The Americans With Disabilities Act (ADA) is a federal law that prohibits discrimination against employees with disabilities.  It applies to employers with at least 15 full-time employees.  The ADA not only protects employees who are disabled or have a "record" of being disabled, it also protects employees who are "regarded as" disabled by their employer as well as employees who are "known to have a relationship or association" with another person who is disabled.

The term "disability" has a specific meaning under the ADA.  Under the ADA, "disability" means (i) "a physical or mental impairment that substantially limits one or more major life activities"; (ii) "a record of such impairment"; or (iii) "being regarded as having such an impairment."  See 42 U.S.C. s. 12101.  Examples of major life activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, speaking, breathing, learning, reading, thinking, communicating, and working.  The statute further defines "major life activities" to include the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Note:  Employees who are "regarded as" disabled by their employers do not have to prove that they in fact have an impairment or that they are substantially limited in their major life activities or that their employer believes they are substantially limited in their major life activities.  It is sufficient  that their employer believes, even mistakenly, that they have a disabling condition.  See 42 U.S.C. s. 12102(3).

The first question is whether an employee who is an alcoholic has a "disability" within the meaning of the ADA?

Courts generally agree that an employee suffering from alcohlism has "a physical or mental impairment."  They do not always agree, however, that such an employee's major life activities are substantially limited by his condition.  This requires proof, usually supplied by the plaintiff, that meets the statutory requirements.  That is, the plaintiff must show that his disability (alcoholism) substantially limits one or more of his major life activities.  Nevertheless, in most cases, the court will find, or the employer will concede, that an alcoholic employee has a "disability" within the meaning of the ADA.

The second question is whether an alcoholic employee is qualified to perform the essential functions of the position?

Importantly, only "qualified" employees are protected by the ADA. See 42 U.S.C. s. 12112(a) (prohibiting discrimination "against a qualified individual on the basis of disability").  Many ADA lawsuits based on alcoholism lose in court because the plaintiff cannot prove that he was qualified to perform the essential functions of his position.  The essential functions of a position are the fundamental duties and responsibilities of the job, as defined and judged by the employer.  Significantly, attendance and punctuality are essential functions of most positions.  If an alcoholic employee cannot meet these requirements, he may not been deemed "qualified" for the position; hence, he may not be protected under the ADA.

The third question is whether an employer is required to "reasonably accomodate" an alcoholic employee?

It depends.  An employer is not required to accommodate an employee's intoxication or the adverse effects of excessive alcohol use.  For example, even if an employee has the disability of alcoholism, the employer is not required to allow the employee to arrive late to work due to the effects of a hangover.  On the other hand, the employer may be required to accommodate the employee's efforts to obtain treatment for the alcoholism.  As an EEOC guidance memorandum explains:

Example: An employer has warned an employee several times about her tardiness. The next time the employee is tardy, the employer issues her a written warning stating one more late arrival will result in termination. The employee tells the employer that she is an alcoholic, her late arrivals are due to drinking on the previous night, and she recognizes that she needs treatment. The employer does not have to rescind the written warning and does not have to grant an accommodation that supports the employee’s drinking, such as a modified work schedule that allows her to arrive late in the morning due to the effects of drinking on the previous night. However, absent undue hardship, the employer must grant the employee’s request to take leave for the next month to enter a rehabilitation program.              

The final question is whether an employer can discipline an alcoholic employee for poor performance or workplace misconduct caused by or related to his drinking?

Yes.  The ADA expressly provides that an employer "may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee."  In other words, there is no "alcoholism" excuse for poor performance or workplace misconduct.  Employees who drink on the job or who are drunk on the job or who fail to perform their duties due to drinking or who engage in misconduct due to drinking may be subject to appropriate discipline, up to and including termination.  The only caveat is that the employer must treat alcoholic and non-alcoholic employees the same, and may not impose different penalties for the same offenses depending on whether or not the employee is an alcoholic.  That is, the employer may not single out alcoholics for worse discipline than their non-alcoholic co-workers.  As the EEOC explains:

The ADA specifically provides that employers may require an employee who is an alcoholic or who engages in the illegal use of drugs to meet the same standards of performance and behavior as other employees.  This means that poor job performance or unsatisfactory behavior – such as absenteeism, tardiness, insubordination, or on-the-job accidents – related to an employee’s alcoholism or illegal use of drugs need not be tolerated if similar performance or conduct would not be acceptable for other employees.

