Supreme Court Limits First Amendment Rights For Public Employees

While yesterday's Wal-Mart decision is getting all the press, the U.S. Supreme Court issued another decision yesterday that will have broad impact on public employees.  In Borough of Duryea v. Guarnieri, the Supreme Court limited public employees' First Amendment right to petition the government for redress of grievances.

The facts are straightforward.  Charles Guarnieri filed a grievance when he was terminated from his position as Chief of Police in Duryea, Pennsylvania.  He was ordered reinstated, and the borough council later issued directives instructing him how to perform his duties. He filed a second grievance, and an arbitrator ordered that some of the directives be modified or withdrawn.  Guarnieri then filed suit, claiming than the directives were issued in retaliation for the filing of his first grievance, and violated his First Amendment right to petition the government for a redress of grievances.  Guarnieri won at trial, and the Third Circuit Court of Appeals affirmed, holding that a public employee who has petitioned the government through a formal mechanism such as the filing of a lawsuit or grievance is protected under the Petition Clause from retaliation for that activity, even if the petition concerns a matter of solely private concern.

The Supreme Court reversed, holding that a government employee is not protected by the petition clause unless the petition relates to a matter of public concern.  In doing so, the Court applied the same limitations it previously had applied to the First Amendment's Speech Clause to the Petition Clause.  The Court dismissed the fact that most governmental petitions are of a private nature, because, in their view, "Petitions, no less than speech, can interfere with the efficient and effective operation of government."

While this case does make the law consistent when it comes to public employees attempting to exercise their rights under the First Amendment, it is consistently wrong.  This case continues the line of jurisprudence that effectively gags public employees.  These cases allow government officials to retaliate against public employees under circumstances that clearly would be illegal when applied to private citizens.  In my view, the First Amendment is the foundation of our rights as a free people, and should be interpreted broadly, and apply equally to all.

Connecticut Outlaws Gender Identity Discrimination

Along with the landmark paid sick leave law discussed yesterday, the Connecticut General Assembly also has outlawed discrimination based upon gender identity or expression. 

House Bill 6599, passed on June 4, makes it illegal to discriminate based upon a person's "gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth."  The prohibition is comprehensive, applying not just to employment, but also to housing, state contracts, higher education, library services, utility services, automobile insurance, trade, public accommodations, credit, state services and golf club memberships.  This enormous step forward in LGBT rights, which Governor Malloy intends to sign, will take effect on October 1, 2011.  The employment provisions are extremely broad, as they apply to every employer in Connecticut with at least three employees.


I can't tell you how gratifying it is that my home state is working to swing the pendulum back towards protecting the rights of human beings, instead of corporate "persons."

Connecticut Becomes First State To Require Paid Sick Leave (For Some Workers)

Hallelujah!  My home state, Connecticut, has just passed the first law in the country requiring employers to offer paid sick leave.  Governor Malloy has already said he will sign the bill into law.

The law requires employers to provide one hour of paid sick leave for each 40 hours worked, up to a maximum of 40 hours (5 full days) per year.  Employees are allowed to carry over up to 40 unused hours per year.  Employees can begin using the sick leave after they have worked 680 hours (17 full weeks).  Paid sick leave can be used for the employee's health condition, including treatment or preventive care, or the health condition of a child, parent or spouse.  Special provisions of the law apply to victims of domestic violence.

The law is not perfect.  It does not apply to all employers; only those with 50 or more employees are covered.  In addition, manufacturing companies and nationally chartered nonprofit organizations are exempted from coverage.  The law also does not apply to all employees.  Only hourly workers, not salaried, are covered.  In additions, day laborers, temporary workers, part-time and adjunct faculty at state colleges and independent contractors are excluded.

Still, this is a great start.  Once this law goes into effect, the dire predictions of its opponents will be shown to be nothing but hot air.  At that point, we may be able to expand it to cover salaried workers, smaller employers, manufacturers, etc.  And once that happens, lets hope the good example of Connecticut will lead other states to do the same.

Is The Average CEO Really Worth That Much?

