Supreme Court Holds Private Employers To Sarbanes-Oxley Whistleblower Anti-Retaliation Mandate As Well
Before yesterday, Section 1514A's whistleblower protections within the Sarbanes-Oxley Act were thought to only be applicable to public employers and contractors. In a majority opinion by the Supreme Court in the case of Lawson v. FMR LLC, the anti-retaliation protections have been extended to include employees of private employers that subcontract with a public employer. You can also read more about the decision here.
This decision should not be a surprise as it follows similar workplace decisions of lower courts in the past, such as when the NLRA's employee concerted activity anti-retaliation mandate was held by several district and circuit cou to apply to non-unionized employers as well.
While I have been somewhat critical of Governor Jan Brewer in the past, I commend her for putting an end to SB1062. This bill has been referred to as a homophobic bill, but Anderson Cooper rightfully expressed concern in his astute exchange with one of the bill sponsors.
The problem with the bill, in addition to the concern that it is homophobic in nature, is that by purportedly giving businesses (and its employees) the ability to refuse services to customers premised on deeply rooted religious beliefs, the ramification of such a bill expands far beyond the ongoing debate about the rights of the GLBT community. As Mr. Cooper explains, what would stop an employee, based upon his/her alleged bona fide religious belief (what constitutes a religion and thus a belief is generally given wide discretion), from refusing services to a divorcee or an unwed mother because he/she abhors people in those circumstances?
While the bill sponsors proclaimed that the bill is geared towards preventing situations from occurring in the state of Arizona like what happened in the state of Oregon when it ruled against a baker who refused to bake a wedding cake for a gay couple, the reality is that a non-religiously affiliated business open to the public should not be refusing services to paying customers. This is especially true when the customer(s) in question are not otherwise involved in or affiliated with unlawful/criminal activity.
Change is no longer coming. Change is here. Change is good.
I am certain gay athletes have always played in major league professional sports. The difference is that they had to keep their sexual orientation a well-kept secret. Times are changing.
Last year, Jason Collins announced that he was gay. While this was major news, it was diminished a bit by the fact that he has already played his last game of that NBA season and his contract with the Washington Wizards was expiring. There was no guarantee that he would be re-signed or land with another team. For almost a year he was unemployed and many speculated that he was unemployed because of his announcement (others contend he was an aging player with diminishing skills).
Fast forward to February 2014 and Jason Collins played his first game of this NBA season on Sunday February 23rd with the Brooklyn Nets (interestingly, the owner of the Nets is Russian and lost in the presidential election to Vladimir Putin, a man who caught a lot of slack for his anti-gay stance heading into the Sochi Winter Olympics). Collins is now considered a trailblazer as the first openly gay player in the NBA.
Perhaps the NFL is not too far behind. Also this weekend, recently announced collegiate athlete Michael Sam gave an outstanding press conference at the NFL Combine. The standout Missouri athlete is widely considered a mid-rounds draft pick in the upcoming NFL draft. Most, if not all of the NFL athletes, coaches and owners that have spoken about this upcoming scenario have been positive.
Yes, discrimination against those considered different than the mainstream will still exist. These athletes will surely experience some form of unnecessary hostility and hatred; change agents usually do. But each passing year brings more tolerance. And even while some politicians still fight laws such as the Employment Non-Discrimination Act (ENDA), which would make discrimination against gay employees unlawful, it is likely just a matter of time before it passes. Yes, it will likely pass in spite of comments recently made by a Republican Congressional candidate when he inexplicably referred to ENDA as a "segregation law." Hmmm, I thought ENDA would end unequal treatment, not created it. But what do I know….
I only know that change is no longer coming. Change is here. Change is good
In another blow to organized labor, the Volkswagon employees narrowly voted against unionization with UAW. Whether you are pro or anti-union, it is clear that unions are in a rapid state of decline, having diminished in membership 75% over the past forty years. With just over 10% of the workforce in unions today, it would not be surprising to see unions become nonexistent over the next decade. Unless, of course, they can figure out how to get those fast food workers unionized.
On a side note, this can also be considered a blow to arbitration as well. With over 95% of collective bargaining agreements (CBA) containing arbitration clauses, a decline in unions equals a decline in arbitration utilization. But for the SCOTUS love affair with arbitration and allowing it virtually unfettered access to the world of consumer adhesive contracts, as well as continued encroachment into employees statutorily protected rights outside of the confines of labor law, the world of arbitration might be in jeopardy as well.
