Allyn & Fortuna LLP
Megan J. Muoio, January 29, 2014.
On January 21, 2014, the Supreme Court heard oral arguments in Harris v. Quinn, a case that could have an impact on the future of public employee unions. The case involves home-care workers in Illinois who, ten years ago, were permitted to unionize and were classified by the Governor of Illinois as state employees for the purpose of representation by the union. According to the Attorney General of Illinois, the goal of unionization of the home-care workers was to create a professional group of home-care workers with a uniform standard of training, qualifications, and supervision. As a result of unionization, the home-care workers also received increased wages and health insurance.
Under the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education, the Supreme Court held that public sector employees may be represented by a single union and that all workers in that sector – whether they chose to join the union or not – would have to pay their fair share of dues to support the union’s collective-bargaining activities regarding benefits and working conditions. The Abood decision also made clear that, although the non-union members can be compelled to pay dues attributable to collective-bargaining activities, non-union members cannot be compelled to pay dues to support a union’s political or ideological activities.
In Harris, eight home-care workers who object to representation by the Service Employees International Union brought a class action, objecting to the requirement that they pay dues to the union. The union currently represents more than 20,000 home-care workers in Illinois. The dues paid by the workers are used by the union in negotiations with the state Medicaid program regarding reimbursement rates and wages paid to the workers. The home-care workers in Harris argue that the union’s negotiations with the state Medicaid program on their behalf are an attempt to petition the government on a matter of public concern – the wages paid to government employees. The workers claim that this in a violation of their rights of free association and free speech. The workers are urging the Supreme Court to overrule Abood and eliminate the exclusive representation union for public sector employees.
The State of Illinois rejects the workers’ claim that the union’s negotiations for higher wages or reimbursement amounts from the state Medicaid program are a political act. Instead, the State urges the Court to find that the union’s activities in this case fall squarely within the purview of the Abood case because the union’s negotiations are related to benefits, working conditions and wages for the workers. The federal government joined the case in support of the State of Illinois and in defense of Abood.
This is an important case because it is very possible that the Supreme Court will overrule Abood entirely, given the Supreme Court’s prior statements. The Supreme Court recently indicated its hostility to mandatory dues paid to public sector unions by non-members in Knox v. SEIU in 2010. In that case, the union sought to impose special dues assessments and dues increases on all workers and argued that Abood required members and non-members alike to pay for these additional amounts . The Supreme Court disagreed and held that non-members were not required to pay additional amounts to the union absent an affirmative vote by the non-members. The Knox decision was widely considered to be a substantial blow to the power of public sector unions. If Abood is overruled in Harris, public sector unions will be further – and perhaps fatally – weakened.
A decision is expected by the end of the term.
Nicholas Fortuna, January 22, 2014.
Arbitration Favored Over Class/Collective Action
Mandatory arbitration agreements in the employment setting gathered steam this year. The U.S. Supreme Court’s decision in American Express Co. v. Italian Colors Restaurant held that mandatory arbitration agreements with explicit waivers of the right to bring a class or collective action are enforceable notwithstanding federal common law and federal statutes to the contrary (i.e. National Labor Relations Act). The Courts of Appeals have universally upheld the waivers and enforced employment arbitration agreements. This is true even when Fair Labor Standards Act or Title VII pattern-or-practice claims are asserted. The ruling in American Express Co. is consistent with the general theme of the Supreme Court’s recent employment law rulings, which in effect limit the number of employment law cases that can be brought in federal courts.
However, 2014 may bring new changes in the battle to push employment claims out of the courts. Amendments are being offered to the Federal Arbitration Act that would prohibit mandatory arbitration provisions in an employment agreement. In California, the state courts are using the doctrine of unconscionability to challenge mandatory arbitration provisions. The approach is that it is unconscionable to force employees to sign an agreement containing a mandatory arbitration provision as a condition of employment. So far this has not been used to great effect. In most cases, the Federal Arbitration Act preempts state law.
Employment Law Class Actions May be at an End After Supreme Court’s Follow-up to Wal-Mart in 2013
The Supreme Court revisited the analysis it used in 2011 Wal-Mart v. Dukes, in which it stated that only those workers who truly have a common legal claim might sue as a group and required rigorous proof showing every single worker suffered from exactly the same bias. The suit involved potentially millions of different employment decisions, which prevented class certification because the claims were not truly common under the Supreme Court’s new stricter standard.
