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 He filed a second grievance, and an arbitrator ordered that some of the directives be modified or withdrawn.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.

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.

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.

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..