Tag Archives: U.S. Supreme Court

In Significant Workers’ Rights Case, The U.S. Supreme Court Grapples With Grammar

In legal disputes, success or failure often turns on the definition of a word.  For example, what does the word “file” mean?  To some, it refers to that ubiquitous manila or colored organizer that many an office could not survive without.  To others, it refers to the act of lodging something with a particular body, agency, or office; e.g., to file a complaint.  Lawyers speak of a client’s “file” meaning the papers and records and other materials comprising the client’s case, dispute or matter.

Black’s Law Dictionary defines “file” in this way:

1. “A record of the court.  A paper is said to be filed when it is delivered to the proper officer…received to be kept on file as a matter of record;
2. To lay away and arrange in order, pleadings, motions, instruments, and other papers for preservation and reference…To deliver an instrument or other paper to the proper officer or official for the purpose of being kept on file…as a matter of record…It carries the idea of permanent preservation as a public record.”  (Black’s Law Dict. (6ht ed. 1990) p. 628, col. 1, citing City of Overland Park v. Nikias (1972) 209 Kan. 643, 498 P.2d 56, 59.

Once again, Black’s Dictionary seems to sum it all up nicely, simply and succinctly.  Oh, but if language were that simple.  Words don’t exist in a vacuum, after all.  They represent beliefs and intent expressed in a particular context.  As I heard an attorney state in a recent oral argument, “Nomenclature matters.”  Yes, it does.  But, so does context.

During its October term, in an employment law retaliation case that will potentially affect tens of millions of workers, the Justices of the U.S. Supreme Court are grappling over how to define the word “file.”  While their struggle may seem like petty semantics, “file” is important in the context of the employment law statute at issue – the Fair Labor Standards Act (FLSA).  The case involves an employee who sued his former employer, Saint-Gobain Performance Plastics Corp., alleging that it fired him in retaliation for a series of verbal complaints about the illegal location of time clocks in his factory.  Both a federal district court judge and the U.S. Court of Appeals for the 7th Circuit ruled against the employee, holding that the FLSA required a written complaint.  The employee’s case invokes FLSA’s anti-retaliation provisions, which seek to prohibit employers from taking adverse actions against employees who raise internal complaints about their working conditions, safety as well as others.

So, the crux of the issue is this:  Does the word “file,” by definition, mean to put something in writing as when you complain, or is a verbal complaint enough?

According to an excellent article in Law.com, at oral argument, the Justices peppered both sides with hypothetical situations involving verbal employee complaints.  These situations are well worth reading, and illuminate the analytical problem facing the Court and the real-world problem vexing employers.  Based on the questioning, the right wing of the Court appeared concerned that too broad a definition might expose employers to retaliation-based lawsuits over nothing more than a verbal reminder about a minor maintenance issue initiated in passing, or even social remarks made outside the office.

The “left-ish” wing of the Court, however, seemed to invoke the history of the FLSA.  In particular, many of the workers whose conditions were most improved by the FLSA – and who will likely be most affected by the Court’s ruling – include migrant field workers or others employees working in situations where writing something down was not thought to be all that easy to do.  Counsel for the employee, Kevin Kasten, remarked:

“It’s implausible to think migrant workers would leave the field to file written complaints with a government agency,” he said. “Migrant workers, coal miners, factory workers — they don’t write memos. This has to have a broad interpretation. Employees are the engine that drive this act.”

Realistically, both sides have a valid point.  In those case, the “right” decision usually is a combination of both viewpoints.  Retaliation lawsuits represent a serious threat to employers, particularly smaller employers who often have haphazard or non-existent complaint/response procedures.  Employers should have some parameters to rely upon when an employee makes a complaint, which should be easy for all to understand and follow.  To preserve the intent of the FLSA, an employee should not have to jump through burdensome or confusing procedural hoops to register a complaint about their working conditions.  In and of itself, that smacks of unfairness.

Fortunately, we live in a world where information sharing has been greatly improved over the world that existed when the FLSA was passed in its original form and even when its anti-retaliation provisions were added.  Today, as reported at Cyber-Esq., the vast majority of Americans own cell phones.  Cell phones are capable of confirming a verbal complaint (at least to some degree of specificity) with a text message or send even longer messages, textual and visual.  Mobile, hand-held forms of communication grown more capable and more approachable every day to “average” workers; they are no longer the playthings of the well off.  These “average” workers are the very people, as Justice Ginsburg correctly, remarked, the FLSA was intended to protect.

As a matter of fairness, taking into account the intent of the FLSA but also the current technologies available for creating a “writing” without having to leave the field and write a memo, it is not asking too much for employees to lodge some form of a writing that at least memorializes or confirms what may have started out as a verbal complaint.  In turn, an employer ought not require or expect the specificity of a pleading, motion or other instrument that transforms a remedial procedure like a complaint procedure into nothing more than a barrier to improved working conditions.