2010 was a great year, if you happen to be the CEO of a major corporation.  USA Today has reported that median CEO pay went up 27%, to $9 million in 2010.  Compare this with the average worker, whose pay rose a whopping 2.1%.  According to a paper by Professor G. William Domhoff of the University of California at Santa Cruz, "The ratio of CEO pay to factory worker pay rose from 42:1 in 1960 to as high as 531:1 in 2000, at the height of the stock market bubble, when CEOs were cashing in big stock options. It was at 411:1 in 2005 and 344:1 in 2007, according to research by United for a Fair Economy. By way of comparison, the same ratio is about 25:1 in Europe."

This data reinforces my belief that there is something fundamentally broken in our system.  As noted by Professor Domhoff, in 2007 the top 1% of American households owned 34.6% of all privately held wealth, while only 15% of the wealth was owned by  the bottom 80%, who are the workers in the economy.  Between 1983 and 2004, 42% of the new financial wealth created in the U.S. economy went to the top 1%, 94% went to the top 20%, while the bottom 80% received only 6%.  Think about that.  Of all the new financial wealth generated in the United States during the '80s, '90s, and early 2000s, only 6% went to the working class.  We are rapidly turning into a plutocracy (if we're not there already).

During the first Gilded Age, there was a realization that such concentration of wealth was bad for the country.  Theodore Roosevelt spearheaded progressive policies to try to rein this in.  But in this new Gilded Age, we have one political party that not only is unwilling to help the worker, but is dead set on avoiding anything that could be considered a limitation on the freedom of corporations to do what they want.  Where is this generation's T.R.?

Good News -- Employment Is Up!

The Bureau of Labor Statistics released its report on March employment figures.  The good news is that non-farm employment is up by 216, 000, almost 10% more than predicted.  The BLS reports 230,000 new private sector jobs, with 14,000 fewer local and state government jobs.

This is the best monthly showing for new jobs (excluding the one-time bump for temporary census workers last spring) since March, 2006.  At the same time, the unemployment rate was little changed at 8.8 percent, while the number of unemployed fell to 13.5 million. The "U-6" unemployment rate, which includes people with part-time jobs who want to work full time, as well as a portion of discouraged workers who are no longer looking for work, fell from 15.9 to 15.7 percent.  The number of long-term unemployed (those jobless for 27 weeks or more) increased from 6.06 million to 6.26 million.

The bad news is that we're still a long way away from getting back to where we were before the start of The Great Recession.  Since December, 2007, we've lost about 8.4 million jobs.  At current hiring rates, we won't reach the pre-recession peak level until January of 2014.  But, on the whole, I'll take the good news.

The Risks Of The Wal-Mart Class Action

The U.S. Supreme Court heard oral argument yesterday on the Wal-mart Class Action.  This case has me worried.

The lawsuit is a giant class action about gender discrimination -- potentially the largest class action in history.  A group of women sued Wal-mart in 2001, claiming that the company systematically discriminates against women in both pay and promotional opportunities.  After years of litigating, and after reviewing statistical evidence showing that hourly and salaried female employees receive lower pay and less advancement opportunities than do males, the trial court certified the case to proceed as a class action.  This decision was upheld by a 6-5 decision of the 9th Circuit Court of Appeals in California.  Wal-mart then requested review by the Supreme Court.

The issue before the Supreme Court is not whether Wal-mart discriminates.  Rather, it is whether the case can proceed as a class action.  If not, each of the hundreds of thousand women who are potential class members would be required to file her own individual lawsuit.  What is at issue is the "commonality" requirement for class actions -- whether or not the claims of hundreds of thousand women, who worked at 3,400 stores under tens of thousand different managers, are sufficiently related to allow the case to be treated as a class action.  Wal-mart's argument is, essentially, that a class this size simply cannot, as a matter of law, meet the commonality requirement.  This argument was rejected by the trial court and the 9th Circuit.

