Another Bad Day in the DC Circuit for the NLRB

Today, the D.C. Circuit struck down the NLRB's rule which required all employers over which it had jurisdiction to post a notice advising employees of their rights under the NLRA. National Association of Manufacturers v. NLRB (D.C. Cir. 5.7.13). The majority opinion relied primarily on Section 8(c), the so called "free speech" provision which allows employers to advise employees of their view on unions as long as it is done in a non-coercive manner.

It was a unanimous decision, with two judges concurring only to point out that in their view there was yet another independent basis to strike the rule down.

And with the majority opinion quoting opinions authored by Chief Justice  Roberts and Justice Scalia (and referring to a Justice Thomas concurrence), it is clear that the Court was writing not only for today, but for the anticipated appeal.

In the more than 35 years I have been practicing, I can not remember a time when an agency that was involved in regulating the workplace has been in such disarray. It is hard to see a path to normalcy, and sometimes hard to remember even what that is when speaking of the Board.

Whether in the long term that is a good or bad thing is not yet clear; but that it is taking us to uncharted waters is a certainty.

The Next Protected Class - Ex-cons

The EEOC last year issued some updated guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII.  It laid out a blue print for how to plead a case under Title VII using the disparate impact theory of discrimination.  Although not as common as disparate treatment cases, disparate impact cases tend to have much broader application because one of the requirements is a business practice that is applied uniformly with a disparate impact on a protected category.

Waldon v. Cincinnati Public Schools (S.D. Ohio, 4.24.13) may not be the first case, but it is the first one I have seen where a plaintiff has followed the EEOC's invitation and at least gotten through an initial motion to dismiss.

As on all employment law issues that arise in Ohio, Jon Hyman has a good look at the case here, focusing on the dilemma where an employer has a federal mandate and state statute (in this case H.B. 190) that appear to conflict.

His prediction (or at least hope) is that following state law will meet the exculpatory requirement of business necessity. Maybe Waldon will give us the answer as it progresses, but it is clear that until that issue is definitively resolved there are going to be a number of employers facing tough choices.

But there are many employers who may find themselves having to defend similar actions without even the argument that they are protected by a need to comply with state law. Projecting hot areas of litigation is risky business, but if I had to bet, this is one area I would certainly be looking at.

A Ground Floor Opportunity? Litigation Finance

I really have not had much chance to give the area of third party litigation financing a lot of thought, but my initial instincts are that while it may be good for lawyers, it seems unlikely to be good for clients.  Maybe there is a silver lining somewhere, there often is, but at the moment it escapes me.

However, this article describing the types of folks and money being put in litigation financing makes it clear to me that this is a phenomenon that will be with us at least until the money guys feel like they have given it a fair shot to see if it provides the returns they hope. Litigation Finance: The Next Hot Trend?

I have yet to see it in single plaintiff type employment cases, and except for the few large whistleblowing or qui tam cases, don't see it as likely. But large scale class and collective actions? That I see as a realistic likely place for the world of workplace law and third party litigation financing to intersect.

Talking Money at Work

Today's Wall Street Journal discusses workers willingness to talk with their peers about what they are being paid as a generational change. Workers Share Their Salary Secrets. But as the article notes, in the past many employers prohibited such talk.

Even though such rules may have gone unchallenged, that is one practice that the NLRB has long held infringes an employee's rights under the NLRA. Given that many employers don't think about the NLRB or the NLRA because they don't have a union, my guess is quite a few Journal readers today are saying to themselves, "Wow, I didn't know we couldn't do that."

Before the latest procedural tangle that has ensnared the Board, was making a much greater effort to assert its role in the lives of non-union employers, and I don't see that effort subsiding in the future. Once (if?) we have a duly constituted Board, I am afraid that many non-union employers may be making similar statements more frequently.

Genesis Healthcare Corp. v. Symczyk — A Wasted Opportunity?

I had hoped, although without any real basis, that when the Supreme Court dealt with a collective action case this term, by deciding whether or not an offer that would completely resolve an individual plaintiff's claim prevented a collective action from going forward,  that they might somehow wander into what seems to be an issue never subject to review, what is the standard for conditional certification of a collective action under 29 U.S.C. 216(b).

Instead, what we got, at least according to Justice Kagan's dissent, which had the odd character of being both casual and derisive of the reasoning of both the majority and the 3rd Circuit, was a decision that can be "relegated ... to the furthest reaches of your mind: The situation it addresses should never again arise."  Genesis Healthcare Corp. v. Symczyk  (U.S. 4/16/13).

That holding was assuming, as it said the employee had conceded, the offer made her by the company, did moot her claim, then she had no right to proceed with her collective action on the part of others. Justice Kagan said making that concession was a mistake made by both the plaintiff and the 3rd Circuit, and was in fact something that should never happen again.

What would have made this a precedential case was addressed by Justice Thomas this way:

While the Courts of Appeals disagree whether an unaccepted offer that fully satisfies a plaintiff’s claim is sufficient to render the claim moot, we do not reach this question, or resolve the split, because the issue is not properly before us.

Given that, I think Justice Kagan is close to correct, this is a case that is the "most one-off of one-offs." And she makes a fairly decent argument, joined by the other three members of the liberal wing of the Court, that the answer to the question left open above would be, no.

One wild guess would be that Justice Kennedy was undecided on that issue, and so this was a way for the Court to punt, until he makes up his mind.

In the 5th Circuit, it does undermine the validity of  Sandoz v. Cingular Wireless, LLC (5th Cir. 2008), which had undermined the defense strategy in this circuit. So it presents the opportunity to try it again, and see how the 5th Circuit comes out on the question left unanswered by today's decision.

But ultimately, we really are talking about a relatively small number of cases, when the big question is the standard to apply in conditional certification Is the "lenient standard" really the correct one?

It seems so wrong, that with little substance, plaintiffs can invoke the powers of the court to help them summon a group of fellow would be plaintiffs, who would never have brought a claim on their own. Then there is either a settlement or a costly course of discovery, after which if there is no settlement,  often the court decertifies the class that it conditionally certified.

There was really no basis for the Supreme Court to have addressed that today, but the question remains.

Quorum, Heck a Fully Appointed NLRB?

Doubtful for awhile, but at least five nominees are now pending Senate action., with the announcement today of  the appointment of two new members and the renomination of the current Chairman of the Board, Mark Pearce.  President Obama Announces More Key Administration Posts.


Chairman Pearce is currently the only Board member who has been confirmed by the Senate. The two members of the Board serving under challenged recess appointments, Sharon Block and Richard Griffin, were earlier re-submitted to the Senate for confirmation.

It will be interesting to see how this plays out as the longer the Board continues without a confirmed quorum, the more uncertainty in labor relations is being sown.

And lawyers wonder why ...

Clients might wonder about our priorities.

Mobile devices such as iPads are becoming an essential part of the job for many attorneys. "The fact that you can do so much work today on a small iPad that used to require a heavy, bulky laptop a few years ago is a tremendous leap forward in productivity," said Brett Burney of Burney Consultants. Mobile devices can help attorneys in several ways, such as by allowing them to track billable hours, work while traveling and stay in touch with clients.  (emphasis added)

Actually, this is not really something that can be blamed on lawyers, as this is the PLI Smart Brief synopsis of a story, The Mobile Lawyer, in the ABA Journal.

But, perhaps the fact that someone summarizing what they thought would be most important to lawyers who might be reading it, chose to put tracking billable hours first, tells us something as well.