Example: A federal police officer is involved in an accident on agency property for which he is charged with driving under the influence of alcohol (DUI). Approximately one month later, the employee receives a termination notice stating that his conduct makes it inappropriate for him to continue in his job. The employee states that this incident made him realize he is an alcoholic and that he is obtaining treatment, and he seeks to remain in his job. The employer may proceed with the termination.

Example: An employer has a lax attitude about employees arriving at work on time. One day a supervisor sees an employee he knows to be a recovered alcoholic come in late. Although the employee’s tardiness is no worse than other workers and there is no evidence to suggest the tardiness is related to drinking, the supervisor believes such conduct may signal that the employee is drinking again. Thus, the employer reprimands the employee for being tardy. The supervisor’s actions violate the ADA because the employer is holding an employee with a disability to a higher standard than similarly situated workers.  

In sum, alcoholism probably is a "disability" under the ADA, and employers may be required to accommodate an alcoholic employee's reasonable efforts at treatment and rehabilitiation (for example, by providing a flexible work schedule so the employee can attend Alcoholics Anonymous meetings).  But this does not mean that an alcoholic employee is excused from meeting the employer's required performance and conduct standards.  Any violations of these standards, even if caused by or related to the employee's drinking (for example, an on-the-job accident caused by being drunk), may result in the employee being disciplined, up to and including termination.

An interesting case involving the issue of alcoholism recently was decided by Judge Raymond J. Dearie of the U.S. District Court for the Eastern District of New York.  Darcy v. City of New York, No. 06-CV-2246, 2011 WL 841375 (E.D.N.Y. Mar. 8, 2011) (link here).  In Darcy, the plaintiff was a New York City police officer who claimed that he was transferred to a less prestigious assignment because his superiors believed he was an alcoholic, which he denied, based on his friendship with another police officer who was an alcoholic.  He asserted a "regarded as" claim and an "association" claim under the ADA.  The court explained that the "regarded as" claim required the plaintiff to prove that he was perceived by his employer to be an alcoholic; it did not require him to prove that the employer's belief was correct or that the employer believed he was substantially limited in any major life activities.  With respect to the "association" claim, the court explained that the plaintiff was required to prove that the employer knew he had a relative or associate with a disability and took an adverse action against him because of that relationship.  In Darcy, the district court denied the City's motion for summary judgment on both claims.  However, the court's decision was based on its retroactive application of the 2009 amendments to the ADA (which broadened the law), which subsequently were held not to apply retroactively.  Accordingly, the City has filed another motion for summary judgment, which was pending at the time of this post.     

For further discussion about alcoholism and the ADA, see here.    

What is an ACD?

An ACD is a special type of dismissal of criminal charges, set forth in N.Y. Criminal Procedure Law 170.55.  It applies in misdemeanor cases, and may be entered at any time before the defendant pleads guilty or the criminal trial commences.  It may be entered upon motion by the prosecutor, the defendant, or the court with the consent of both parties.  An ACD "is an adjournment of the action without date ordered with a view to ultimate dismissal of the accusatory instrument in furtherance of justice."  This means that the criminal proceeding against the defendant will be adjourned (suspended) for a certain period of time -- usually six months (one year for certain drug and domestic offenses) -- at the end of which, the charges against the defendant will be dismissed.  The defendant is required to "keep out of trouble" during this six month period, however, otherwise the criminal charges against him may be restored by the prosecutor.  (Technically, the charges may be restored if the dismissal "would not be in furtherance of justice.")

What is the effect of an ACD?

