Header graphic for print

The Labor & Employment Report

Inability to Speak English Is a Disability?!!!

Posted in Employment Discrimination, Laws & Regulations

OK, I know that I frequently and flippantly say that, under the expanded American with Disabilities Act, we are all disabled. But the situation described in a recent Washington Post blog found by one of my law partners is really beyond ridiculous! Apparently, individuals who can’t speak English may receive federal Social Security disability benefits! Let me reiterate – they are disabled, in part, because they can’t speak English!!!

The Social Security Administration uses an evaluation process for determining whether an individual qualifies for disability benefits. The SSA reviews the severity of a claimant’s medical impairments. If the impairment is not severe, the SSA then determines if the claimant can perform work that he or she has performed in the past. If the claimant can, they are not disabled. If they cannot, but can possibly perform other work, the SSA then assesses their employability by reviewing their age, education, and work experience. A component of education, under Social Security regulations, is the (in)ability to speak English. The SSA then makes a determination whether, considering all these factors under regulatory guidelines, the claimant is disabled and therefore entitled to SS disability benefits.

What is particularly outrageous is the fact that this regulation was applied to non-English-speaking/Spanish-speaking Puerto Ricans (who are covered by federal law because Puerto Rico is a U.S. territory) in Puerto Rico, where both Spanish and English are official languages. In fact, according to the Census Bureau, 95% of Puerto Ricans over age 5 speak Spanish at home and 84% say they do not speak English well. Thus, Spanish is actually the predominant language in Puerto Rico.

This appalling situation came to light through an independent audit report from the Office of the Inspector General of the SSA. The OIG stated that it had identified 218 individuals in Puerto Rico who were granted benefits under these regulatory guidelines. The report noted that the guidelines did not take into account the fact that English may not be the predominant language in areas such as Puerto Rico.

Fortunately, the report notes that the SSA is proposing to update the guidelines. The OIG suggests the SSA should consider modifying the English language rule to take into consideration unique regional circumstances, like those in Puerto Rico.

So, from an employment lawyer’s perspective, this situation makes the ADA, as broadly as it’s now being interpreted, look almost reasonable. But from a taxpayer’s perspective, I am really incensed!!!

 

 

Are Service Writers Exempt Under the FLSA?

Posted in Laws & Regulations, Wage & Hour

Whether Auto Dealer Service Writers (also called Service Advisors) are exempt from federal and state overtime pay requirements has been an issue for years. The U.S. Department of Labor (“DOL”) has flip-flopped on the issue since the exemption for “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles” was written into the Fair Labor Standards Act (“FLSA”) in 1966. The DOL’s latest position was set forth in 2011 when it issued a Final Rule amending the “salesman, partsman, mechanic” exemption that did not include Service Writers employed at a retail dealership as exempt. This was in contradiction to the DOL’s action in 2008, when it issued a Notice of Proposed Rulemaking in which it stated that it considered Service Writers to be exempt.

The Courts have not always agreed with the DOL’s interpretation of this exemption. The U.S. Courts of Appeals for the Fourth Circuit (which includes Maryland, as well as North Carolina, South Carolina, Virginia and West Virginia) and Fifth Circuit (covering Louisiana, Mississippi and Texas), several federal district courts, and the Supreme Court of Montana have found Service Writers exempt. Specifically, the Fourth Circuit in Walton v. Greenbrier Ford, Inc. found that Service Writers are “salesman” because their job is to sell services for cars, and because their role is to help customers receive mechanical work on their cars they are involved in the general business of “servicing automobiles.” The Fifth Circuit in Brennan v. Deel Motors, Inc. found the duties and pay structure of Service Writers to be functionally similar to those of salesman, partsman and mechanics whom the statute expressly exempts.

Just recently, however, the Ninth Circuit, in Navarro v. Encino Motorcars, LLC (March 24, 2015) disagreeing with the Fourth and Fifth Circuits, decided that it was required to defer to the DOL’s interpretation and ruled that an auto dealer’s service advisors did not fall within the FLSA’s “salesman, partsman, mechanic” exemption. Essentially the court said that, while there were good arguments supporting both interpretations of the exemption, where a regulatory agency, like the DOL, has chosen one interpretation, it must defer to that choice. The DOL’s view is the exemption is limited to salesmen who sell vehicles and partsman and mechanics who service vehicles. Service Writers do neither.