I am worried about this case because it presents the corporatist majority on the Supreme Court, led by Chief Justice Roberts, a golden opportunity to eviscerate the class action mechanism.  By way of disclosure, I am a class action lawyer.  As an employee rights advocate, I have found one of the most effective ways to hold a large company accountable for systemic wrong-doing is the class action.  Which is a major reason why large corporations hate class actions and would love to see it become much more difficult to proceed with a class action.  And as the Citizens United decision makes clear, the current Supreme Court is much more concerned with the rights of corporations that with the rights of individuals.  And while the Court occasionally surprises me, I fully expect this decision to be in line with Citizens United.  And that will make it much more difficult for employees to band together to fight against illegal and unethical conduct by large employers.

Why Pay The Peons When You Can Just Make Them Work For Free?

I saw this post on Crooks and Liars, and my head exploded.  It's an article about how the next big thing for businesses is to use unpaid interns instead of paid workers, and corporate overlord types are salivating over the idea.  I guess it's the logical next step.  After driving down wages and benefits as much as possible, what could be better for the bottom line than not paying workers at all?

What really gets me is how excited these corporate hacks sound over the prospect of screwing their workers.  Sure, it's great for the company not to have to pay anything for its labor force.  But what happens when, as the Fortune article suggests, this becomes "the new normal?"  Henry Ford was smart enough to know that workers need to be paid a decent wage so that they can afford to buy your product.  Who is going to be able to buy Remote Stylist's "web-based interior design services" if this type of modern indentured servitude becomes the norm?  Actually, this is worse than indentured servitude, because at least then the employer was obligated to provide food, lodging and other necessities.

And what about the people who agree to this?  It's one thing for a student to serve as an unpaid intern in order to get some job experience -- the type of internship that has been common for years.  It's another thing entirely for a company's business model to be based on the use of unpaid workers.  I wonder about the woman quoted in the Fortune article who is happy to have the "job," even though she's down to $1.50 in her checking account.  What is she going to do if her boyfriend stops paying her bills?  How is she going to buy food?

And the line that really gets me in this article is "Unfortunately for many employers hoping to use unpaid labor to advance their business goals, there are strict federal and state rules that workers must be paid the minimum wage and paid for overtime, and must abide by other provisions in the Fair Labor Standards Act, which applies to about 135 million people working for 7.3 million employers."  Are you kidding me? It's "unfortunate" that the law requires you to pay the peons a measly $7.25 an hour?  What is wrong with these people?

We live in a world where GE can earn $14.2 Billion and pay zero in taxes.  But even in this corporatist climate, a company that makes a conscious decision to rely on unpaid labor is beyond the pale.  And the executives who think this is the greatest thing since sliced bread are simply reprehensible human beings.

New EEOC Regulations Make It Easier To Prove Disability Discrimination

In 2008, Congress passed the ADA Amendments Act.  The law overturned several Supreme Court decisions that had narrowly interpreted the definition of "disability" under the Americans with Disabilities Act.  Today, the EEOC has issued new regulations implementing the ADAAA.

Among the changes:

• Whether a physical impairment is considered to be a disability should be construed as broadly as possible.
• A physical impairment need not prevent or severely or significantly restrict performance of a major life activity to be considered a disability.
• “Mitigating measures,” such as medication and assistive devices like hearing aids, must not be considered when determining whether someone has a disability. 
• Episodic impairments, such as epilepsy, or impairments that are in remission, such as cancer, are disabilities if they would be substantially limiting when active.
• The regulations also make it easier for individuals to be “regarded as” having a disability, focusing on how the person was treated rather than on what an employer believes about the nature of the person’s impairment.
  
  The ADAA and these new regulations became necessary because federal courts have been particularly hostile to the ADA.  While the language of the ADA is very broad, courts have interpreted it in such a way that it became almost impossible to prove both that you were disabled and that you were still capable of performing the essential functions of a job.  Indeed, it had gotten so bad that my practice had been to advise victims of disability discrimination to ignore the ADA and bring their claims just under Connecticut law, which is much more employee-friendly.  The ADAAA and the new regulations have breathed new life into the ADA.  Let's hope that conservative, business-oriented judges get the message this time and don't start a new round of limitations on the law.
  
  You can get more information on the ADAAA and the new regulations from the EEOC by clicking here.

Unemployment Benefits Slashed In Michigan

What is it with Governor Rick Snyder and the Corporatist Republicans who are running Michigan?  On the heels of outlawing worker safety rules, the Michigan legislature has just voted to slash unemployment benefits.

