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Posts Tagged ‘U.S. Supreme Court’

U.S. Supreme Court Holds All Public Employers Are Covered By The ADEA

Posted on: November 9th, 2018

By: Brent Bean

On November 6, 2018, the U.S. Supreme Court issued its long-anticipated opinion in Mount Lemmon Fire Dist. v. Guido, 586 U.S. __ (2018), which FMG previously discussed here.  At issue was whether the Age Discrimination in Employment Act (“ADEA”) applies to all state and political subdivisions, regardless of the size of their workforce.

The ADEA generally prohibits employers from discriminating in their employment decisions against employees over the age of forty.  29 U.S.C. § 621-634.  The ADEA, however, only applies to private sector employers with more than twenty employees.  To that end, ADEA defines “employer” as:

a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. . . .  The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States.  29 U.S.C. 630(b) (emphases added).

The Supreme Court took this case to resolve the circuit split among the Sixth, Seventh, Eighth, and Tenth Circuits on the one hand, all of which had held that the ADEA’s twenty-employee threshold applies to a State or political subdivision, and the Ninth Circuit, on the other hand, which ruled that the ADEA’s twenty-employee minimum does not apply to those employers.

Writing for a unanimous Court, Justice Ginsburg held that the plain language of the statute, “also means,” is additive, rather than clarifying.  As such, there is no twenty-employee threshold for a State or political subdivisions.  The Court rejected the fire district’s argument that the ADEA should be analogized to Title VII, where numerical limits apply to private and public sector employers with equal force.  Instead, Justice Ginsburg wrote, the ADEA, amended in 1974 to cover state and local governments, was more akin to the FLSA, amended that same year, which has no workforce limit.

Accordingly, the ADEA applies with greater scope to cover all state and political subdivisions without limitation to the size of their workforce.  We recommend that public sector employers, especially those which have smaller workforces, revisit their handbooks and training on complying with, and avoiding litigation under, the ADEA.

If you have any questions or would like more information, please contact Brent Bean at [email protected].

Is “Birthright Citizenship” Subject To Revocation By A Presidential Executive Order?

Posted on: October 30th, 2018

By: Ken Levine

citizenship

During an interview by Axios on October 29, 2018, President Trump declared that he was about to sign an executive order to abolish birthright citizenship in the United States. While the President insisted that birthright citizenship, a concept enshrined in the 14th Amendment of the U.S. Constitution, could be revoked via executive order, it is an understatement to say that the constitutionality of such an order would be dubious.

The 14th Amendment of the U.S. Constitution provides, in part, that all individuals born in the United States, and subject to the jurisdiction of the laws of this country, are automatically U.S. citizens. Any amendment to the U.S. Constitution requires a 2/3rd majority in both houses of Congress or a constitutional convention called for by two-thirds of the State legislatures.

Furthermore, the issue of birthright citizenship has already been comprehensively addressed in the 1898 U.S. Supreme Court case of U.S. vs. Wong Kim Ark, 169 U.S. 649. The issue at hand in the case was whether a child born in the United States to Chinese citizens, who were temporarily residing in the U.S., was automatically a U.S. citizen by operation of law. In a 6 to 2 decision the Supreme Court determined that the 14th amendment, which was passed after the U.S. Civil War, guaranteed U.S. citizenship to all individuals born in the United States, no matter the citizenry of the child’s parents. The decision reiterated that the 14th amendment does however exclude birthright citizenship for the children of foreign diplomatic officers, which is the sole exception.

Eminent constitutional scholars around the U.S. have already weighed in on this issue and have spiritedly validated that the U.S. Constitution not only guarantees birthright citizenship, but that a unilateral Presidential Executive Order cannot amend the constitution. It is unclear at this time whether President Trump will actually move forward with this executive order.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Ken Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected]

U.S. Supreme Court to Decide Whether Age Discrimination Statute Applies to Small Public Employers

Posted on: September 27th, 2018

By: Brent BeanKoty Newman

The U.S. Supreme Court recently granted certiorari in Mount Lemmon Fire Dist. v. Guido, 200 L. Ed. 313, (U.S., Feb. 26, 2018), to determine whether the Age Discrimination in Employment Act (“ADEA”) applies to state political subdivisions, regardless of size.