Many defendants believe that accepting an ACD means they are admitting guilt.  This is not correct.  An ACD is not a guilty plea or an admission of guilt.  The law is clear:  "The granting of an adjournment in contemplation of dismissal shall not be deemed to be a conviction or an admission of guilt."  N.Y. Criminal Procedure Law 150.55(8).  The law further provides:  "No person shall suffer any disability or forfeiture as a result of such an order.  Upon the dismissal of the accusatory instrument pursuant to this section, the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution."  Furthermore, the law requires that "the record of such action or proceeding shall be sealed."  N.Y. Criminal Procedure Law 160.50.  In other words, an ACD means that the arrest and prosecution never happened.    

Can a person who accepts an ACD sue the police for false arrest and false imprisonment?

Yes.  Although some courts have stated otherwise, the weight of authoritative opinion holds that an ACD does not affect a person's right to sue the police for false arrest, false imprisonment, or excessive force.  See, e.g., Hollender v. Trump Village Coop., Inc., 58 N.Y.2d 420 (1983); Singer v. Fulton County Sheriff, 63 F.3d 110 (2d Cir. 1995); Graham v. People, No. 07-CV-1690 (JG), 2009 WL 1531097 (E.D.N.Y. June 2, 2009).  The only claims that an ACD defeats are claims that require the plaintiff to show that a criminal proceeding was terminated in his favor.  (An ACD is not a finding of innocence; it simply wipes the slate clean.)  This includes malicious prosecution.  See, e.g., Daniel v. Safir, 175 F. Supp.2d 474 (E.D.N.Y. 2001).  Therefore, a person who accepts an ACD can sue the police for arresting and imprisoning him, but may not sue the police for prosecuting him.

Should a defendant accept an ACD?

It depends, of course.  A defendant offered an ACD should discuss the matter carefully with his attorney.  From the perspective of a civil rights attorney, however, there is little downside to an ACD.  First, it ends the criminal procecution quickly and efficiently, avoiding the risk of conviction and any adverse findings by the criminal court (for example, that the police had probable cause to arrest).  Second, although an ACD bars a claim for malicious prosecution, as a practical matter this claim rarely adds much "value" (money damages) to a plaintiff's potential civil rights lawsuit in these cases.  The plaintiff's damages primarily come from the arrest and imprisonment.  These damages don't go away if the person accepts an ACD.  Besides, it would be illogical to reject an ACD, which ends the criminal proceeding, in the hopes of later asserting a malicious prosecution claim against the police.  Third, very importantly, a person who wants to "vindicate his rights" in court will have a much better opportunity to do so in a civil rights action than in a criminal proceeding.  In a civil rights action, the plaintiff is better able to define the litigation, obtain discovery, and maneuver the case towards settlement or trial.  Last but not least, money damages are only recoverable in a civil rights action.  For all of these reasons, I generally advise my clients who have been charged with minor crimes to request and accept an ACD at the first opportunity.

For more information about ACDs, see here and here.            

Ordinarily, settlements are confidential agreements between the parties whereby the plaintiff agrees to dismiss his/her claims against the defendant in exchange for a monetary payment; the defendant, in agreeing to make such payment, does not admit liability. Settlements can be win-win situations that resolve disputes efficiently, provide the parties with finality, and guarantee that the plaintiff receives at least some compensation for his/her injuries.

The legal system tends to encourage settlements.  Judges often urge, and sometimes even browbeat, the parties to reach a settlement.  The uncertainty of jury verdicts provides an incentive for the parties to settle.  The rules of evidence (e.g., Federal Rule of Evidence 408 and similar state rules) encourage settlement negotiations by excluding what is said during such negotiations from trial.

Another device intended to encourage the settlement of litigation is the “offer of judgment” pursuant to Federal Rule of Civil Procedure 68.  (Many states have a similar procedural rule.)  Rule 68 (amended in 2009) provides as follows:

(a) Making an Offer; Judgment on an Accepted Offer.

At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued.  If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment.

(b) Unaccepted Offer.

An unaccepted offer is considered withdrawn, but it does not preclude a later offer. Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs.

(c) Offer After Liability Is Determined.

