Important, But Not What I Was Hoping - Petition for Certiorari on FLSA Action

In my in box this morning was a press release from the Retail Litigation Center, that made my hopes soar that at long last the Supreme Court could have a vehicle for answering what I think is the one issue most in need of addressing in today's employment law world: what is required before a district court conditionally certifies a collective action under the FLSA?

The headline read, RLC Urges Supreme Court to Review Class Action Standards in FLSA Suits. But a careful reading of both the release, and even more so the excellent amicus brief filed in support of the request for certiorari, dashed my hopes. 

The current effort is to reverse the 7th Circuit's action in a Rule 23 class action based not just on the FLSA, but the Illinois wage law. The case is RBS v. Ross.  And so the fight, and as I say, still an important one, is over the correct application of Wal-Mart v. Dukes.

But still to come is the case focused on a collective (not class) actions under 29 U.S.C. 216(b).  For those of us who practice where FLSA cases are brought by themselves, not as dual cases under a state wage law, the issue of how low the bar is for conditional certification, is for employers, a terribly expensive question.

As an illustration, here is a brief procedural overview of a case I handled:

• Plaintiffs case filed by three individuals alleging they were forced to work off the clock. (One individual subsequently dropped his claim).
• Collective class conditionally certified under the existing standard.
• Over 17,000 notices mailed to potential class members.
• Approximately 1,100 written consents to join lawsuit filed.
• Approximately 40 depositions taken.
• Motion to decertify class granted, dismissing all but the two original plaintiffs.
• Jury trial held on the forced to work off the clock claims of the two original plaintiffs. Complete verdict for the defense.

Clearly not all such cases end with such a definitive determination that the initial case was without merit. However, it does make clear that an artificially low standard is a burden not only to employers, but the court system, and one that needs addressing.

It is already many millions of dollars late.

Been Sued by the EEOC Lately? Keep an Eye on Your Mailbox in the Next Couple of Weeks

An article on the SHRM site, September: Rush Hour for EEOC Lawsuit Filings, Settlements ($), reminded me that we are nearing the witching hour for the filing of EEOC lawsuits. The reason is of course the end of the government's fiscal year on September 30,  and its reporting period.

I have always noticed the uptick in suits where the EEOC is plaintiff in the last half of September, but even I was shocked at this tidbit that SHRM reported:

In 2011, the EEOC filed 175 of its record-high 261 lawsuits during the last quarter of its fiscal year, and most of them were filed in September

Not that I am faulting the EEOC for this. They are after all just lawyers, and many of us suffer from the same result, we work backwards from a deadline, and inevitably much closer to the deadline than we probably should.

Readers' Requests: Nannies' Rights and Mental Illness in Academia

This may be a first in 10 years of blogging, but I have recently received two (non-spam) requests for certain stories to be posted here that I have decided to follow.

Unlike the requests which are clearly shot-gunned to a number of bloggers since they have no relevance to a blog focused on employment law, these two are relevant.  One is from a for profit company and the other from a law student.

From the for profit world, is a request to link to an article on the employment law rights of nannies.  Because wage and hour law for nannies can be tricky, I would not without checking (which I have not) vouch for all the wage and hour advice, but I think it is a worthwhile post. Although nannies vary widely in age and sophistication, it is sometimes an entry into the workforce and being knowledgeable of one's rights is important. 

If interested see, Employment Rights All Nannies Need to Know.

This is also in a very small way a tribute to my mother, who paid our part-time maid in cash, but had a separate jar that she set aside to put the withholding for social security among other things that she dutifully reported. It was a way to both comply with the law and educate on how social security etc worked to someone who had probably never been paid properly before. For a small town in Texas in the 50's I have to believe that doing so, like my mother who got her doctorate at age 60, was unique.

The second request is from a law student, who self-identifies as having a mental illness and requests I post a link to a critique of the Americans with Disabilities Act in the way it deals with mental illness. The author, Gregory M. Duhl, identifies himself as a "law professor with Borderline Personality Disorder."

Here's the abstract:

This essay is about “madness” in higher education. In Mad at School: Rhetorics of Mental Disability in Academic Life, Professor Price analyzes the rhetoric and discourse surrounding mental disabilities in academia. In this essay, I place Price’s work in a legal context, suggesting why the Americans with Disabilities Act fails those with mental illness and why reform is needed to protect them. My own narrative as a law professor with Borderline Personality Disorder frames my critique. Narratives of mental illness are important because they help connect those who are often stigmatized and isolated due to mental illness and provide a framework for them to overcome barriers limiting their equal participation in academic life.

Here is the link to: Over the Borderline: A Review of Margaret Price's Mad at School: Rhetoric of Mental Disability in Academic Life.

Although I have not read the essay, certainly the object of minimizing the stigma and isolation of those with mental illness is a noble one.

Thanks to my readers who made the requests.

A New Source of Business: TMI

Truth be told, people who do what I do, represent employers in disputes with their employees really don't need new sources of business. Still an article in today's New York Times, Sharing Too Much Information in the Workplace, relays complaints by older managers about comments made by 20 year olds in the workplace, indicates there's always some trend that ends up resulting in more lawsuits.

Some e.g. - asking a manufacturing manager how many times they can miss work before they will get fired or advising that they are seeking another job that will take 6 to 8 months to land. And those are just the not very politic ones by kids who obviously are not sensitive to the ways managers think.

Terminations are the primary driver of employment law litigation and the folks who get terminated are the ones who do stupid things or don't fit in. TMI can often put you squarely in both camps.

The Difference an Ocean Makes

I have recently started receiving email updates from The Global Legal Post, a publication that purports to cover the legal community world-wide. In March 2012, they incorporated the European Lawyer into the publication and so it definitely has a European/British flavor to its reporting.

Which made me smile today when my email contained this teaser:

Row over non-lawyer ownership of legal firms The US's largest legal profession trade union is in disarray over the contentious issue of non-lawyer ownership of law firms, with its senior figures unable to agree a policy.

Not because the American Bar Association is having trouble reaching consensus on an issue, but the description of it as the "largest legal profession trade union." My emphasis.

I am quite sure that many lawyers, and not just at management side employment law boutiques, would be surprised to think of themselves as "trade unionists." But maybe a different way of thinking of ourselves would not be an entirely bad thing.

More FLSA Common Sense from the 5th Circuit - Settlement Without Supervision OK

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.

In a real compliment to District Judge Xavier Rodriguez, who sits in San Antonio, the court adopted his reasoning in his 2005 decision,  Martinez v. Bohls Bearing Equip. Co.  As I noted in my post about the Bohls Bearing case at the time, Challenging Conventional Wisdom - Private Settlements of FLSA May Be OK, it was unclear how far one can go without getting approval, but clearly there is some area where court and DOL approval are not required in order to have a valid FLSA settlement agreement.

And that is not only good news, but common sense.

Stirrings on Smith v. Xerox in 5th Circuit Internecine Squabble

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.