What does this mean for auto dealers in Mid-Atlantic? Ultimately this issue may wind its way to the Supreme Court. In the meantime, the Ninth Circuit decision is not controlling on federal district courts outside the Ninth Circuit, like Maryland. That may not be as comforting as it appears on first blush. The Fourth Circuit case was decided in 2004, well before the DOL’s 2011 Final Rule. Given that fact, and the reasoning of a well-regarded court like the Ninth Circuit, it’s entirely possible that the federal court in Maryland or the Fourth Circuit itself could reach a different conclusion than was reached in 2004.

We also note that the DOL is poised to issue proposed regulations that are intended to substantially revise and limit the FLSA white collar exemptions (executive, administrative and professional employees). Once issued, the public will have the opportunity to offer comments on the proposed regulations, and the DOL will then issue final regulations – a process that could take a year or more. Thus, although any impact of these regulations will not be immediate, auto dealers should keep in mind that further changes to service writers’ exemption status may be forthcoming.

FLSA compliance is a tricky area. Wage-hour litigation is a booming industry for plaintiffs’ lawyers. Now may be a good time to revisit your exemption classification decisions in order to stay ahead of current litigation trends.

NLRB Final Rule Expediting Union Elections Takes Effect Next Week

Posted in Labor Law & NLRB, Unions

Absent an injunction issuing in one of the pending cases challenging the National Labor Relations Board’s Final Rule substantially revising its representation case procedures, the rules become effective April 14, 2015. The practical effect is that representation elections will be held in a shorter period of time, which reduces the ability of employers to educate their employees about the impact of unionization. Traditionally, uncontested elections were held within 42 days following the filing of a union petition for election. Although the NLRB has not issued any definitive statement as to the timing of elections under the new Final Rule, all indications are that this 42-day period will be cut almost in half.

This rule has a convoluted history. The NLRB had previously issued a controversial and substantially similar quickie election rule in December 2011. The rule was overturned by a federal court because the Board lacked a quorum at the time it issued the rule, and the Board issued a final rule rescinding the quickie election rule in January 2014. The following month, however, the Board re-issued a proposed quickie election rule. The new Final Rule, which takes effect on Tuesday, April 14, will apply to all representation cases filed on or after that date (pending R-cases will continue to be processed under the prior procedures).

The Final Rule provides as follows:

• Parties may now file or transmit documents electronically, rather than by using mail, hand-delivery, or fax. While parties may e-file using the NLRB’s e-filing system, emailing a Petition to an NLRB Agent does not constitute filing.
• When a union files a petition for a union election, it must serve on the employer a copy of the petition, along with the Board’s description of the new representation case procedures, and a Statement of Position form that identifies issues to be raised at the pre-election hearing. The NLRB Regional Director will serve a Notice of Petition for Election and Notice of Hearing on all parties, likely the same day as the petition was filed. The employer must then file its own Statement of Position form, generally by Noon of the business day before the hearing, identifying the issues it has with the Petition. The petitioner will respond to the issues in the employer’s Statement of Position at the beginning of the hearing. During the hearing, the parties will be limited to litigating only those issues that were raised in their Statements of Position or responses to the other’s Statement. However, NLRB jurisdiction cannot be waived at any point.
• At the same time the employer files its Statement of Position form, the employer must also file a list of prospective voters, with their job classifications, shifts and work locations. Previously, the list of eligible voters did not have to be supplied until after the Regional Director approved an election agreement or directed an election following a hearing.
• The employer must post a Notice of Petition for Election within two business days after being served by the Board. This posting provides more detailed information about the election and voting process to prospective voters.
• Pre-election hearings will generally be scheduled to begin 8 days after the Notice of Hearing is served on the parties. The Regional Director may postpone the hearing for up to 2 business days with a showing of special circumstances, or more if there is a showing of extraordinary circumstances.
• Generally, only those issues necessary to determine whether an election should be held will be heard in the pre-election hearing. Disputes concerning voter eligibility or inclusion, according to the Final Rule, do not have to be decided before the election, and may be heard post-election. This portion of the Final Rule will create uncertainty as to whether an employee is a “supervisor” or simply a leadperson.
• All parties may make a closing argument at the hearing. Written briefs, which were previously commonplace, will be permitted only if the NLRB Regional Director decides they are necessary. However, parties are encouraged to submit written arguments/case citations during the pre-election hearing.
• The employer must submit a final voter list, including phone numbers and e-mail addresses, to the union within two business days of the Regional Director’s approval of an election agreement or decision directing an election.
• Under the old rule, if a party seeks a Request for Review by the Board of a Regional Director’s decision, the election was delayed 25-30 days. The new rule provides that the election will not be stayed after the Regional Director issues a decision and direction of election, unless the Board orders otherwise.
• Post-election, each party may make a single post-election request for review of all pre-election rulings by the Regional Director.
• Post-election hearings on objections to conduct affecting the results of the election generally will begin 21 days after the tally of ballots is issued. Either party has up to 7 days after the tally to file objections.
• Post-election exceptions and requests for review will now be filed directly with the Regional Director, not the Board. The Board may deny review of post-election rulings by the Regional Director.