When one party's liability to another has been determined but the extent of liability remains to be determined by further proceedings, the party held liable may make an offer of judgment. It must be served within a reasonable time – but at least 14 days – before the date set for a hearing to determine the extent of liability.

(d) Paying Costs After an Unaccepted Offer.

If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.

What distinguishes a Rule 68 offer of judgment from an ordinary settlement offer? 

First, a Rule 68 offer of judgment is not confidential.  It is filed with the court and becomes part of the public record about a lawsuit.

Second, it operates legally as a finding of liability.  This is what “judgment” means.  It means that the defendant is being held liable to the plaintiff.  Of course, the rule provides that the party making an offer of judgment may do so “on specified terms.”  Consequently, most defendants state that their offer of judgment is “not to be construed as an admission of liability,” just like they do in an ordinary settlement agreement.  Such a disclaimer, however, is meaningless legally (perhaps it has public relations value).  The very nature of the offer of judgment is that it “allow[s] judgment” to be entered against the defendant in the case.

Why would a defendant do this?

This brings us to the third main difference between a Rule 68 offer of judgment and an ordinary settlement offer.

With an ordinary settlement offer, there are no legal consequences to the plaintiff for rejecting such an offer.  With an offer of judgment, however, there can be significant legal consequences to the plaintiff for rejecting such an offer.

Specifically, if the plaintiff rejects an offer of judgment (say, for $25,000) and the judgment he/she finally obtains is less favorable than the offer (say, the jury awards only $10,000), then the plaintiff must pay all of the costs incurred after the offer was made.  This means that the plaintiff not only has to pay his/her own post-offer costs, but also must pay the defendant’s post-offer costs (e.g., for court filings, depositions, trial exhibits, etc.).  Depending on the case, these costs may be substantial.  The offer of judgment, therefore, can serve as a powerful incentive to “settle” claims, and must be considered very carefully by the plaintiff.

Unfortunately, the wording of Rule 68 is vague, incomplete, and difficult to understand.  The two main questions about Rule 68 are (1) Does it apply when the plaintiff loses the case?  and (2) Does it require the plaintiff to pay the defendant’s attorney’s fees in addition to costs?

The answer to the first question clearly is no.  This was the issue decided by the U.S. Supreme Court in Delta Air Lines, Inc. v. August, 450 U.S. 346 (1981).  In that case, the plaintiff sued Delta Air Lines for race discrimination in violation of Title VII of the Civil Rights Act of 1964.  A few months after the complaint was filed, the defendant made an offer of judgment in the amount of $450.  The plaintiff rejected the offer.  Subsequently, the plaintiff lost at trial.  The defendant then moved for an order requiring the plaintiff to pay the costs incurred by the defendant after the offer was made.  The district court denied the motion, and the court of appeals affirmed.  The Supreme Court affirmed, but on different grounds.

Whereas the lower courts had held that the company’s $450 offer had not been made in a good faith attempt to settle the case, the Supreme Court held that Rule 68 does not apply where judgment is entered against the plaintiff (offeree) and in favor of the defendant (offeror).  As the Court explained, “the plain language of Rule 68 confines its effect to . . . [cases] in which the plaintiff has obtained a judgment for an amount less favorable than the defendant’s settlement offer”; therefore, “it is clear that [Rule 68] applies only to offers made by the defendant and only to judgments obtained by the plaintiff.”  (Note:  Losing plaintiffs, and losing defendants, can be held liable for costs under Federal Rule of Civil Procedure 54 and similar state rules.)

Turning to the second question, regarding attorney's fees, the answer also is no. 

This question has not been addressed by the Supreme Court.  In Marek v. Chesny, 473 U.S. 1 (1985), the Court answered a different but related question:  “whether attorney’s fees incurred by the plaintiff subsequent to an offer of settlement under Federal Rule of Civil Procedure 68 must be paid by the defendant under 42 U.S.C. § 1988, when the plaintiff recovers a judgment less than the offer.”  The Court said no.  In that situation, Rule 68 acts to cut off the defendant’s liability for attorney’s fees to the plaintiff because Section 1988 defines attorney’s fees “as part of the costs” of litigation.  This means that a prevailing plaintiff will not be able to receive an award of attorney’s fees under a statute like Section 1988 if he/she does not obtain a judgment more favorable than the defendant’s offer of judgment.