Instead of 26 weeks of benefits, starting in January 2012 new claimants will only be able to collect unemployment for 20 weeks.  Thus, Michigan is now the only state that offers fewer than 26 weeks of state unemployment benefits.

This makes no sense.  In January, 2011, the seasonally adjusted unemployment rate in Michigan was 10.7%, while the national average was 8.9%.  In 2010, the average length of unemployment in Michigan 40 weeks.  As of November 30, 2010, about 162,000 people in Michigan had exhausted the extended 99 weeks of federal benefits.  And the Republican-controlled legislature thinks it's a good idea to cut benefits?!!?

In the meantime, Governor Snyder wants to cut corporate taxes by 86%.  Talk about a corporate tool!

Workplace Safety Rules Are Now Illegal In Michigan

Yes, you read that correctly.  Michigan's Corporatist governor, Rick Snyder, signed a bill that outlaws workplace ergonomics regulations.  Ergonomic rules are designed to prevent injuries caused by lifting, bending, repetitive motions, etc.

How stupid is this?  In the interests of "competitiveness," the State of Michigan has decided not only that it is ok for workers to be injured on the job, but that attempts to lessen the likelihood of injury are illegal!  And will this really make Michigan more "competitive?"  Have they factored in the hidden costs, in things like lost time and productivity and increased workers' comp payments?  This is just another example of Republicans placing corporate interests above those of human beings.

Can I Be Fired For Making An Oral Complaint?

If the complaint is of a violation of the Fair Labor Standards Act ("FLSA"), the answer is "no."  That's what the U.S. Supreme Court held today in the case of Kasten v. Saint-Gobain Performance Plastics Corp.

Kevin Kasten complained to his bosses about the location of the time clock at work.  Specifically, he complained that the location prevented workers from getting paid for the time spent putting on and taking off their protective gear.  Under the FLSA, employees are required to be paid for such "donning and doffing" time.  Mr. Kasten complained to his supervisor, to HR, to his lead man and to his Operations Manager that he thought the location was illegal and the company would lose if it ever went to court.  When he was fired, Mr. Kasten sued under the FLSA's anti-retaliation provision, which makes it illegal "to discharge or in any other manner discriminate against any employee because such employee has filed any complaint . . . ." under the FLSA.

Mr. Kasten's suit was tossed out of court, on the grounds that the FLSA's anti-retaliation only applies to written complaints.  The Seventh Circuit Court of Appeals in Chicago agreed, so he took it all the way up to the U.S. Supreme Court.  And won.  The court held, in a 6-2 decision (Justice Kagan did not participate), that the "filed any complaint" language includes oral as well as written complaints.

Justices Scalia and Thomas dissented (gee, there's a surprise).  In their view, Mr. Kasten should lose, not because his complaints were oral rather than written, but because they were made to the employer rather than to the government.  In their view, the only way a complaint can be "filed" is with the government.  The majority declined to reach this issue, so it remains an open question.  In my view, this narrow, restrictive view undermines the goals of the FLSA and unfairly punished employees who choose to take the lesser, and perhaps more reasonable, step of complaining internally before escalating to the point of calling the government.

Regardless of this open question, this case is a nice victory for workers.  We need more like it.

How Do You Survive On Minimum Wage?

While perusing The Daily Kos this morning, I ran across this post, which asks the question, "How the hell does someone live on $7.25 an hour?"  Which got me to thinking, "Yeah, how does somebody live on minimum wage?"

If you work 40 hours a week at the federal minimum wage of $7.25 an hour, that's $290 a week, $1,257 a month, or $15,080 a year, before taxes.  Take out 10 percent for taxes, that leaves you with $1,132 a month.  Now let's say you're lucky enough to find an apartment for $500 a month.  You're down to $632 left.  But wait -- you need a car to get to work.  And gas is almost $4 a gallon.  If you drive 1000 miles a month, and get 25 miles to the gallon, you're spending about $150 a month on gas.  That leaves you with $482.  Do you own the car outright?  If not, you've got a car loan.  We'll be conservative and call that $150 a month.  You're at $332.  Plus, you still have to pay for phone and utilities -- let's call that another $100 a month.  That leaves you with $232 a month for food, clothing, health insurance, car insurance and everything else.  It's just not possible!