Generally, the ADEA prohibits employers from discriminating against individuals based on the individual’s age if that individual is at least forty years of age.  29 U.S.C. § 621-634.  But who qualifies as an employer for the purposes of the ADEA?  The ADEA defines “employer” as:

a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. . . .  The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States.  29 U.S.C. 630(b).

The Sixth, Seventh, Eighth, and Tenth Circuits have all held that the ADEA’s twenty-employee threshold applies to state political subdivisions.  However, the Ninth Circuit recently disagreed and ruled that the ADEA’s twenty-employee minimum does not apply to state political subdivisions, reasoning that the statute can be read to include all state and political subdivisions without the cap.

In the case before the Ninth Circuit, John Guido and Dennis Rankin were hired in 2000 by the Mount Lemmon Fire District.  They were the two oldest full-time employees of the Fire District when they were both terminated on the same day, June 15, 2009.  The district court dismissed their case, agreeing with the Sixth, Seventh, Eight, and Tenth Circuits that the ADEA twenty-employee requirement applies to state political subdivisions.  However, on appeal, the Ninth Circuit reversed, accepting the argument that the word “also” in the statute supports the proposition that there are three distinct groups of employers: (1) private employers who employ twenty or more employees; (2) their agents; and (3) state public employers regardless of how many people they employ.

Despite these arguments, the Fire District has a “powerful rebuttal,”—as the Ninth Circuit recognized but ultimately dismissed—because it has the weight of four other circuits on its side, who have all declared 29 U.S.C. § 630(b) to be ambiguous.  The Fire District asserts that the “also means” sentence in § 630(b) “clarifies what the first includes,” and therefore does not create a separate distinct category of public employer that is not subject to the ADEA’s twenty-employee threshold.

The Supreme Court has scheduled argument for October 1, 2018.  Thus, it will not be too long before the legal world can start reading the tea leaves regarding the Justices’ reactions to the parties’ arguments.

If you have any questions or would like more information please contact Brent Bean [email protected] or Koty Newman at [email protected].

Coffee, Water, Less Than 20 Minutes

Posted on: June 19th, 2018

SCOTUS KICKS THE CAN ON SHORT BREAKS COMPENSATION

By: John McAvoy

On June 11, 2018, the U.S. Supreme Court refused to entertain the appeal of a Pennsylvania employer that could have resolved the emerging split of authority between the federal appellate courts and the U.S. Department of Labor (DOL) as to the compensability of employees’ short rest breaks.

In American Future Systems, Inc. d/b/a Progressive Business Publications v. R. Alexander Acosta, Secretary, U.S. Department of Labor, the Secretary of Labor filed suit against Progressive Business Publications, a company that publishes and distributes business publications and sells them through its sales representatives, as well as the company’s owner, alleging they violated the Fair Labor Standards Act (FLSA) by paying their salespeople an hourly wage and bonuses based on their number of sales per hour while they were logged onto the computer at their workstations, and by not paying them if they were logged off for more than 90 seconds.

The U.S. District Court for the Eastern District of Pennsylvania previously found that the employer’s policy had violated the FLSA, relying on a DOL regulation which states that “[r]est periods of short duration, running from 5 minutes to about 20 minutes, are common in industry.  They promote the efficiency of the employee and are customarily paid for as working time.  They must be counted as hours worked.”  In so holding, the District Court found that the employer was liable for at least $1.75 million in back wages and damages.

On appeal to the Third Circuit Court of Appeals, the employer argued that that it provided “flex time” rather than “breaks,” which allowed workers to clock out whenever they wanted, for any reason.  In other words, that the employees were not “working” after they logged off of their computers since they could do anything they wanted, including leaving the office.  The appellate court rejected this argument, reasoning that to dock the pay of employees who can’t manage a bathroom sprint is “absolutely contrary to the FLSA,” and affirmed the lower court’s decision.