But does this mean, on the other hand, that the plaintiff will have to pay the defendant’s attorney’s fees?  This question was addressed by Judge Leonard Wexler of the U.S. District Court for the Eastern District of New York in Boisson v. Banian Ltd., 221 F.R.D. 378 (E.D.N.Y. 2004) (link not available).  The key portion of Judge Wexler’s decision reads:

Although Marek precludes a plaintiff from recovering attorneys' fees incurred after the making of the Rule 68 offer, it does not discuss whether the offering defendant is entitled to recover attorneys' fees incurred after the making of the offer. Most courts considering this issue in the context of civil rights actions, have held that there is no such right to recovery. See, e.g., Le v. University of Pennsylvania, 321 F.3d 403 410–11(3d Cir.2003) (denying defendant Rule 68 attorneys' fees in Title VII action); Payne v. Milwaukee County, 288 F.3d 1021, 1027 (7th Cir.2002) (denying defendant Rule 68 attorneys' fees in case brought pursuant to 42 U.S.C. § 1983) E.E.O.C. v. Bailey Ford, Inc., 26 F.3d 570 (5th Cir.1994) (same); O'Brien v. City of Greers Ferry, 873 F.2d 1115 (8th Cir.1989) (same); Crossman v. Marcoccio, 806 F.2d 329 (1st Cir.1986) (same); Jolly v. Coughlin, 1999 WL 20895 *12 (S.D.N.Y.1999) (same).

Courts denying defendants the right to recover post-offer attorneys' fees note that while Marek states, simply, that “costs” include attorneys' fees where authorized by statute, Marek also holds that such costs are recoverable only if they are “properly awardable” under the relevant statute. Marek, 473 U.S. at 9, 105 S.Ct. 3012; see, e.g., Crossman, 806 F.2d at 333–34. Where, as in civil rights cases, costs and fees are properly awardable only to the prevailing party, a defendant who has not prevailed is not entitled to attorneys' fees when seeking to collect costs pursuant to Rule 68. Id.

Cases involving other fee shifting statutes have similarly held that attorneys' fees may be recovered pursuant to Rule 68 only if such fees are “properly awardable” under the relevant statute. If prevailing party status is a prerequisite to such an award, a defendant who has not “prevailed” within the meaning of the statute, may not recover attorneys' fees as part of a Rule 68 award. See, e.g., Champion, 342 F.3d at 1030–31(denying defendant attorneys' fees in case arising under state law defining costs to include fees to a prevailing party); Poteete v. Capital Engineering, Inc., 185 F.3d 804, 807–08 (7th Cir.1999) (denying defendant attorneys' fees in case arising under ERISA statute entitling fees only to prevailing party); cf. United States v. Trident Seafoods Corp., 92 F.3d 855, 860 (9th Cir.1996) (denying defendant attorneys' fees in case brought pursuant to Clean Air Act which awards fees only if the action commenced against the defendant was “unreasonable”).

Thus, as Judge Wexler explained, the key is whether the attorney’s fee statute at issue allows a non-prevailing party to recover attorney’s fees.  Because such statutes, like Section 1988, only award fees to prevailing parties (I am not aware of any exceptions), a defendant that loses the case will not be entitled to attorney’s fees under Rule 68, even if Rule 68 otherwise applies with respect to costs.

For useful commentary on Rule 68, see here and here.

Thompson v. North American Stainless

The issue before the Supreme Court in Thompson was whether Title VII provided a cause of action for one employee who was fired in retaliation for another employee's protected activity.  On the facts of the case before it, the Supreme Court unanimously held that Title VII did authorize a lawsuit by the second employee.  See the opinion here (written by Justice Scalia). 