The NLRB has issued new Petition forms and Statement of Position forms, as well as suggested formats for the Initial List (submitted with Position Statement) and Voter List (submitted after Election Agreement is approved or election is directed. The NLRB has also issued various documents, as well as a General Counsel memorandum, providing detailed guidance on the new Rule.

What is the bottom line? NLRB elections may happen as soon as 15 – 20 days after the Notice of Petition is served on an employer. The time to make sure your employees understand the risks of unionization is prior to receiving the petition.

EEOC Sued For Failing to Accommodate Employee’s Disability

Posted in Litigation, Reasonable Accommodation

In the vein of “man bites dog,” I particularly enjoyed a recent case in which an employee claims that her employer – the Equal Employment Opportunity Commission (?!!!) – failed to accommodate her disability. Yes, the federal agency charged with the enforcement of the Americans with Disabilities Act – the same agency that broadly interprets the ADA in favor of excessive coverage (we’re all disabled, don’t you know?) – the same agency that finds all manner of ridiculous accommodations to be “reasonable” (light duty for everyone!!) – the same agency that is all too willing to find violations of the ADA by innocent employers (my poor clients!) – that agency is now itself charged with failing to comply with its obligations under the ADA!

In Buie v. Berrien (Jacqueline Berrien was the former head of the EEOC), the plaintiff, who worked at the EEOC’s Washington D.C. office, suffered from lung disease and chronic asthma. She requested an accommodation of a private office equipped with an air purifier or, alternatively, to be permitted to telework. The head of the office refused to let her telework and said there were no private offices currently available for her use. The plaintiff was assigned to an open-air cubicle, where her air purifier was ineffective because of the large space. Following surgery for her condition, the plaintiff repeatedly communicated with the Disability Coordinator for the office about her accommodation needs, without success. After several months, she concluded that she was not going to be accommodated in the Washington office. Consequently, she requested and was granted a transfer back to the Charlotte office where she had previously worked and could be provided with a private office and the option to telework – although she was not given the mediator position she wanted and had to take a demotion in grade level. Seven months later, she retired on disability.

The plaintiff then sued the EEOC for failure to accommodate her disability, among other things. Upon receiving the Complaint and before the case proceeded any further, the EEOC moved to dismiss her Complaint, arguing that she failed to state a plausible claim. The EEOC stated that her requested accommodations of a private office and/or telework were not available in the Washington office, and that it granted her an accommodation by facilitating her return to Charlotte. The federal district court, however, found that the plaintiff had made sufficient allegations in her Complaint to allow her claim to proceed- at least with regard to the telework. The court determined that there were questions of fact about whether the plaintiff had to be physically present in the workplace, as the EEOC contended, to perform her job.

The court did agree with the EEOC, however, that the failure to accommodate claim should be tossed as to the private office, since the EEOC was able to demonstrate that there were, in fact, no offices available and that it continued to look for an office until the plaintiff decided to ask for the transfer. In addition, the transfer/demotion claim was also dismissed because the employer is not obligated to provide the accommodation the employee prefers (in this case, the mediator position). Further, the plaintiff could not demonstrate that she could perform the essential functions of that mediator position, which would have required her to be in the office.

Now it may be in the end that the EEOC will be able to demonstrate that the plaintiff’s requested accommodation of telework was unworkable or disruptive or otherwise unreasonable. We’ll have to wait to see how it plays out as the case proceeds through discovery and a possible trial. But in the meantime, I’m just enjoying watching the EEOC on the hot seat for once.