In 2013 the Supreme Court moved forward in its application of commonality to class actions in the antitrust case Comcast Corp. v. Behend. Here, the Court concluded that the class had been improperly certified because the plaintiffs’ expert’s damages model could not establish damages directly linked to the antitrust injury through common proof. Questions of individual damage calculations will inevitably overwhelm questions common to the class.
Title VII Retaliation Claims
The Supreme Court held in University of Texas, Southwest Medical Center v. Nassar that Title VII retaliation claims must be proven by the stricter standard of but-for the retaliation, the employee would not have been fired. The Court stated that the less restrictive cause standard of mixed motives does not apply. The mixed motive standard is where one of the motives for firing the employee was retaliation, but that was not the only reason. Such an approach, the Court ruled, cannot be used in Title VII cases.
Sexual Harassment
The Supreme Court took on the question of who qualifies as an agent of the employer in an action claiming workplace harassment in the case of Vance v. Ball State University. The Court held that harassment of a nominal supervisor; one that merely oversees the employee’s day-to-day duties cannot subject the employer to liability of acts of harassment. Unless the supervisor was vested with the authority to hire, fire, promote, or cause a significant change in benefits, he or she would not subject the employer to liability as its agent.
Paula Lopez, January 2, 2014.
After cautiously avoiding a ruling on the issue of the legality of state bans on same-sex marriage it is increasingly likely that the U.S. Supreme Court will be forced to decide this issue. In Windsor v. United States, decided in June 2013, the Supreme Court struck down a provision of the Defense of Marriage Act (DOMA) barring federal marital benefits to same-sex couples who had been married in states where same-sex marriages are legal. In its ruling, the Court expressly limited its holding to the issue before it and made it clear that the authority of a state to define who can get married was not an issue before the court.
Decided by the Supreme Court at the same time was Hollingsworth v. Perry, which involved an appeal of a federal court’s decision finding California’s “Proposition 8”, a voter-approved initiative banning same-sex marriages, to be unconstitutional. Rather than address the merits of the federal court’s decision, the Supreme Court found that the proponents of Proposition 8 did not have standing to appeal the federal court’s decision when California officials refused to defend the law. The practical effect of the ruling was to permit same-sex marriages to resume in California without having to address the state’s authority to define who can marry.
Just before Christmas, in Kitchen v. Herbert, District Court judge Robert J. Shelby struck down Utah’s state constitutional amendment forbidding same-sex marriage as violating the plaintiffs’ Fourteenth Amendment due process rights. The 14th amendment prohibits any state from making or enforcing laws that infringe on the fundamental rights of its citizens, of which marriage is one.
Judge Shelby’s decision held that the plaintiffs have a fundamental right to marry that extends to their choice of a same-sex spouse. Given such a right, any state laws passed affecting that right must be narrowly tailored to serve a compelling state interest. In analyzing the constitutionality of Utah’s ban on same-sex marriage, Judge Shelby held that the State of Utah’s proffered legitimate government interests of fostering responsible procreation and optimal child-rearing environments, its right to proceed with caution in deciding to extend marriage rights to same-sex couples and to preserve the traditional definition of marriage, are not rationally related to Utah’s prohibition of same-sex marriage.
Following the decision in Kitchen, a record breaking number of same-sex marriages have taken place in Utah. The State of Utah’s requests for a stay of the district court’s decision pending appeal were denied by Judge Shelby and also by the U.S. Court of Appeals for the 10th Circuit. Now, the State of Utah has filed a petition with the Supreme Court requesting a stay of Judge Shelby’s ruling. The granting of a stay would permit Utah to stop issuing marriage licenses to same-sex couples until the appeal is decided by the Tenth Circuit. It is believed by some that by seeking a stay from the Supreme Court, the State of Utah anticipates that the case will ultimately be heard by the Court. The Supreme Court’s apparent reticence in addressing this issue may be short-lived.
Nicholas Fortuna, January 2, 2014.