A word of advice for workers reading this article – I have counseled employees for more than a dozen years, and have given them all the same advice when it comes to making a complaint.  If a complaint is worthy enough of a verbal reproach to your boss, why not protect yourself and confirm that with something in writing.  In past generations, that might have been a letter, a handwritten note perhaps.  Today, it can be easily achieved via electronic means.  Do yourself a favor and don’t lock yourself into a dispute like this employee did.

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Supreme Court Rules Abducted Child Should Have Stayed In Chile

I found a fascinating article today written by Lori Paul in, California Family Law Paralegal which describes a case at the intersection between family law and international law.  The article describes the matter of Abbott v. Abbott, a case involving a mother and father who divorced in Chile.  The parties had one son. The Chilean court granted the mother custody, with visitation rights to the father.  In addition, the Chilean court ordered that neither parent could leave Chile with the child without the other parent’s agreement (“no removal” order or ne exeat order).

Unable to find work in Chile, the mother left the country with the parties’ son and returned to the United States. The father found the mother and child in Texas and moved to enforce the Chilean “no removal” order.

In deciding the case, the U.S. Supreme Court had to grapple with whether the “no removal” order issued by the Chilean court constituted a “right of custody” under the Hague Convention on the Civil Aspects of International Child Abduction.  While it might seem quite obvious that the answer would be yes, most lower courts facing the same or similar issue had decided in the negative.

In a 6-3 decision with an opinion written by Justice Kennedy, the U.S. Supreme Court decided, however, that the “no removal” order was a custodial right granted to the father and that the mother wrongfully removed the parties’ son when she left Chile without the father’s agreement.  Justice Stevens, Thomas and Breyer dissented.

Here is a link to California Family Law Paralegal where you can access the full text of the opinion as well as oral argument.  You can also access the briefs filed on both sides of the argument by following this link.

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Male-Male Sexual Harassment Claims On The Rise; The Cheesecake Factory Settles

Newsweek published an interesting article online today about sexual harassment, entitled “Abuse of Power” which you can link to here.

The article discusses a 2008 suit filed by the EEOC against restaurant giant, The Cheesecake Factory.  The suit alleged sexual harassment at the chain’s Chandler Mall location in Phoenix, AZ, including incidents of fondling, simulated rape, and employees being forcibly dragged into a restaurant refrigerator.  The Cheesecake Factory has recently settled the suit, agreeing to pay each of the plaintiffs in the case $340,000.

What makes the article – and, indeed, the EEOC action – most interesting, however, is that the suit was brought by a group of male employees, alleging sexual harassment by other men in the workplace.  According to the EEOC, such claims are on the rise.  Their office has witnessed a doubling of such claims between 1992 and 2008.  Male to male sexual harassment claims now comprise approximately 16 percent of all sexual harassment claims.  However, it is thought that such claims may actually represent an even higher percentage because the EEOC does not always maintain records of the harasser’s gender.

Male to male sexual harassment cases illustrate a fact not often understood about sexual harassment cases.  Sexual harassment cases are about power – not sex, flirting, or seduction.  In The Cheesecake Factory case, for example, no allegations were made that the harassers were actually attracted to men.  Rather, the behavior of the harassers in the case was a form of intimidation.

In 1998, the U.S. Supreme Court recognized a cause of action for same-sex sexual harassment in the landmark case of Oncale v. Sundowner Offshore Services.  I have placed a PDF copy of the case in the Box.  The Court’s decision was unanimous.

Oncale arose out of a suit for sex discrimination by a male oil-rig worker, who claimed that he was repeatedly subjected to sexual harassment by his male coworkers with the acquiescence of his employer. The Court held that Title VII‘s protection (Title VII of the Civil Rights Act) against workplace discrimination “because of… sex” applied to harassment in the workplace between members of the same sex.  Oncale was heralded as a major “gay rights” case, even though all the parties in the case were heterosexual.

In Oncale, the plaintiff was subjected to horrific acts of violence in the workplace, including being sodomized with a bar of soap.

According to the Newsweek article, “tough economic times have also been known to foster an environment of increased sexual harassment,” quoting human-resources consultant Michele Paludi. Harassment escalates when those in power feel threatened, either by an influx of female workers or a challenge to the traditional gender expectations.

Title VII law requires supervisors or employers to act promptly to investigate and remedy sexual harassment once they become aware of it.  Failure to do so can lead to employer liability.  In December 2009, for example, the U.S. Court of Appeals for the 2nd Circuit ruled in Duch v. Jakubek, 2009 WL 4421267 (2d Cir. 2009), that a jury reasonably could find that a supervisor who ignored facts regarding suspected workplace sexual harassment had constructive knowledge of the harassment and, thereby, exposed his employer to liability under Title VII.