Say What? NLRB ALJ Finds Hospital’s English-Only Rule Unlawful

Posted in HR Compliance, Labor Law & NLRB, Laws & Regulations, Unions, Workplace Trends

The latest office fodder for me and my colleague, Jason Usher (who formerly worked at the National Labor Relations Board (“Board”)), involves an Administrative Law Judge’s (“ALJ”) decision, Valley Health System LLC, that found that a healthcare employer’s English-only rule violated the National Labor Relations Act (“Act”).

Many employers, especially those in the healthcare industry, institute English-only rules for the workplace to ensure the safety and efficient operations of the facility. The Equal Employment Opportunity Commission (“EEOC”) has issued guidance on the subject, permitting such rules provided that the rule is not overly broad and is justified by a “business necessity.” According to the EEOC, the following justify business necessity:

  • In communications with customers, co-workers, or supervisors who only speak English;
  • In emergencies or other situations in which workers must speak a common language to promote safety;
  • For cooperative work assignments in which the English-only rule is needed to promote efficiency; and
  • To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers.

Up until now, however, the Board has not weighed in on English-only policies. This issue was presented before a Board ALJ for the first time in the Valley Health System case. The hospital’s rule required all employees to speak and communicate only in English “when conducting business with each other,” “when patients or customers are present or in close proximity,” and “while on duty between staff, patients, visitors [and/or] customers . . . unless interpretation or translation is requested or required.”  The employer’s rule was compliant with the EEOC’s guidance. Indeed, the rule allowed employees to speak their native language during their own time (before and after their work schedules and on breaks and lunch).

In her decision, however, the ALJ found that the rule violated employees’ rights under Section 7 of the Act to engage in protected “concerted activities,” which includes the ability to discuss and communicate about wages, hours, and other terms and conditions of employment. The ALJ determined that the policy was not sufficiently limited in time and location, and as such, found that employees, especially non-native English speaking employees would reasonably believe that they could not engage in concerted activity.

Understandably, the employer pointed to the EEOC’s guidance in its defense. The ALJ stated, however, that the EEOC guidance is not binding on the Board (WHAT?!!!  They’re both part of the same federal government!), and that the Board disfavors adopting precedent from other administrative agencies (?!!) unless the Board finds it is materially related to the goals and purposes of the Act. Instead, the ALJ based her ruling upon prior Board precedent that analyzed the lawfulness of a workplace rule by looking at whether it would reasonably tend to chill employees from exercising their Section 7 rights. The ALJ found that the English-only rule was vague with respect to time and location, because it required employees to speak only English while on duty and beyond patient care areas, and she also found that it would infringe on an employee’s ability to freely discuss and communicate about working conditions. The ALJ failed to see how patient care would be disrupted if employees were permitted to speak other languages in non-patient care areas and with other employees, staff, visitors, and customers, particularly if non-native English-speaking employees wish to talk about working conditions.

This decision may lead to consternation among employers, including those not in the healthcare field, as their current English-only rule, which may be lawful according to EEOC guidelines, may not be lawful under the Act. The good news though is that the ALJ decision is not binding legal precedent unless it has been adopted by the Board on review of exceptions. The hospitals involved will likely file exceptions, and we’ll have to wait to see what the (admittedly liberal Obama) Board will do.

Take Away:  While the ALJ’s decision is not the law of the land, an employer may wish to review its current English-only work rules to ensure that they are narrowly tailored with respect to time and location to prevent potential unfair labor practice charges and costly litigation.

Give Me a Coffee on the Clover, Hold the “Race Together” Please!!!

Posted in Employment Discrimination, Workplace Trends

I admit I am addicted to Starbucks coffee, particularly the concentrated brew that I can get for extra money on the Clover machine at my local joint. My husband insists I have a store locator chip in my brain (this before I had my i-Phone app with the actual – and BRILLIANT – store locator).IMG_1447

But, I am worried about my coffee joint. It is importuning me to discuss the issue of race in the U.S. with my barista. Indeed, as many news outlets have reported, I am not alone. We don’t want “race together” scrawled on our cardboard coffee cups (we non-ecological folks) or, as apparently my local Starbucks determined to be the middle-ground, written on a tiny whiteboard on the counter area in front of the barista “stage.”

Race matters, in many, many ways in the U.S., but here is why I fear for my beloved Starbucks when it decides to interject open discussion of this unresolved topic into my morning coffee.