The plaintiff in Thompson worked for North American Stainless and was the fiance of another employee who had filed a complaint of discrimination against the company with the EEOC.  The plaintiff alleged that in retaliation for the other employee's complaint, the company fired him.  It was undisputed that the other employee's complaint constituted protected activity within the meaning of Title VII's anti-retaliation provision.  The Supreme Court also had "little difficulty" finding that firing the plaintiff constituted unlawful retaliation under Title VII.  Citing its previous decision in Burlington Northern v. White, 548 U.S. 53 (2006), the Court explained that Title VII's anti-retaliation provision is violated by any employer action that "might have dissuaded a reasonable worker from making or supporting a charge of discrimination."  To the Court, it was "obvious" that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance would be fired.

The central question in Thompson, however, was not whether the person who complained to the EEOC had a cause of action for retaliation (she did), but whether the person who was fired in response -- her fiance -- had a cause of action.  The Court said yes.

The issue turned on the meaning of Title VII's right-of-action provision, which states that "a civil action may be brought . . . by the person claiming to be aggrieved."  Who constitutes an "aggrieved person"?  The Court rejected the broadest reading of the statute, which extended the meaning of "aggrieved person" to the limits of Article III standing (i.e., a person claiming an injury-in-fact caused by the defendant and remediable by the court), because "abusrd consequences would follow," for example, authorizing Title VII lawsuits by corporate shareholders who allege that job discrimination harmed stock prices.

Instead, the Court applied a "zone of interests" test to Title VII, which it adopted from existing jurisprudence under the Administrative Procedures Act.  Under the "zone of interests" test a person qualifies as "aggrieved," and therefore authorized to file suit, if his asserted interests arguably are protected by the statute.  Conversely, a person falls outside the applicable zone of interests "if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit."

Although the Court "decline[d] to identify a fixed class of reltaionships for which third-party reprisals are unlawful," it concluded that the plaintiff "falls within the zone of interests protected by Title VII."  As the Court explained:

Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation -- collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII. He is a person aggrieved with standing to sue.

For useful commentary on the Thompson case, see here, here, and here.      

The person in question in the case worked as a lawyer/lobbyist in Albany, New York.  He was hired by Empire State Towing and Recovery Association to provide them with legal and lobbying services.  He later was hired by Empire State to serve as their Executive Director, performing certain "administrative services."  He served in this capacity from 1997 to 2006.  The Department of Labor ruled that he was an employee and ordered the association to pay state unemployment insurance premiums for him.  This decision was affirmed on appeal by the Unemployment Insurance Appeal Board and then by the Appellate Division, Third Department (under a "substantial evidence" standard of review).  The Court of Appeals reversed.

In its decision, the Court of Appeals recited the applicable legal test (citations omitted below):

It is well-settled that

“[w]hether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the appeal board, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary decision."

An employer-employee relationship exists when the evidence shows that the employer exercises control over the results produced or the means used to achieve the results. However, “control over the means is the more important factor to be considered."  “Incidental control over the results produced -- without further evidence of control over the means employed to achieve the results -- will not constitute substantial evidence of an employer-employee relationship."

So what were the operative facts in this case?  As summarized by the Court of Appeals:

Pursuant to the written agreement, O'Connell maintained a telephone and computer database in the name of the association, mailed dues and membership materials, mailed periodic financial statements to board members, and coordinated publication of a journal. He also attended board meetings, maintained a bank account, and had check writing authority up to $500. For greater monetary amounts, O'Connell had to submit documentation accounting for the required amount and obtain the signature of Empire State Towing's treasurer. O'Connell performed all these services from his own law office, was free to set his own schedule, and was not working exclusively for the association.

In 2004, a part-time assistant was hired to help O'Connell in his duties as executive director. It is conceded that the part-time assistant was an employee of the association.

On this record, the Court of Appeals concluded that there was not substantial evidence that the Executive Director was the association's employee; therefore, he was an independent contractor and the association was not required to pay unemployment insurance premiums for him.

