Nicholas Fortuna, October 18, 2013.

This term, the U.S. Supreme Court will rule on the scope of the President’s power to make recess appointments under the Constitution. Article II of the Constitution provides that the president shall have power to fill vacancies subject to Senate confirmation during a recess of the Senate to ensure smooth operation of the government. The D.C. Circuit Court of Appeals ruled in National Labor Relations Board (NLRB) v. Noel Canning that President Obama’s three appointments to the NLRB during a recess by the Senate were unconstitutional. The effect was to void the NLRB’s Noel Canning decision and put at risk all the rulings made by the Board since the recess appointments were made.

Congress created the NLRB in 1935 to promote labor peace by encouraging companies and unions to bargain over their workers’ pay and other benefits. The Board decides thousands of cases like the one at issue here. Labor unions view the Board as a key ally in a time of diminishing union membership and clout. Employers see the Board as too pro-union. The NLRB has five members that decide matters relating to unions and employers.

The Supreme Court ruled three years ago that the Board shall not carry out its duties if its membership falls below three. Typically, when a vacancy occurs on the Board, the President chooses someone to fill it and the Senate decides whether to approve that nominee. Because of partisan gridlock, the Senate refused to vote on any of President Obama’s nominees to the Board. As a result, the membership fell below three and the Board did not have a quorum to operate. In turn, President Obama made three recess appointments in January of 2012.

The D.C. Circuit’s decision severely limits the President’s appointment power. It ruled first that the President can only make a recess appointment when the Senate is out of town during the interval between its annual sessions; and second, that the only vacancies the President can fill by such appointments are those that have opened up during such annual recess.

The current battle is a rehash of fights during the George W. Bush administration, just with party affiliations flipped. In 2004, President George W. Bush was fighting a challenge by Senate Democrat, Ted Kennedy, of his right to make intrasession appointments. At that time, the D.C. Circuit ruled in favor of the President and upheld the disputed appointments. In 2012, the Solicitor General in the Obama White House is defending intrasession recess appointments from attacks by the right. This time D.C. Circuit ruled against the President.

The Supreme Court is expected to make a decision by June of 2014.





Nicholas Fortuna, October 3, 2013.

The U.S. Supreme Court of the United States will decide if severance payments made to terminated employees are taxable under the Federal Insurance Contributions Act (FICA). The Court of Appeals for the Sixth Circuit determined in U.S. v. Quality Stores, et al. that the severance payments made to terminated employees were not taxable. The Sixth Circuit found that the payments were supplemental employment benefits (SUB) and thereby not taxable under FICA.

FICA tax of employee wages funds the Social Security and Medicare programs. Both the employee and employer pay part of this tax. The employer collects the employee’s share by deducting the tax from wages as they are paid. Generally, FICA tax is paid on severance payments. If the Supreme Court upholds the decision of the Sixth Circuit and finds that the payments are SUBs, it will be a consequential reversal of employer tax liability and entitle employers to tax refunds.

The concept of SUB payments evolved from the demand by organized labor for a guaranteed annual wage. The unions sought employer supplementation of existing state unemployment compensation programs. A number of industries adopted SUB plans. SUB payments are not compensation for work performed, they are payments as a result of an employee getting thrown out of work. SUB payments and severance are similar in that they are both payments for the loss of jobs.

To determine if a payment is a SUB (and not subject to FICA), Congress has delineated five factors to be considered: (1) the amount paid to the employee; (2) whether it was paid pursuant to an employer’s plan; (3) whether it was paid because of an employee’s involuntary separation from employment, regardless if it was temporary or permanent; (4) whether it resulted directly from a reduction in force, the discontinuance of a plant or operation, or other similar conditions; and (5) whether it was included in the employee’s gross income.

The Sixth Circuit found that Quality Stores’ payments met this test and Quality was entitled to a refund of its share of FICA taxes paid on behalf of employees. The Solicitor General of the United States petitioned the Supreme Court to review the Sixth Circuit’s decision. The Supreme Court agreed. A decision is due by June 2014.

There is a lot at stake for the government because the exposure it has to other taxpayers could be enormous. The Obama administration warned that it could amount to $1 Billion in tax refund claims.

Nicholas Fortuna, September 30, 2013.

The barricade erected by the Supreme Court in 2011, when it threw out a class action sex discrimination lawsuit brought by female employees against Wal-Mart, is proving to be impenetrable. In August a U.S. District Court Judge in California, relying on the Supreme Court’s earlier decision, denied a motion for class certification for women working in Wal-Mart’s California offices. The women are claiming that they were underpaid and given fewer promotions compared to their male counterparts. The case filed against Wal-Mart was a reformulated lawsuit of the one the Supreme Court considered in 2011. The California suit was part of a broader strategy by Wal-Mart’s female employees to bring more narrowly tailored class actions to avoid the pitfalls of the earlier action.