  1. I am an employment lawyer. Let me refine that. I am an employment litigator. I defend employers when they are sued. This concept is beyond “diversity training gone wrong” where some “luminary” decides that the males in the office need to decide how it feels to be groped and ogled by the other sex (and so makes that one of the diversity training exercises, resulting in lawsuits). Asking your average barista to field discussions about race is above their pay grade and may lead to situations in which THEY feel harassed based on a protected characteristic/view (let’s just say divergent views on any number of topics – such as Ferguson and the propriety or lack thereof of the police conduct – do not neatly align with coffee house conversation).
  2. My parents schooled me that there are certain conversations that you save for people whom you know – politics and religion among them. I thought my parents were bourgeoisie when I was 21. I now understand at 54 how spot-on they were.  It is not low-brow to appreciate that certain debates are not appropriate in certain contexts (such as a commercial transaction when all I really want to do is wake up my mind, not debate the origins of oppression).
  3. I believe that conversations about important topics should be generated by thoughtful, deliberate dialogue.  I truly respect each and every person who provides me service. I was them 40 years ago. But I was not qualified to mediate discussions of race when I was a waitress and I think asking that of these folks is just not fair.

So, please, Starbucks, “stay in your lane.” You are fulfilling my need for superb coffee that gets me going each day. I have your app on my phone. I am happy whenever you are there in a faraway place that I travel to (although, candidly, not so much in Italy – you don’t cut it there).  But I worry for you when you try to extend yourself – and your unwitting staff – into discussions that are bound only to alienate your loyal clients and, even more troublingly, result in your staff filing claims that they were subjected to racially hostile working environments when they are subjected to “divergent views on race” that simply do not belong in the workplace. With that, I would like a tall Brazil in a Grande cup on the clover (and please, write nothing but “tall” on my cup). Thanks loads!

Managers Gone Wild on Social Media

Posted in HR Compliance, Social Media, Workplace Trends

People are increasingly turning to social media to vent their frustrations, and those frustrations frequently involve the workplace. The problem is that managers, who are deemed to speak and act for the company as a matter of law, can cause problems with a social media rant.

This issue is on my mind because it recently struck close to home. A friend had applied and was being considered for a department head position at a prestigious university – an excruciating process involving repeated trips to the university for multiple rounds of interviews. After many months, the choice was narrowed down to my friend and another candidate. My friend then received a call – FROM HER SISTER – saying, “You better take a look at this blog!” The blog post had been written by a member of the selection committee, who was upset that the committee majority had chosen the other candidate for the position! Yes, that’s right – my friend found out that she did not get the position from a blog post!

What’s the lesson here? Managers should be cautioned to be careful when sharing work-related information on social media. They can be told not to discuss confidential company information – certainly internal decision-making processes should be confidential. Moreover, disclosing disagreement about a company decision undermines that decision and can create dissension and morale issues within the ranks. At a minimum, managers certainly should  not be discussing a decision before it has been officially announced.

Of course, employees’ rights to complain about the terms and conditions of their employment are protected by the National Labor Relations Act – they can complain about management and corporate decisions, and even call managers vulgar names. But managers do not enjoy that same protection, and private employers can take action to prevent managers from sharing information that the employer deems inappropriate – and take action against the managers if they do. (Note that I am not talking about public employers, whose managers may be entitled to certain free speech rights under the 1st Amendment, and different rules may apply in states that have statutes protecting certain off duty legal activities, although for goodness’ sake, companies should still be able to tell managers to “keep it zipped” about hiring deliberations!).

Accommodating a Teacher’s Fear of Children?

Posted in Employment Discrimination, Laws & Regulations, Litigation, Reasonable Accommodation

I love these odd cases – like the one-armed man who wanted to be an “unarmed” security guard, about which I blogged previously. Here’s another one that tickled my funny bone – the teacher with pedophobia, which is a debilitating fear of children! (Let’s just absorb the irony of that for a moment, shall we?)

OK, to be fair, the teacher feared younger children, but was fine with teaching older children – which was the issue in the case of Waltherr-Willard v. Mariemont City Schools. The teacher, whose diagnosis of pedophobia had previously been confirmed for school officials by a doctor, taught all levels of French and introductory Spanish to high school students. The high school decided to move all of its French courses online, which meant that a French teacher was no longer needed. With the teacher’s (self-proclaimed “enthusiastic”) agreement, she was transferred to the middle school for the next school year.

