On Monday, February 26th, the U.S. Supreme Court will hear oral arguments in Janus v. AFSCME, Council 31, a case that could have a substantial impact on Delaware’s public-sector employers and employees. The Court is being asked to decide whether a public-sector employee who refuses to join a union can be required to pay so-called fair share fees to the union.
The intersection of Facebook use and Free Speech is complicated. Complicated enough, in fact, that the U.S. Supreme Court will weigh in on the subject when it decides a case it is scheduled to hear argument in today, Elonis v. United States.
The basic legal principle at issue is what constitutes a “true threat.” It is a crime to use the phone or Internet to make a “threat to injure” another person. And “true threats” are not protected as speech under the First Amendment. So, “true threats” to injure another made via Facebook can be punishable as crimes. Otherwise, the speech would be protected by the constitution and could not be considered criminal.
But what’s a “true threat?” Is that question to be answered by the “reasonable person” who would be subject to the threat? Or does the speaker have to have intended his words as a threat to constitute a criminal act?
In Elonis, the defendant was arrested after making violent threats directed to his ex-wife (and others). At trial, he testified that he did not intend to frighten anyone and compared his posts to rap lyrics. The jury didn’t buy it and found that a reasonable person would have viewed the posts as “true threats.” So now the Supreme Court will decide what the “true test” for “true threats” should be.
The legal issue may appear easier than it is. The facts of the case may make the speech and speaker less sympathetic. For example, his Facebook comments included the following about his wife, after she left with their two children:
If I only knew then what I know now, I would have smothered [you] with a pillow, dumped your body in the back seat, dropped you off in Toad Creek and made it look like rape and murder.
He later posted, “I’m not gonna rest until your body is a mess, soaked in blood and dying from all the little cuts.” And, when a court issued the wife a protective order, Elonis posted whether it was “thick enough to stop a bullet.” He also threatened to kill an FBI agent and to slaughter a class of kindergarten students, reports the LA Times.
Many employment agreements contain forum-selection clauses naming the state or the court in which any disputes must be litigated, and what state’s law will govern. Employers often name Delaware state courts as the exclusive forum, due to the high quality of Delaware courts and large number of corporations and other entities created in Delaware, and name Delaware law as the governing law.
Some courts have refused to enforce forum-selection clauses on the ground that another state would be more convenient than the named forum, based on the location of witnesses or documents. In a unanimous decision, the U.S. Supreme Court has strongly endorsed enforcement of these clauses. While the facts did not involve an employment dispute, the Court’s reasoning will apply with equal force to such disputes.
The facts involved a construction contract between a firm in Texas and one in Virginia, for work to be performed in Texas. The contract contained a clause naming Virginia as the appropriate forum. When the Texas firm filed a lawsuit in Texas, the Fifth Circuit refused to enforce the forum-selection clause, explaining that the convenience of the parties justified keeping the case in Texas notwithstanding the clause. The Supreme Court reversed. The Court observed that a forum-selection clause must be
given controlling weight in all but the most exceptional cases. . . . When the parties have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case to the forum specified in that clause. Only under extraordinary circumstances unrelated to the convenience of the parties should a [motion to transfer] be denied.
Atl. Marine Constr. Co., Inc. v. U.S. Dist. Ct., No. 12-929 (U.S. Dec. 3, 2013).
Significantly, the Court pointed out that whether the forum-selection clause names another federal court or a state court, the same standard applies, that is, the existence of the clause is to be given great weight. Delaware has a specific statute on choice of law that should be invoked in any forum-selection clause. That statute, 6 Del. C. § 2709, applies to contracts involving $100,000 or more and sets out the language to be used in a forum-selection clause in order to establish the requisite relationship with Delaware. Especially in agreements with senior-level employees, employers would be well advised to consider the use of forum-selection clauses.
Delaware began issuing marriage licenses to gay couples on July 1, 2013, less than a week after the U.S. Supreme Court’s decision striking down the Defense of Marriage Act (DOMA). Delaware will no longer perform civil unions pursuant to the Civil Union Equality Act, which was passed into law in 2010. Couples who entered into a civil union prior to July 1 may convert their civil union into a legally recognized marriage or wait until July 1, 2014, when all remaining civil unions will be automatically converted.
The Court’s DOMA ruling is expected to affect an estimated 1,138 federal benefits, rights, and privileges. For Delaware employers, the impact is potentially significant. Delaware employers must now extend all federal benefits to gay married couples that were previously made available to straight married couples. The impact also is immediate. Unlike with new legislation, there will be no delay between the Court’s ruling and an employer’s obligation to extend benefits.
Although the Supreme Court’s decision will impact who is eligible for benefits, the procedures remain unchanged. For example, the process for requesting and reviewing FMLA leave, COBRA coverage, and other federally mandated benefits of employment will not change.
One step employers should consider is possible adjustments to tax and health-insurance forms. Spouses that could not previously “claim” one another on federal tax forms may need to submit new IRS Form W-4s. In addition, if your company offers ERISA-covered health-insurance plans and did not previously extend benefits to gay couples, those plans will now be open to the enrollment of gay spouses. This means that, if your company offers health insurance coverage to the straight spouses of its employees, the same benefits must now be extended to gay spouses. In addition, gay spouses will now be the primary beneficiary on all 401(k) plans.