The Supreme Court, in a split decision (5-4), shut down a class action lawsuit against Wal-Mart that could have affected as many as one million women. Each of those women, it appears, will have to file their own claim. Only workers who have a truly common legal claim may sue as a group. The Court’s majority stated that rigorous proof will be required showing every single worker suffered from exactly the same sort of bias. Sample statistics and anecdotes won’t do. The claim brought by female employees, according to the majority, is that Wal-Mart’s “corporate culture” institutionalized a bias. They are suing, the opinion said, “about literally millions of employment decisions at once.” The ruling was, in essence, an interpretation of Rule 23, a federal court rule governing class actions.

Rule 23 requires that the individual members of a class have a common legal claim. Rule 23’s commonality requirement has now appears to have migrated to mean that the claims must be more or less identical. Further, proving commonality has become more difficult because each class member must provide proof that she has a common legal claim.

The 2013 California case alleged specific discriminatory statements made by the district and regional managers instead of relying on nationwide statistical patterns and anecdotal evidence. U.S. District Court Judge Charles Brayer stated in his decision that the women could not bring their allegations as a class because they had not established that their claims regarding Wal-Mart’s employment practices were linked to a class-wide policy. Judge Brayer ordered the claims to proceed on an individual basis.

We anticipate an increase in decisions limiting the ability to bring employment discrimination class action cases. For large companies in general, the more varied and decentralized their job practices, the less likely a class action claim filed against them will survive.

Megan Muoio, July 2, 2013.

The U.S. Supreme Court recently issued an important decision regarding Title VII of the Civil Rights Act, which prohibits employers and their agents from discriminating against workers on account of their race, color, religion, sex or national origin.  The case, Vance v. Ball State University, involved the question of who qualifies as an agent of the employer in an action for workplace harassment.  The Supreme Court in Vance, issued in June 2013, severely limited employers’ liability for the discriminatory acts of supervisory employees whose powers are limited to overseeing employees’ day-to-day duties.

Maetta Vance, an African-American woman, had been employed in the dining and catering department at Ball State University since the early 1990s.  Starting in 2001, Vance was allegedly subject to a variety of racial epithets, insults and threats from co-workers and Saundra Davis, a co-worker who Vance perceived as a supervisor.  Vance accused Davis of physically accosting her, slapping her and using racial epithets, including references to the Ku Klux Klan, against her.  Davis directed Vance’s day-to-day job duties but did not have the authority to hire, fire, discipline, promote, or transfer her.  Vance sued Ball State University, alleging racial bias, hostile work environment and retaliation under Title VII of the Civil Rights Act.

The case came to the Supreme Court after an appeal to the Seventh Circuit Court of Appeals.  The Seventh Circuit held that Davis did not qualify as a supervisor under Title VII and therefore Vance had not been subject to discrimination by an agent of her employer.  The Supreme Court, adopting the restrictive definition used by the Seventh Circuit, agreed in a 5-4 decision.  Justice Alito, writing for the majority, held that a supervisor must be empowered to take “tangible employment action” against an employee in order to trigger the employer’s liability for discrimination under Title VII.  Unless Davis was vested with the authority to make a significant change in Vance’s employment status, such as the ability to hire, fire, promote, reassign with significantly different responsibilities, or to make a decision causing a significant change in Vance’s benefits, Davis could not be termed a supervisor and would not subject Ball State University liability as its agent.

In a strongly-worded dissent, Justice Ginsburg excoriated the majority for leaving employees vulnerable to the harassment and discrimination of individuals who control day-to-day work and have considerable power over their work.  Justice Ginsburg then described several lower court cases in which an employee had been subject to particularly heinous harassment from a supervisor who directed the employee’s day-to-day activities, but who would not have sufficient supervisory powers to trigger employer liability under the Court’s restrictive definition in Vance.  The dissent argued that the restrictive definition of supervisor did not take into account the realities of the workplace in which “supervisors” come in many different shapes and sizes.  The result, concluded Justice Ginsburg, would be reduced protections for employees and decreased liability under Title VII for employers.

However, in a footnote in its decision, the majority recognized that there are circumstances, although not in the Vance case, in which the Court’s restrictive definition of a supervisor could be expanded due to almost unlimited possible employment scenarios.  The majority also indicated that employees who have the authority to recommend a tangible employment decision might be deemed to be supervisors.  It remains to be seen whether employees’ attorneys will bring test cases to the Court in future terms in an attempt to expand the definition of a supervisor under Title VII farther than the Court has defined that term thus far.