Supreme Court reverses Ninth Circuit because … “Federal judges are appointed for life, not for eternity”

The Supreme Court reversed the Ninth Circuit’s decision in a potentially landmark Equal Pay Act case, because … “Federal judges are appointed for life, not for eternity.” In this per curiam decision, the Supreme Court, not surprisingly, held that a judge needs to be alive to issue a ruling in a case.

How could the Ninth Circuit have thought otherwise? It was an exceedingly controversial case. The Ninth Circuit would have split evenly without the deceased judge’s vote, so the Ninth Circuit, oddly, decided to go ahead and count his vote. In fairness he had expressed his intent to vote one way, and had actually authored an opinion accordingly. He unfortunately passed away though before the opinion was issued. The Supreme Court held that the Ninth Circuit erred by continuing to count his vote (in this case and others). The Court explained that a judge’s vote cannot be counted until an opinion is filed, especially because “a judge may change his or her position up to the very moment when a decision is released.”

Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death.  But federal judges are appointed for life, not for eternity.

The underlying case is very controversial. As explained in a previous blog post, the issue has the potential to bring a pay-history ban to all 50 states by way of federal common law, by interpreting the longstanding Equal Pay Act as effectively banning inquiries and consideration of pay history.

per curiam decision is a decision issued by a court with more than one judge (like the Supreme Court and other appellate courts) that is authored by the court itself, without identifying one or more individual judge’s contributions to the writing of the opinion or even votes in the case. It is not signed by anyone judge (though individual judges may, if they choose, sign dissents).

Source: Yovino v. Rizo, 586 U.S. —, case no. 18-272 (2/25/19)

California continues its contortions over arbitration agreements in employment cases

A trio of recent cases illustrateS how federal and state courts in California continue to struggle with their efforts to reconcile the recent pro-arbitration rulings by the Supreme Court with the historically anti-arbitration approach in California.

In NBCUniversal Media, LLC v. Pickett, the Ninth Circuit of the U.S. Court of Appeals held that an employee was required, under the Supreme Court’s 2009 14 Penn Plaza decision, to arbitrate individual employment discrimination claims under his union’s collective bargaining agreement’s arbitration clause, which read “neither the Union nor any aggrieved employee may file an action or complaint in court on any claim that arises under [an anti-discrimination clause], having expressly waived the right to so file.”

While that seemed to be a relatively straightforward application of the Supreme Court’s arbitration cases, the California Court of Appeals seemed to make the waters muddier in a pair of other cases.

In one case, Del Rosario Martinez v. Ready Pac Produce, Inc., the California Court of Appeals noted that the Supreme Court ruled in its 2011 Concepcion case and then in its 2018 Epic Resources case that an arbitration agreement is enforceable even if it means the employee is unable to pursue a class action. In line with those decisions, the Court held that the plaintiff was required to arbitrate her wage claims even though she was unable to pursue a class action.

However, in the other case, Ramos v. Superior Court of San Francisco County, the California Court of Appeals considered the same Supreme Court decisions and held they did not alter the fundamental underlying approach that California has taken against arbitration of employment claims, since the California Supreme Court’s 2000 decision in Armendariz. Under the Armendariz approach, the Court then held the arbitration agreement in this case was unconscionable and therefore unenforceable under California law, even though it would have been enforceable under federal law:

In sum, the arbitration agreement as applied to Ramos’s statutory and wrongful termination claims contains four unconscionable terms. The provisions requiring Ramos to pay half the costs of arbitration, pay her own attorney fees, restricting the ability of the panel of arbitrators to “override” or “substitute its judgment” for that of the partnership, and the confidentiality clause, are unconscionable and significantly inhibit Ramos’s ability to pursue her unwaivable statutory claims. Because we are unable to cure the unconscionability simply by striking these clauses, and would instead have to reform the parties’ agreement in order to enforce it, we must find the agreement void as a matter of law.

These three cases don’t answer every, or even most, questions about arbitration agreements in California employment cases. They do illustrate the federal and state courts continuing efforts to try to reconcile California’s Armendariz approach with the Supreme Court’s. Employers who wish to utilize arbitration agreements in California should carefully consider their options.

NLRB General Counsel eases rules for deferral to arbitration

What if a union files a grievance under the collective bargaining agreement alleging a violation of the CBA, and then also files a charge at the NLRB alleging a violation (unfair labor practice) of the NLRA premised on the same facts? What if the timeline is reversed: The union files its ULP charge at the NLRB first then its CBA grievance? What if the union files only a ULP and for whatever reason declines to file a CBA grievance, maybe because it knows it’s case lacks merit and fears losing an arbitration of the grievance?