In the end, Delaware employers are likely in a better position to adapt to the Supreme Court’s decision, since benefits have been extended under State law since January 1, 2012. Employers should keep in mind that the same benefits must be extended and the same processes will still apply to same-sex married couples. In the event that you think it may be necessary to deviate from this rule of thumb for some unusual circumstances, consider consulting legal counsel before doing so.
In an all too rare unanimous ruling (save for Justice Kagan, who recused herself), the U.S. Supreme Court has held that the anti-retaliation provision of Title VII extends to employees who are in the “zone of interest” with an employee who has filed a charge of discrimination. The facts and findings follow.
A female employee filed a charge of sex discrimination against her employer. A few weeks later, the employer fired the complainant’s fiancee, who had also been a company employee. The fiance then filed a retaliation charge with the EEOC and a subsequent lawsuit.
Justice Scalia, writing for the Court, held that a reprisal against a third party such as the fiancee was covered retaliation under Title VII. The Supreme Court further held that the fiancee was an “aggrieved person,” who had standing to sue under Title VII. Justice Scalia pointed out that the text of the anti-retaliation provision is broader than the substantive provision and that any person who comes within the “zone of interest” that the statute seeks to protect can file suit. The Court leaves it to future cases to determine how far this “zone of interest” extends. The case is Thompson v. North American Stainless, No. 09-291.
The U.S. Supreme Court will hear oral arguments on several important employment-law cases this term. Last week, we posted about the upcoming Kasten v. Saint-Gobain Performance Plastics Corp., in which the Court will address the requirements for an employee who claims retaliation based on the FLSA. And, on Monday, we posted about Staub v. Proctor Hospital, in which the Court will address the cat’s-paw theory in the USERRA context.
The third and final post in this series discusses Thompson v. North American Stainless, LP. In a 10-to-6 decision, the Sixth Circuit held that Title VII does not create a cause of action for third-party retaliation for persons who did not themselves engage in protected activity. In its decision, the Sixth Circuit joined the Third, Fifth, and Eighth Circuit Courts of Appeal in holding that the authorized class of claimants is limited to persons who have personally engaged in a protected activity.
Thompson argued that he was fired because is fiancée, who worked for the same employer, filed an EEOC charge of discrimination. His employer argued that Thompson was discharged for performance-based reasons. Thompson filed his own charge of discrimination with the EEOC, and the administrative agency found reasonable cause that North American Stainless violated Title VII. The EEOC issued Thompson a right to sue notice, and Thompson filed a cause of action against his employer.
North American Stainless eventually moved for summary judgment on the ground that Thompson’s claim – that he was terminated as retaliation for his fiancée’s charge of discrimination – was insufficient as a matter of law under Title VII. The district court granted the employer’s motion, holding that Thompson failed to state a claim for which relief could be granted. Thompson appealed to the Sixth Circuit Court of Appeals. The appellate court affirmed the district court’s opinion.
Thus, on December 7, 2010, the Court will hear argument on whether Title VII creates a cause of action for third-party retaliation for persons who did not themselves engage in protected activity.
The U.S. Supreme Court will hear oral arguments on several important employment-law cases this term. Last week, we posted about the upcoming argument in Kasten v. Saint-Gobain Performance Plastics Corp., in which the Court will address the requirements for an employee who claims retaliation based on the FLSA.
In this, the second part of this series, we look to an equally anticipated case, Staub v. Proctor Hospital. Staub, like Kasten, is on appeal from the Seventh Circuit. In Staub, the Supreme Court will examine under what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced, but did not make, the ultimate employment decision.
Staub sued his employer, alleging that he was discharged in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). Staub prevailed after a jury trial. His employer appealed, and the Seventh Circuit reversed the trial decision.
At trial, Staub proceeded under the “cat’s paw” theory. That theory, derived from the 17th century French fable “The Monkey and the Cat,” is understood today to mean “when one is used by another to accomplish his purposes.” The cat’s paw theory is a way of proving discrimination when the actual decisionmaker is unbiased, but the discriminatory animus of a non-decisionmaker is imputed upon the decisionmaker, typically where the non-decisionmaker has singular influence on the decisionmaker.
Staub, an Army reservist, alleged that the reasons given for his discharge where mere pretext for discrimination based on his association with the military. USERRA prohibits adverse action based upon a prohibited criterion, in this case military status. Like other discrimination law, a plaintiff alleging a USERRA claim must show that the decisionmaker harbored animus toward him and relied upon that animus in choosing to take action against the plaintiff.
Staub won at trial, and his employer appealed. On appeal, the hospital argued, inter alia, that the trial court mishandled the cat’s paw theory. The Seventh Circuit agreed, finding that to succeed on a cat’s paw theory, a plaintiff must demonstrate that the decisionmaker blindly relied upon the non-decisionmaker’s influence. The appellate court also held that prior to admitting evidence of a non-decisionmaker’s animus, a trial court should determine whether a reasonable jury could find the presence of a singular influence over the decisionmaker.
This case is scheduled for oral argument on November 2, 2010. The Court will examine the circumstances which must be present for an employer to be held liable for the unlawful intent of officials who caused or influence, but did not make, the ultimate employment decision.