In the last three weeks, two federal judges differed widely on the constitutionality and effectiveness of the National Security Agency program that collects data on virtually every call made to, from or within the United States. The N.S.A.’s bulk telephony metadata collection program was found to be constitutional in the Case ACLU v. Clapper, decided by federal Judge William H. Pauly III in New York. This decision comes a mere 11 days after federal Judge Richard J. Leon in Washington decided Klayman v. Obama and found the program unconstitutional, calling it “almost Orwellian.” Judge Leon stated that the government failed to make the case that the program is needed to protect the nation. He wrote: “The government does not cite a single instance in which analysis of N.S.A.’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature.” Judge Pauley reached the opposite conclusion on the value of the program and every other significant question before him that was likewise decided by Judge Leon. Judge Pauly emphasized that logically the program could be valuable in certain circumstances and saw where it would have been useful in situations that occurred prior to its creation.
The mechanics of how the program operated was not at issue. The information collected consists of metadata, such as information about what phone numbers were used to make and receive calls, when the calls took place and how long they lasted. The metadata obtained does not include any information about the content of the calls, or names, addresses, or financial information of any party to the calls according to the government. The N.S.A. has been collecting this data for seven years and may retain it for up to five years. The metadata may only be used for counterterrorism purposes. A secret court created by Congress called the Foreign Intelligence Surveillance Court oversees the program. The court is made up of 13 District Court Judges assigned by the Chief Judge of the U.S. Supreme Court.
N.S.A. analysts access the records through queries using “identifiers,” such as telephone numbers associated with terrorist activities. An identifier used to start a query is called a “seed.” To comply with minimization procedures in place, a query using a seed is limited to records within three “hops” from the seed. For example, if it starts with a telephone number as the first seed, the first “hop” will include all phone numbers that the first number has called or received in the last five years. The second hop will include all phone numbers that each of the phone numbers found in the first hop made or received in the last five years. Similarly, the third hop will include all phone numbers found in the second hop called or received in the last five years. Once the universe of numbers is captured for a particular seed, trained N.S.A. analysts use targeted intelligence gathering techniques to determine if there are any possible terrorist related communications. The question each Judge addressed was whether the program violates the Fourth Amendment.
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.” In order to physically intrude on a constitutionally protected area, the government must have probable cause that evidence of wrongdoing will be found. This case does not involve a physical intrusion so Judge Leon framed the issue as “whether plaintiffs have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with metadata of hundreds of millions of other citizens without particularized suspicion of wrongdoing, retains all metadata for five years, and then queries, analyzes, and investigates the data…” Judge Leon found that there is an expectation of privacy in the metadata collected and that a Fourth Amendment search has occurred. Further, such search is likely unreasonable and therefore unconstitutional.
Conversely, Judge Pauly stated there was no legitimate expectation of privacy in telephony metadata created by third parties. In reaching his determination, Judge Pauly relied on U.S. Supreme Court decision in Smith v. Maryland (1979), which arguably is factually different enough from the current case that the reasoning in Smith should not apply. Smith arose from a robbery investigation of an individual by the Baltimore police, where as here, the NSA is obtaining records of all calls on an ongoing basis made to and from the United States. Without a warrant, the Baltimore police requested that the telephone company install a device, known as a pen register, which recorded the numbers dialed from Smith’s home for a limited period of time. The Supreme Court held in that case individuals have no “legitimate expectation of privacy” regarding the numbers they dial because they knowingly give the information to telephone companies when they dial the number. Using the same reasoning, Judge Pauly concluded no Fourth Amendment search is implicated by N.S.A.’s metadata collection program because the information collected was voluntarily turned over to third parties- telephone companies – and therefore did not violate the constitution.
Both decisions are being appealed to their relevant Circuit Courts of Appeals. If the split continues, it is likely the U.S. Supreme Court will have to weigh in and decide the constitutionality of the program.
Paula Lopez, November 24, 2013.
The Second Circuit has unexpectedly removed Shira Scheindlin, a highly respected district court judge of over 20 years and avid proponent of civil liberties, as presiding judge on Floyd v. City of New York, the highly controversial case challenging NYPD’s stop, question and frisk policy. No party in the case requested Judge Scheindlin’s removal.
NYPD’s stop and frisk policy permits police officers to stop a person in a public space if they have reasonable suspicion to believe that the person is engaged in criminal activity. In Floyd, Judge Scheindlin ruled that the policy violated the plaintiffs’ Fourth amendment rights to be free of unreasonable searches and seizures and Fourteenth amendment rights because she found the practices were racially discriminatory. Judge Scheindlin ruling was based on evidence showing that the majority of people stopped under the policy were either Black or Latino and few summonses or arrests resulted from those stops.