William Mitchell tenured Law Professor Peter Erlinder has filed suit against the law school, claiming they have discriminated against him on the basis of his disability and violated the Family Medical Leave Act (FMLA) by having improper direct contact with his medical provider (he also alleged breach of contract and defamation).
What is the impetus for all of this? It seems that Professor Erlinder was imprisoned and threatened with daily execution while on an activist mission in Rwanda in 2010. Trying to help bring peace to a troubled country is a good deed. But as a result of this situation, he has now been diagnosed with Post Traumatic Stress Disorder (PTSD). This condition might have impacted his relationship with colleagues, and reportedly led the Dean to have security officers and a bodyguard stationed outside the Dean's office suite. Professor Erlinder feels that he was punished by being barred from campus due to his medical condition.
This story is unfortunate on many levels. If the colleagues truly fear for their safety, their actions might be justified. But is it fair to ban this professor from his profession due to the unforeseen circumstances he now finds himself? Is it possible that with proper care and with a certain level of understanding from the administration, they can harmoniously coexist? Obviously, there is a lot of this story yet to be told. Regardless of how the lawsuit ends, I hope Professor Erlinder emotionally recovers from such a traumatic event.
The Miami Dolphins have lifted the suspension of Richie Incognito. As you may recall, I previously blogged about the situation that led to his suspension and his victim (Jonathan Martin) voluntarily, and perhaps temporarily, walking away from the game.
Incognito, now a free agent who can sign with any NFL team, recently tweeted that he fully supports Martin's return to the NFL. It is certainly a nice gesture that Incognito sent the tweet. The question remains, however, whether the tweet was a sign of true understanding of what he did, possible remorse, and an attempt at reconciliation, or whether it was a ploy to make people think all of these things in order for him to get employed by another team. Perhaps we will never know, or at least we will not find out until he gets a job with another team and is confronted with the temptation of hazing/bullying new recruits.
Does he deserve a second chance? Everyone does if they at least appear to take responsibility for their conduct. But few people deserve a third chance. I predict a team desperate for offensive line talent will take a chance and sign him.
******UPDATE February 15, 2014
The Ted Wells report is out, and has been described as 'disturbing'. The report implicates other starters on the Miami Dolphins roster and is replete with racial and homophobic slurs used towards Jonathan Martin and other rookies/teammates. Perhaps bullies do not deserve a second chance after all...
Not feeling "happy" enough after eating your McDonald's Happy Meal? Does the toy in the box fail to get you excited? If you visited a certain McDonalds in Pittsburg and asked for a "toy", drive-thru employee Shantia Dennis would "allegedly" provide you with a Happy Meal box containing heroin. After getting busted in a drug sting, I assume getting fired for putting unauthorized toys in the Happy Meal boxes is the least of her concerns.
A new dance to an old tune. Northwestern University football players are seeking to unionize. Why? Because thus far courts have not agreed with the proposition that student-athletes are employees. However, if they can backdoor the issue by being members of a recognized labor union, this would mean, in essence, that the players are employees. After all, the National Labor Relations Board (NLRB) deals with the unionization of labor forces.
Some people support this proposition. Indeed, a 75-page article has been written about the issue and the wisdom of treating these students as employees. I do not see it happening. I would be shocked if the NLRB recognized this unionization effort, and even more shocked if NLRB recognition and the inevitable court appeal by the university and/or NCAA that would follow didn't result in a reversal of the NLRB decision.
But why shouldn't student-athletes be considered employees?
After all, the university controls where they play/work, provides the uniforms, mandates the hours of operation, and has a right to control the ultimate outcome. Doesn't the totality of the circumstances support "employee" status? No. While reasonable minds can endlessly argue the merits, the practicality cannot be ignored. These student-athletes are in college for an education and the "chance" to someday play professionally. They may receive free tuition and perhaps even free meals and room/board, but don't some non-athlete students on scholarship receive the same thing? Yes, non-athlete students do not have to go to practice and travel around the country playing games, but they did not sign up for that. However, the student-athlete did.
Why not pay the athletes a stipend?
This seems logical, but the major problem with this is that it will only bolster the argument that the student-athletes are actually employees. A stipend is almost tantamount to being paid a wage, and being paid wages could swing the pendulum strongly in the direction of having the students deemed employees. Also, if the football players get paid, the basketball players will also want to get paid. After that, the swimmers, golfers, hula hoopers, hopscotchers, and basically all of the other sports athletes will demand compensation, despite the fact that typically only football and basketball are revenue generators for the colleges. Title IX will ensure that women's athletics get compensated as fairly as the male sports.