The Third Circuit’s reliance on DOL regulation was contrary to the holdings of some of the other circuit courts which opted to assess the circumstances of the break in lieu of interpreting the DOL regulation as a bright-line rule that fails to take into consideration the facts of a particular situation.

The employer asked the U.S. Supreme Court to clarify how compensability for breaks should be determined.  Citing the circuit split, the employer posited that the question of break pay should be determined by assessing the circumstances of the break, rather than adopting the DOL regulation as a bright-line rule.  In its reply brief, the DOL fervently defended its regulations and denied the existence of the alleged circuit split, arguing that “hours worked [are] not limited to the time an employee actually performs his or her job duties.”  Unfortunately, this remains an issue for another day as the Supreme Court refused to hear the case and/or resolve the alleged split.

Absent a decision from the Supreme Court to the contrary, employers in Pennsylvania, New Jersey, and Delaware are bound by the Third Circuit’s decision. As such, employers in these states must continue to comply with DOL regulations with respect to the compensability of short breaks.

Fortunately, the applicable DOL regulations are designed to protect employers’ rights. For starters, the regulations recognize that meal periods serve a different purpose than coffee or snack breaks and, as such, are not compensable.  Second, an employer need not count an employee’s unauthorized extensions of authorized work breaks as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer’s rules, and any extension of the break will be punished.

Although an employer will have to compensate an employee who repeatedly takes unauthorized breaks lasting less than 20 minutes in order to comply with the Third Circuit’s ruling and the applicable DOL regulations, the employer is nevertheless free to discipline the employee for such indiscretions by whatever means the employer deems appropriate, including termination.

Prudent employers should prepare themselves to address such issues through smart planning and proper training of employees, including managers, supervisors and HR personnel to ensure the employer’s break, discipline, and termination policies and procedures comply with all applicable DOL regulations.

Want to know whether your company’s break, discipline, and termination policies and procedures comply with DOL regulations? Let me help. Please call or email me (215.789.4919; [email protected]).

High Court OKs Employers’ Use of Class Waivers

Posted on: May 23rd, 2018

By: Paul Derrick

Class action waivers in employment arbitration agreements are enforceable under the Federal Arbitration Act (FAA), says the U.S. Supreme Court in a much-anticipated decision.

The Supreme Court’s long-awaited decision resolves a circuit split on whether class or collective action waivers contained in employment arbitration agreements violate the National Labor Relations Act (NLRA). By a 5-4 margin, the Court ruled that, under the FAA, arbitration agreements providing for individualized proceedings, rather than class or collective actions, are enforceable.

Arbitration agreements that require employees to pursue work-related claims in arbitration, rather than in court, have long been enforced pursuant to the FAA. Six years ago, however, the National Labor Relations Board decided that employers violate the NLRA when they require employees, as a condition of employment, to agree that they will resolve workplace disputes individually pursuant to an arbitration provision containing a class or collective action waiver.

The Supreme Court’s opinion makes it clear that the Board and various courts were wrong in believing that the NLRA trumps the FAA.  It noted that that nothing in a class or collective action waiver interferes with an employee’s right to participate in a union or engage in collective bargaining.

So, what does the Court’s ruling mean for employers right now?

First, they should look at their arbitration agreements and consider modifying them to include class action waivers if they are not already included.

Second, they should consider including an arbitration agreement and class waiver provision as part of their onboarding paperwork (but remember such clauses should not be included within the text of an employee handbook).

Finally, employers should expect that there is more litigation yet to come as employees and unions angle for ways to get around the Supreme Court’s decision.  Especially in states such California, there are other avenues by which employees can still maintain class and collective actions as a means of redressing their workplace disputes.  Despite these anticipated end-run attempts, employers should rest better knowing that the Supreme Court has explicitly approved the use of class action waivers in arbitration agreements.

If you have any questions or would like more information about this or any other labor law issue, please contact Paul Derrick at [email protected].