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9th Circuit Rules Taser Use Excessive; Defines What Constitutes “Resisting Arrest”

Today, in the matter of Bryan v. McPherson; City of Coronado, the U.S. 9th Circuit Court of Appeals issued what appears to be a significant ruling on the propriety of police officers using tasers.  The Court held that a police officer‘s use of a taser against an individual, without warning during a traffic stop for a seatbelt infraction, was unconstitutionally excessive under the circumstances.  The circumstances in the case included the fact that the plaintiff was unarmed, did not level a verbal or physical threat against the officer, was 15-25 feet away from the officer, and was facing away from the officer.

According to the officer, the plaintiff took a step towards him, justifying the use of the taser.  The 9th Circuit rejected this argument, ruling that even if the plaintiff had done so, the officer was not justified in using an intermediate level of force.

One of the most interesting aspects of this decision appears to be the Court’s characterization of the taser as intruding upon a person’s bodily functions and integrity in a way that other non-lethal uses of force do not.  As such, use of a taser must be justified by a strong governmental interest that compels employment of such force.

The second interesting aspect of the case is the Court’s characterization of what constitutes “resistance.”  In many cases, police officers use the argument that a suspect was “resisting” in order to justify the application of a higher level of force than what is necessary under the circumstances. 

The Court held that, where a suspect complies with an officer’s instructions in all respects except that he did not remain in his car and was shouting gibberish and hitting his own legs, the person is not engaging in “resistance.”

Ever since its invention in 1974, the taser has been the subject of close scrutiny by civil rights advocates and the media.  Since at least 2004, Amnesty International has expressed grave concerns about the ease with which police officers use taser to inflict serious bodily injury on individuals.  You can link to Amnesty International’s website discussing tasers here.

Taser International, the company that manufactures the taser for law enforcement agencies, has also been the subject of numerous lawsuits over the weapon.

CRW will follow this decision closely to see if it is appealed to the U.S. Supreme Court.  In the meantime, I have placed a PDF copy of the decision in the Box for you to download entitled “City of Cornado Taser Case.”

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Supreme Court Declines “Vamos a Cuba” Case

Vamos a Cuba
Image via Wikipedia

Yesterday, the U.S. Supreme Court decided not to hear a bitterly contested First Amendment case arising out of Miami-Dade County, Florida, and which has come to be known as the “Vamos a Cuba” Case.  “Vamos a Cuba,” or “A Visit to Cuba,” is a children’s book at the center of the controversy, which school board officials removed from the school library.

As reported in yesterday’s Christian Science Monitor, school board officials determined that the book portrayed an inaccurate picture of life in Cuba, based largely on one parent’s offense to the following statement:  “People in Cuba eat, work, and go to school like you do.”  “Vamos a Cuba” is part of a 24-volume set of books intended to introduce U.S. children to life in other countries.

The ACLU filed suit against the school board claiming that the board’s actions constituted censorship in violation of the 1st Amendment.  The U.S. District Court agreed, issuing an injunction commanding the school board to restore the book to the library shelves.  The school board then filed an appeal, and the 11th Circuit Court of Appeals disagreed with the trial court’s ruling and lifted the injunction.

By refusing to take up the case, the Supreme Court will let the 11th Circuit’s ruling – and the school board’s actions – stand.

Miami-Dade County has a long history of political controversy, first making headlines with Anita Bryant‘s prominent campaigning in 1977 to repeal a local ordinance that prohibited discrimination on the basis of sexual orientation.

What is remarkable about this case, in my opinion, is the fact that the school board convened not 1, but 2, panels to review the book and decide if it should stay or go.  The first panel consisted of 8 individuals, voting 7 – 1 in favor of the book staying on the library shelves.  Apparently, not to be dissuaded, the board convened a second, larger panel of 16 individuals.  They voted 15 – 1 in favor of the book.  Despite these resounding vote totals, the school board then voted 6 – 1 in favor of removing the book.

Another point that bears mentioning is that the school board also rejected any argument that the library could acquire other books about Cuba that might present a more “well-rounded” view of the country.

The U.S. Supreme Court has tinkered with Tinker v. Des Moines School District for years now, gradually whittling away at young people’s freedom of expression and First Amendment liberties.  This time, I fear, they struck a potentially worse blow to the First Amendment by not getting involved.

Do you agree with the school board’s actions in this particular case?  Should a local school board be permitted to remove a book from the public school’s library because the board believes it paints an inaccurate viewpoint about another nation?  What if a school board decided that the Holocaust did not actually happen, and banned any books referencing it?

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