In removing Judge Scheindlin and reassigning Floyd to another district judge, the 2d Cir. Panel found that she had engaged in conduct that runs afoul of the federal judicial code of conduct. The Second Circuit’s removal of Judge Scheindlin from Floyd adds to the controversy surrounding the case and also impacts her earlier ruling in Lignon v City of New York, granting plaintiffs’ motion for a preliminary injunction on their claims against the NYPD for unconstitutional trespass stops outside buildings enrolled in Operation Clean Halls, a program by which private property owners authorize the NYPD to enter their property and enforce against suspected criminal activity. Operation Clean Halls is an off-shoot of NYPD’s stop and frisk policy. In both Floyd and Lignon the plaintiffs challenge NYPD’s stop and frisk policy on the grounds that there is a systematic violation of citizens’ constitutional rights by targeting minorities.
The Second Circuit’s decision to remove Judge Scheindlin was made at the time the City moved to stay her January 8, 2013 decision in Lignon and August 12, 2013 decisions in Floyd finding the policy unconstitutional and directing the city to implement certain remedial processes subject to the court’s review and approval and appointing an independent monitor. However, the City’s motion to the Second Circuit merely asked for a stay of enforcement of the decisions pending appeal and never sought Judge Scheindlin’s removal.
At the heart of the Second Circuit’s, sua sponte, decision to reassign Floyd to another judge are certain statements made by Judge Scheindlin during a conference held in 2007 in the case Daniels v. City of New York and the publication of certain media interviews given by her while Floyd was pending. Daniels was the first lawsuit filed against the City challenging its stop and frisk policy which settled in 2004 when the City agreed to implement a written policy governing its stop and frisk practices and to improve officer training. During a 2007 conference in Daniels Judge Scheindlin denied the plaintiff’s motion to extend the settlement terms and generally discussed the plaintiffs’ options of filing a new lawsuit against the City if they believed it was violating its stop and frisk written policy and that such newly filed case could be marked as related to Daniels and that she would accept its assignment. In the media reports cited by the Second Circuit as a basis for the removal, Judge Scheindlin never commented on the merits of Floyd but merely addressed public attacks made against her by proponents of the City’s stop and frisk policies.
Notably, the City never asserted any misconduct by Judge Scheindlin or claimed that her actions gave rise to an appearance of partiality at anytime throughout the 5 years that Floyd was being litigated, or in the notices of appeal or motion for a stay it had filed. In fact, the City never sought Judge Scheindlin’s removal during the last 14 years that she has presided over cases involving the constitutionality of the City’s policies. Further, the City never objected in 2010 to Judge Scheindlin accepting the case Davis v. City of New York as a related case to Floyd, or in 2012 when she accepted Lignon as a related case to Davis. Despite the City’s silence, a three judge panel took it upon itself to order Judge Scheindlin’s removal.
The Plaintiffs in Floyd have made a motion requesting that the full panel of active Second Circuit judges (en banc) review and reconsider the three judge panel’s decision. In their motion for en banc reconsideration, Plaintiffs’ argue, among other things, that the City waived the right to seek Judge Scheindlin’s disqualification and, even though the Second Circuit panel issued the order sua sponte, the City is no longer entitled to such relief. Plaintiff’s motion is supported by an Amicus Curiae brief of six retired district court judges and thirteen legal ethics professors. This motion is still pending.
However, the City has not wasted any time in trying to take advantage of the removal decision—it has already sought to outright vacate Judge Scheindlin rulings in Floyd and Lignon. Although the panel denied the City’s motion to vacate, the decision affords the City the right to argue on appeal that Judge Scheindlin’s decisions should be reversed because of alleged judicial misconduct and/or bias despite never having raised such issues during the 5 years the Floyd case was being litigated or the 14 years of litigating cases in her courtroom. It should be noted that the Second Circuit panel issued an order clarifying its reasons for removing Judge Scheindlin in which they stated that there was no finding of judicial misconduct.
While, it is within the Second Circuit’s power to reassign a case to another judge, in the normal course such reassignment is strictly procedural and unlikely to impact the merits of a case. However, the Second Circuit panel’s removal decision in Floyd is striking because not only could it form the basis for invalidating two crucial decisions that directly affect the constitutional rights of minorities in New York City but could also have the unintended effect of putting district court judges on the defensive and curbing their judicial independence.