After six months, the teacher asked to be transferred back to the high school, stating that her talents were being “underutilized” and that another year at the middle school would be detrimental to her health. (As the parent of two crazy teenagers, I agree that prolonged interaction with this age group can be very detrimental to anyone’s mental health!!) The school district superintendent told her that there were no openings at the high school because there was already a Spanish teacher there. The teacher retired, and then sued the school district for failing to accommodate her disability of pedophobia, among other things.

The district court granted summary judgment for the school district, finding that her claims were without merit. The U.S. Court of Appeals for the 6th Circuit agreed. With regard to the failure to accommodate claim, the Court noted that the Americans with Disabilities Act requires an employer to accommodate an employee’s disability, but it does not require “unreasonable accommodations.” Requiring the employer to create a new job or to displace a current incumbent in a job is not reasonable as a matter of law, which I am sure you will be happy to know!

 

 

A Seussian Recitation of Yates v. United States

Posted in Uncategorized

As we said yesterday, this case is outside our labor and employment law area of practice, but I was really so entertained by it that I couldn’t let it go just yet.  So, as inspired by Justice Elena Kagan and with apologies to Dr. Seuss:

The fish on the ship were just too small,

So the federal agent ordered they all

Be kept until the ship reached port.

But the captain threw them overboard.

This put the feds into a state –

“No evidence! We can’t investigate!”

They said, “This is a violation of SOX!”*

And they put the captain in a box

For thirty days. “Not fair!” he cried.

An appeal to the 11th Circuit he tried,

But his plea was rejected out of hand.

He took this to the top court in the land.

The Supreme Court tossed his conviction

By looking at a definition:

A fish is not a “tangible object”

That SOX was intended to protect –

Instead, it’s records and documents.

But the dissent cited as precedent

One Fish Two Fish Red Fish Blue Fish!

A fish not an object? Simply foolish.

 

*The Sarbanes-Oxley Act

OK, I’m finished.  Next time, we’ll be back to labor and employment matters – I promise!

The Fisherman and the Sarbanes-Oxley Act

Posted in Laws & Regulations, Litigation

Red GrouperThis case, Yates v. United States, is outside our usual employment law zip code, but it’s such a wacky one, it lured us in. It involves a fisherman who failed to preserve, as evidence, undersized fish that he had caught in violation of federal law. A federal agent found the undersized fish during an offshore inspection of a commercial fishing vessel in the Gulf of Mexico. The agent instructed the ship’s captain to keep the undersized fish separate from the rest of the catch until the ship returned to port.  After the agent left, however, the captain told his crew to pitch the fish overboard.

Casting a wide net, the government charged the captain with violating a provision of the Sarbanes-Oxley Act (SOX) dealing with the destruction of evidence. (Perhaps you remember that SOX was enacted by Congress following the Enron scandal, which made waves in the financial industry by involving massive accounting fraud and the destruction of documents). Under SOX , a person can be fined or imprisoned for up to 20 years if he “knowingly alters, destroys, mutilates, conceals, covers up, falsifies or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence” a federal investigation. The captain was found guilty of destroying a “tangible object” – i.e. the fish.  He was found guilty and sentenced to 30 days. The U.S. Court of Appeals for the 11th Circuit affirmed the conviction, and the captain appealed to the U.S. Supreme Court.

The Supreme Court found that the charges against the captain were fishy. It held that SOX was meant to address destroyed records and information, not red grouper!  In the context of the statute, the destruction of evidence provision immediately follows corporate fraud and financial audit provisions. The term “tangible object” comes at the end of a list of terms that begins with “any record [or] document.” Given the context and placement, a “tangible object” under SOX “is one used to record or preserve information” and does not include the entire universe of objects. As Justice Alito (somewhat whimsically) noted in his concurring opinion,

[T]he term “tangible object” should refer to something similar to records or documents. A fish does not spring to mind – nor does an antelope, a colonial farmhouse, a hydrofoil, or an oil derrick. All are objects that are “tangible.” But who wouldn’t raise an eyebrow if a neighbor, when asked to identify something similar to a “record” or “document,” said “crocodile”?

Now, the Supreme Court wasn’t united in this opinion. Justice Kagan wrote a dissenting opinion, which was joined by Justices Scalia, Kennedy and Thomas. She looked to the ordinary meaning of “tangible object” as “a discrete thing that possesses physical form.” She then went on (even more whimsically) to state:

A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960).

Well, as for this case, I guess it’s the one that got away (from the feds).