Co-Author Nick Vogt*

In Janus v. American Federation of State, County, and Municipal Employees, Council 31, the United States Supreme Court held that public sector unions may not assess union fees against non-union employees covered by a collective bargaining agreement. In so holding, the Supreme Court overturned its decades-old ruling in the case of Abood v. Detroit Board of Education, in which the Court held that public sector unions could assess fees regardless of membership status, because all employees benefit from union collective bargaining agreements regardless of union membership. Continue Reading Supreme Court Holds that Public Sector Unions May Not Assess Union Fees Against Non-Union Employees

Apple has a new $5 billion headquarters building on its campus in Cupertino, California.  It was constructed from the imagination of iconic founder, Steve Jobs, who envisioned the structure with its glass-encased interior and exterior rings as a true “temple of design” (according to the San Francisco Chronicle).  In fact, architecture and interior design often are aspirational.  We construct spaces to reflect not who we are, but who we would like to be, to elevate us from the clutter of our messy lives to a higher plateau.  We seek feng shui – uplifting energy.  Sometimes, however, concept clashes with real life (like when I realized my amazing new master bathroom with the walk in shower and granite counters had no place to hang hand towels; my interior designer thought that towel rings would interrupt the feng shui).
Continue Reading Does Apple’s New HQ Violate OSHA?

When you are an employment lawyer, you tend to view events through a particular lens.  Recently, I had my “ADA specs” on when I read an article about a Duke University professor who, in discussing her book, “Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America,” made a remark about Libertarians during a book tour.   She opined how she found it “striking … how many of the architects of this cause seem to be on the autism spectrum,”  The professor, Nancy MacLean, continued, “You know, people who don’t feel solidarity or empathy with others and who have difficult human relationships sometimes.” (You can read the story here.)  Continue Reading Along the Spectrum

The National Labor Relations Board’s Office of the General Counsel recently issued an Advice Memorandum and, although the employer and employee names are blanked out, it obviously is about James Damore and Google. Unless you have been in the wilds of Pago Pago for a year, you have heard the story of James Damore, the “Googler” (that’s what they call themselves at Google) who, in response to one too many company diversity training initiatives, prepared a memo to convey his thoughts and engage in open dialogue. Continue Reading NLRB GC Is Woke! (In more ways than one…)

Leaf raker, babysitter, waitress, retail salesperson, lawyer. I have had many jobs. Each has had value. Often, the pay and benefits did not match the value. When the value of the job exceeded the remuneration, I looked to find the next job. Continue Reading The Value of Labor Goes Beyond Wages

I became the commissioner of my daughter’s county basketball league when she was nine.  No one else would “step up.”  The prior year, a player had slapped another player in the handshake line at the end of a game in retribution for rough play (by an 8-year-old girl!) and no game commissioner was there to intervene.  I decided to take on the role of cool-headed logistics manager: a non-coach who could make sure the game schedule was set, the rules were observed, and each game had a designated adult in attendance to avoid bad sports behavior (whether by players, coaches or parents).  But this “cool headed commissioner” is ripping mad at the NLRB (or, to be more precise, the NLRB majority) for concluding that junior and senior high school lacrosse referees are employees and not independent contractors entitled to unionize! Continue Reading The NLRB Thinks High School Sports Referees Can Unionize!

The issue of whether employees can be required to sign arbitration agreements that contain waivers of their right to file a class or collective action over employment-related disputes is one that has drawn much attention – and much conflict – in recent years. The Obama administration, it seemed, steadfastly opposed such waivers. Under the Trump administration, which (regardless of your politics) has had a slow and bumpy transition of federal agency leadership, the agencies do not appear to be operating from the same playbook – as evidenced by recent actions by the National Labor Relations Board, (NLRB), the Department of Justice (DOJ), and the Consumer Financial Protection Board (CFPB). Continue Reading The Government Seems Confused About Class Action Waivers

keys-minFor nearly 35 years, automobile dealers relied on the U.S. Department of Labor’s position that service advisors fell within the Fair Labor Standards Act’s exemption from overtime for “salesmen, partsmen, or mechanics primarily engaged in selling or servicing automobiles.” In 2011, the DOL “upended” this interpretation by issuing regulations specifying that the exemption did not apply to “sales personnel” unless they sell vehicles.  Thus, service advisors were deemed non-exempt.

In June 2016, in Encino Motorcars, LLC v. Navarro, No. 15-415, 2016 WL 3369424 (2016), the Supreme Court held that the 2011 regulation was not entitled to deference because it was issued without the requisite reasoned explanation for a change.  The Court did not decide whether service advisors are, or are not, exempt.  The U.S. Supreme Court remanded the case to the U.S. Court of Appeals for the Ninth Circuit (which had decided the case below) with instructions that the appellate court not give any deference to the DOL’s regulations.  In other words, the appellate court should review the duties of the position (the sale of repair and maintenance services) and decide if the duties fell within the statutory exemption.

Continue Reading Automobile Service Advisors: Exempt or Non-Exempt

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!

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).