I'm lucky.  As a lawyer, I have the ability to earn a decent living.  But a lot of people, due to lack of opportunity, lack of marketable skills or lack of a decent education, are not as lucky as I am.  But the real tragedy is that, in the wealthiest, most blessed nation on earth, we can't even see fit to pay workers a wage they can live on.  Note that I'm not talking about welfare -- I'm talking about people who are working, full time, but get paid so little they can't even make it to the end of the month.  And as a society, we seem to be OK with this.  That's just wrong.  So to all my conservative friends out there, the minimum wage is not too high, it's too low!  We should at least be paying people a living wage.

Wisconsin Judge Blocks Union-Busting Law

A state court judge in Wisconsin has blocked Governor Scott Walker's reprehensible union-busting law from taking effect.  According to The Milwaukee Journal Sentinel, Judge Maryann Sumi of the Dane County Circuit Court issued a temporary restraining order, finding that the legislature most likely violated the state's open meetings law when it rushed through the bill last week.  According to Judge Sumi (a Republican appointee, by the way), "It seems to me the public policy behind effective enforcement of the open meeting law is so strong that it does outweigh the interest, at least at this time, which may exist in favor of sustaining the validity of the (law)."

While this is only a procedural ruling, and does not address the constitutionality of the law, this allows the pro-worker forces in Wisconsin an opportunity to continue the fight.

Yes, You Can Be Fired For Being A Jerk

File this one under bad judgment.  In a decision to be released on March 22, the Connecticut Appellate Court found that being rude, insulting and obnoxious to your boss is sufficient misconduct to disqualify an employee from collecting unemployment when he gets fired.  In Joseph v. Administrator, Unemployment Compensation, the employer discharged the employee, an accountant, "immediately after he sent his supervisor two highly insulting and demeaning e-mail messages questioning her accounting and supervisory abilities."  This wasn't the first time the employee had been insulting and demeaning; he previously had accused co-workers and a former supervisor of both incompetence and some unspecified "fraud."  Unemployment denied his claim for benefits, in part because his offensive e-mails were not spontaneous, during a heated discussion, but were a deliberate attempt to undermine his supervisor.  The Appellate Court agreed, finding that, because the e-mails insulted his supervisor personally and undermined her supervisory authority, his actions rose to the level of willful misconduct in the course of employment.

You would think it's kind of obvious, that being an obnoxious jerk towards your boss is a good way to get yourself fired.  Could the employer have done something short of firing him?  Of course they could.  But the important point is that they were not required to do so.  So remember, my grandmother's advice (if you can't say something nice, don't say anything at all) applies with the force of law in the workplace.

Anti-Union Bill Defeated In Missouri

Here's some good news for the labor movement.  A so-called "right to work" bill (or, more accurately, a "right to work for less" bill) has died in the Missouri State Senate, failing even to come up for a vote.  500 pro-labor supporters packed the Senate gallery during the debate, on the heels of more than 5000 who had protested against the bill last week.

While its Republican sponsors argued that states with "right to work" laws have less unemployment and are more competitive, this argument didn't even sway other Republican senators, much less the Democratic minority.  In fact, states with "right to work" laws have lower per capita and median household incomes than states which do not restrict the ability of workers to organize.

CT Appellate Court Refuses To Bind Employer To Progressive Discipline Policy

In a blow to employee rights, the Connecticut Appellate Court refused to require an employer to live up to its progressive discipline policy.  In the case of Brule v. Nerac, Inc., the Court found that the employer was not bound by the progressive discipline policy set forth in its management training course, because the language was too vague to give rise to a contractual obligation.

The employer provided a management training course, which included training materials directing managers to provide "progressive discipline, open communication and an opportunity for improvement" prior to terminating their subordinates’ employment.  The employees, who were terminated without following progressive discipline, claimed that this training course formed contractually binding obligations not to terminate them without first following progressive discipline.  The Court decided against the employees, holding that the training materials merely set forth "a series of suggested principles that the managers should observe. . . ." (emphasis in original).