Can a company in any of those scenarios ask the Board to defer to the arbitration process in the CBA? The answer had historically been, yes, to all three situations, though with some caveats. This is generally called Spielberg deferral (though technically it is called Collyer deferral or Dubo deferral depending on the timing of the various kinds of scenarios).

In its 2014 Babcock & Wilcox decision, the Board carved out one scenario for special consideration: Where the union/employee has filed a ULP charge alleging a violation of sections 8(a)(3) or 8(a)(1) but have not yet filed a grievance under the CBA. The Board added special requirements for deferral in such cases.

The NLRB General Counsel has, now, opined that he believes Babcock & Wilcox was wrongly decided. He has asked the Board to reconsider when the issue next arises in a case.

In the meantime the NLRB General Counsel has instructed Board personnel to stop applying the Babcock & Wilcox additional requirements at least in cases where a grievance has been filed but the arbitrator has yet to rule (i.e., Dubo cases). Instead of the Babcock & Wilcox factors, the NLRB General Counsel has instructed Board personnel to look at whether the union can pursue its grievance to arbitration not whether it has agreed or even wishes to do so.

Source: NLRB General Counsel memorandum no. 19-03 (12/28/18).

Excited to be a presenter at ASIS Assets Protection Course Practical Applications APCII 6/24-26/19

I’m excited to be a presenter at ASIS Assets Protection Course Practical Applications APCII 6/24-26/19. Come join us in Atlanta!
https://www.asisonline.org/professional-development/classroom-programs/asis-assets-protection-course-practical-applications-apcii/?utm_source=Real%20Magnet&utm_medium=Email&utm_term=gene.ferraro@forensicpathways.com&utm_content=02-14%20education%20line-up&utm_campaign=Classroom%20Programs

Honored to be named a Super Lawyer in 5280 magazine!

Honored to be named a Super Lawyer in 5280 magazine!

Honored to be named in Super Lawyers for 2019!

Honored to be named in Super Lawyers for 2019!

NLRB limits “Army of One” cases

Taking a cue from the longtime successful ad campaign, labor practitioners refer to a category of NLRB charges as so-called “Army of One” cases. The National Labor Relations Act protected only concerted activity, which generally means two or more people working together, to further their wages, hours and working conditions. In an Army of One case, that principle is extended to cover the protests of a single employee; the Army of One doctrine allows a single person, who doesn’t act in “concert” with anyone else, to assert a violation of the NLRA if he is acting on behalf of his colleauges.

In its 2011 decision WorldMark by Wyndham, the NLRB extended the Army of One doctrine to individual gripes that are asserted in a group setting. Before WorldMark, the Board had looked for actual evidence of “group activities” prior to the protest, such as evidence of an actual discussion between the workers discussing the complaint that the individual ended up lodging. In WorldMark the Board recognized the ability of a single individual to become an Army of One, i.e., to engage in NLRA-protected activities, by making a complaint in a group setting.

Now, the Board has reversed WorldMark. No longer is simply making a complaint in a group setting sufficient. Instead the Board identified five factors to be considered.

The fact that a statement is made at a meeting, in a group setting or with other employees present will not automatically make the statement concerted activity. Rather, to be concerted activity, an individual employee’s statement to a supervisor or manager must either bring a truly group complaint regarding a workplace issue to management’s attention, or the totality of the circumstances must support a reasonable inference that in making the statement, the employee was seeking to initiate, induce or prepare for group action. … (R)elevant factors that would tend to support drawing such an inference include that (1) the statement was made in an employee meeting called by the employer to announce a decision affecting wages, hours, or some other term or condition of employment; (2) the decision affects multiple employees attending the meeting; (3) the employee who speaks up in response to the announcement did so to protest or complain about the decision, not merely (as in WorldMark) to ask questions about how the decision has been or will be implemented; (4) the speaker protested or complained about the decision’s effect on the work force generally or some portion of the work force, not solely about its effect on the speaker him- or herself; and (5) the meeting presented the first opportunity employees had to address the decision, so that the speaker had no opportunity to discuss it with other employees beforehand.

Applying this approach to the facts of this case, the Board rejected an airport skycap’s claim that he’d engaged in Army of One protected activity when he said (to a customer), in the presence of his colleagues, that “we” had performed a certain task “and we didn’t receive a tip for it.”  Even his use of “we” was held insufficient.

(I)ndividual griping does not qualify as concerted activity solely because it is carried out in the presence of other employees and a supervisor and includes the use of the first-person plural pronoun.

Source: Alstate Maintenance, LLC, 367 NLRB No. 68 (2019).