If the student-athletes are paid employees, where do we draw the line?
Ok, let's assume for the sake of argument that the student-athletes are employees worthy of compensation. Do we next have to consider high school athletes employees? Think about it. They are held to the same practice, game day, and uniform requirements as college students. Some of them even attend private schools but get free tuition due to their athletic prowess. And what about the pee-wee leagues. Would these become violations of FLSA child labor laws? It doesn't take a rocket scientist to realize that this would cause tremendous financial strain on already strapped school districts. The result would be schools canceling their athletic programs, resulting in students losing productive extra-curricular opportunities. But I suppose they can always go hang out at the mall or on street corners instead.
Is the current system really broken and in need of a remedy? I do not think so. Students make a conscious choice to be an athlete. If they want to get paid to play, they can always choose to avoid college and play in semi-pro or professional leagues that allow participation post-high school. Choosing to go to college brings with it the clear understanding that they are students first. If the university makes a profit, so be it. Those profits help provide for better facilities for the student-athletes, better travel accommodations, better meals, and greater exposure to potential professional employers after their collegiate playing days are done. Must you ask for more than that?
On Monday, the Supreme Court issued its decision on the Sandifer donning and doffing case. The case questioned whether employees should be paid for the time spent putting on and taking off personal protective equipment (a year ago I blogged on this topic here). While the Department of Labor's guidance is usually persuasive, the Agency has been as consistent as Mitt Romney (the flip-flopper...allegedly) in its interpretation of 29 U.S.C. § 203(o) and the definition of clothing.
Essentially, the statute indicates that changing clothes is not compensable time. However, there has been much debate on what constitutes clothing, and the DOL has seemingly changed its interpretation of clothing with every new Presidential administration. Possibly putting this situation to rest, SCOTUS sees most protective clothing to be equivalent to clothing generally. As such, unless the collective bargaining agreement (CBA) allows for compensation the employees will not be paid for time taking off and putting on these items (i.e. boots, safety vests and belts).
While the Court left room for the possible compensation of items that are more tantamount to equipment than clothing, such as earplugs and goggles, it deemed the time spent putting on and taking these items off as so nominal as to not warrant consideration for compensation. I have been critical of many recent SCOTUS decisions, but this one makes perfect sense. Now, time for me to change into my work clothes and start earning my keep!
"Give me an 'S'! Give me a 'U'! Give me an 'E'! What's that spell?!" Ah yes, the Raiderette Cheerleaders have sued the Oakland Raiders. Proving that they are both beautiful and have brains, they are arguing that they should be paid a fair wage instead of the alleged $5/hour they earn now.
Of course, this is not as simple as looking at that $5 and quickly surmising that it falls below the minimum allowable wage. The Raiders will argue that they are independent contractors and thus are not employees covered under the Fair Labor Standards Act (FLSA) wage laws. In turn, the Raiderettes will argue that because they have little control over their job, and they are required to wear a specific uniform and to be at specific locations at the whim of the employer, the totality of the circumstances shows that they are actually employees being unlawfully categorized by the Raiders as independent contractors in order to avoid giving them fair wages and benefits.
What will be most interesting is seeing how many cheerleaders opt-into this collective action. Voluntarily agreeing to be a part of the suit may bring retaliatory animus from the employer. While employees in other professions can take this risk, determining that they can always go work elsewhere given the many years that they have to work before considering retirement, the lifespan of a cheerleading career, like that of a professional athlete, is fairly short. Therefore, joining such a suit might mean the end of the career. Perhaps it is worth the risk if they truly feel they are unfairly compensated and want to improve the , but it is certainly a risk worth assessing in-depth.
It would probably be wise for them to consider the path of mediation. It has worked wonders for the players and the referees in helping them get extra perks for their service to the NFL. If the cheerleaders from the teams band together, they could strengthen their negotiating position. However, if the lawsuit remains a handful of disgruntled Raiderettes…good luck. Let's see how Mark Davis handles this. I believe Al Davis would have taken a heavy-handed "my way or the highway" approach to the issue. That is how the iconic owner of the Raiders seemed to handle business - his way. And for the most part, his way was wildly successful.