This decision once again shows that, for most workers, progressive discipline policies are worthless, because the employer can toss them out the window at any time.  I can't tell you how many times I've had people call me to complain that they were fired without following a progressive discipline policy, and I've had to tell them that I couldn't help them.  When your employer has you sign off on the employee handbook with a big disclaimer that says you are an employee at-will, that means the employer is not bound by any of the policies in the handbook.

Court Refuses to Force Employees to Arbitrate Overtime Claims

The Fair Labor Standards Act (FLSA) allows employees to band together in a "collective action"  (a form of class action) to sue their employers as a group for unpaid overtime.  One way the employers try to get around this is by forcing employees to arbitrate these claims instead of going to court, and then prohibiting them from collective actions in the arbitration agreement.

Earlier this month, a federal judge in Manhattan struck down such an arbitration agreement.  In Sutherland v. Ernst & Young, LLP (warning -- you'll need a subscription to the PACER service to view the opinion) Judge Kimba M. Wood found Ernst & Young's standard arbitration agreement unenforceable, thus allowing a collective action to proceed in court.

The Plaintiff, Stephanie Sutherland, worked for Ernst & Young as a low-level accountant.  She claims that, despite the fact that most of her work was secretarial and clerical, Ernst & Young classified her as an "exempt" employee and denied her the overtime that she is entitled to by law.  When she brought suit as a collective action, Ernst & Young moved to dismiss, arguing that she must arbitrate her individual claim instead of going to court.  Judge Wood denied the motion to dismiss for several reasons.  First, Ms. Sutherland's costs and attorneys fees would exceed $200,000, when her maximum recovery would be just over $3,700.  The Court stated that "only a 'lunatic or a fanatic' would undertake such an endeavor" and went on to note that if she couldn't pursue the case as a class action, Ms. Sutherland would be forced to give up any rights she might have to recover overtime payments.  The Court also noted that, because the arbitration agreement left it to the arbitrator's discretion to award attorneys' fees, if forced to arbitrate Ms. Sutherland likely would not be able to find an attorney to represent her.  Finally, Judge Wood found that enforcement of the class waiver provision would effectively ban all proceedings by Ms. Sutherland, thus giving Ernst & Young de facto immunity from liability for violations of labor laws.

This well-reasoned decision recognizes the realities that face employees who are wrongfully denied overtime.  Often, the amount at issue is relatively small -- a few thousand dollars.  By trying to force employees to submit to an expensive arbitration process while denying them the ability to act collectively, employers are gaming the system so that they can never be held liable for their actions.  So a tip of the hat to Judge Wood!

Tea Party Republican Introduces Federal Union-Busting Bill

(h/t to Labor Relations Today for bringing this to my attention)

Senator Jim DeMint, the man who single-handedly is trying to pull the Republican party (and the nation) off the cliff of right-wing lunacy, has introduced a union-busting bill in the Senate.  The so-called "National Right to Work Act" (a bit of Orwellian doublespeak) would strip unions of their rights to collect dues from all employees whom they benefit by outlawing union security agreements.  Such "right to work" provisions are already the law in 22 states -- mostly in the south and midwest.  A look at wage information shows that these so-called "right to work" states have lower average wages than states which protect the rights of workers to organize into unions.  Ya think there might be a relationship there?

Thankfully, with the Senate in Democratic hands and a Democratic president, this bill is going nowhere.

The Disgrace that Is Wisconsin

After weeks of insisting that the bill couldn't be amended, after weeks of insisting that this was a budget repair bill, Rethuglican (and he's earned the epithet) Governor Scott Walker and his minions in the Wisconsin state senate have enacted part of their corporate puppet-masters' agenda.  They have passed a bill effectively killing public unions in the state of Wisconsin.

