post about a new decision or other development. Oddly enough, I even felt some sort of responsibility (for what was probably my readership of less than a dozen) to provide the information as carefully as possible.
Although the title of the blog denotes the perch from where I observe the world of work, I have tried to at least make sure that I took into account that on almost any topic I might post about, there is a different perspective, that deserved if nothing else my serious consideration and treating it (and those who hold it) with respect.
For those who might consider embarking on a similar adventure, and view it primarily as business development tool, you would be hard pressed to utilize me as an example of how well that works. On a cost benefit analysis, if I had put as much time into other forms of business development as I have spent on the blog, I would probably have developed more business.
But more importantly, I think writing the blog has contributed to keeping me abreast of the developments that have occurred over the past decade, and made me a better lawyer, one who happens to represent employers.
And in a world where the legal profession too often seems to me more about business and less about lawyering, I remain comfortable with the choice I have made.