Did they do this by negotiating with the opposition?  No.  Did they do this by following normal legislative procedures?  No.  Instead, they stripped out all of the budgetary elements from the bill, winged it through committee, and then passed it fourteen minutes later.  Let's say that again.  After insisting that this was a budget repair bill, the Republicans in the Wisconsin state senate stripped out all of the fiscal elements.  They then rushed it through committee, and passed it after fourteen whole minutes of debate.  This whole appalling process stinks to high heaven.  And it shows what Democrats and union officials have been saying all along -- that this is nothing more than a naked union-busting effort.  To quote the progressive Cap Times, "Shame, Shame, Shame!"

Please, please, please, take the time to donate to the Wisconsin Democratic Party's campaign to recall Republican State Senators.

Supreme Court Makes It Easier to Prove Discriminatory Firing

While I am concerned about the current Supreme Court's tilt to the right, occasionally they surprise me.  Such is the case with the March 1, 2011 decision in Staub v. Proctor Hospital.  In an 8-0 decision (Justice Kagan did not participate), Justice Scalia, of all people, made it easier to prove that a termination was for a discriminatory reason.

The plaintiff, Vincent Staub, was a member of the Army Reserves.  According to the Court, his supervisor at the hospital where he worked was "hostile to Staub's military obligations."  Mr. Staub ultimately was fired by the hospital's vice president of HR.  Mr. Staub claimed that his termination was unlawful, even though the VP of HR was not the person who discriminated against him, and sued under a statute, the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), that makes it illegal to discriminate against service members.  This sort of case is known as a "cat's paw" case, where a fired employee seeks to hold his employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision.

Before this case, most courts would deny such a claim unless the discriminating supervisor exercised such “singular influence” over the decision-maker that the decision to terminate was the product of “blind reliance.”  This is a very hard standard to meet.  Justice Scalia's opinion lowered the bar.  The new standard holds an employer liable for discrimination when a supervisor performs an act motivated by discriminatory animus that is intended by the supervisor to cause (and ultimately does cause) an adverse employment action such as a termination.

While this case technically only applies to claims under USERRA, the same logic applies to claims of other types of discrimination under other federal anti-discrimination laws.  This case is a rare instance of our conservative Supreme Court making it easier, not harder, for workers.  And to that, I say "Well done!"

Supreme Court Refuses To Overturn Pharmaceutical Workers' Victory

The U.S. Supreme Court last week refused to hear an appeal filed by Novartis Pharmaceuticals of a decision holding that Pharmaceutical Sales Representatives are entitled to overtime pay.  On July 6, 2010, the New York-based Second Circuit Court of Appeals ruled in the case of In re: Novartis Wage and Hour Litigation that these workers, who routinely put in 60 hour weeks traveling to doctors' offices to promote the latest medications, are non-exempt workers and thus should be paid overtime.

This decision by the Supreme Court is good news, at least for pharma reps in Vermont, Connecticut and New York, the three states covered by the Second Circuit.  Unless and until the Supreme Court (a) decides to hear another pharma rep case, and (b) rules otherwise, these workers will be able to recover back overtime, and get paid overtime going forward.  Hopefully this decision will help change an industry whose business model is based on forcing its workers to put in ridiculous hours without pay..

Wisconsin vs. Connecticut

The Washington Post is reporting that several Republican State Senators in Wisconsin are now considering voting against Governor Scott Walker's heinous union-busting bill.  If true, this is great news!  Organized labor could use a high-profile victory like this.  Indeed, it seems to me that Walker's overreaching may wind up being the best thing to happen to America's labor movement in years.

Let's contrast this with my home state of Connecticut, where Governor Dannel Malloy is trying to close an enormous hole in the budget.  Like Walker, Malloy has asked public employees for major givebacks.  Unlike Walker, however, Malloy is sitting down with the unions, in talks described as "respectful."  And it appears that Malloy, unlike Walker, will succeed in obtaining concessions from the unions without turning the state capitol into an armed camp.

The fortunes of America's labor movement directly correlate with the fortunes of America's middle class.  The golden age of union membership, from the mid-1940's through the mid 1970's, corresponds with the rise of the middle class.  But since the beginning of the assault on unions during the Reagan administration, America's middle class has been squeezed.  Let's hope that we're starting to see the re-birth of the union movement, and that Dannel Malloy's approach wins out over Scott Walker's.