This decision is hard to explain.  The person in question served as an administrative officer of Empire State and performed specific organizational functions for the association; he was not providing independent professional services (as when he provided legal and lobbying services).  Moreover, the person who assisted him in his duties was considered an employee of Empire State, yet the Executive Director was not.  This makes no sense.  The Executive Director was not a provider of third-party membership services; he worked directly for Empire State.  The fact that he only worked part-time and from his own law office didn't change the nature of the employment relationship with Empire State, which clearly exercised control over both the means and the results of the job.

In my opinion, the key fact of this case was that the person in question was a lawyer.  I think the Court of Appeals reached its decision because it wanted to protect the professional independence of lawyers.  I would be surprised if the Court reached the same decision in an otherwise identical case that did not involve a lawyer.  My advice to employers is not to read too much into this decision, which appears to fall outside the main trend of defining most workers (including part-time and at-home workers) as "employees" for purposes of labor and employment law coverage.

For useful commentary on the Empire State case, see here and here.

Be careful who you decide to sue; sometimes they fight back.  A California appellate court has affirmed a lower court decision to allow a malicious prosecution case to go forward against a personal injury attorney who sued a bride and groom and one of their guests after his client, also a guest, was involved in a wedding-reception brawl.  The client's lawsuit was unsuccessful.  Now the defendants are suing the lawyer for hundreds of thousands of dollars.  (NLJ) 

When is political speech a crime?  Earlier this month former House Majority Leader Tom DeLay (R-TX) was sentenced on money laundering and conspiracy charges for allegedly funneling $190,000 in corporate campaign donations to various Republicans running for the Texas legislature in 2002, in violation of state law.  He was convicted by a jury in November.  DeLay was sentenced to three years in jail on the conspiracy charge and 10 years of probation on the money laundering charge.  DeLay's prosecution is unique in that, unlike numerous other politicians involved in high-profile corruption cases, he was not accused of accepting bribes or favors for himself.  There were no bundles of cash hidden in DeLay's freezer.  Another interesting aspect of the case is that last year the U.S. Supreme Court ruled in Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), that corporations have certain First Amendment rights to engage in political speech.  (The Court's opinion is here.)  Citizens United involved federal restrictions on corporate spending for so-called independent political broadcasts, not state law restrictions on corporate donations to candidates. Nevertheless, DeLay's prosecution, which he alleges was politically motivated by a hostile Democratic state attorney, raises important First Amendment issues.  (WSJ)

When is office "bullying" illegal?  There is a new article in the New York Law Journal by Jason Habinsky and Christine Fitzgerald of the Hughes Hubbard & Reed law firm discussing recent legislative efforts nationwide and in New York "to protect employees from workplace bullying."  As the authors point out, currently there are limited legal protections in this area, especially if the bullying does not involve any invidious discrimination (e.g., based on race, sex, age, disability, or sexual orientation).  To address this situation (which may or may not be as serious a problem as advocates claim), several states have passed laws to treat bullying in a similar manner as discrimination claims.  An anti-bullying bill in New York was passed by the state senate but stalled in the state assembly.  What the authors do not make sufficiently clear, however, is that the real issue is whether the employer can be held liable for the bully's actions.  There are existing tort causes of action that usually allow an employee to sue the bully directly.  Indeed, the authors give some examples where an employee successfully sued a bully for assault (threatening someone with imminent bodily harm).  But employees want to be able to hold the employer liable, both because the employer usually has "deeper pockets" than the bully and because the employer has an obligation ot provide a reasonable working environment.

Federal government background checks for contract employees do not violate any constitutional right to informational privacy.  So ruled the U.S. Supreme Court this week in National Aeronautics and Space Admin. v. Nelson, No. 09-530 (Jan. 19, 2011) (slip op.).  (The Court's opinion is here.)  Specifically, the Court held that questions about an employee's use of illegal drugs are reasonably related to the government's interests "as proprietor and manager of its internal operations."  Moreover, the information collected is subject to the protections of the federal Privacy Act, which restricts the maintenance and disclosure of personal information by the government.  The Court's decision is uncontroversial and, frankly, uninteresting (it only was necessary because the U.S. Ninth Circuit Court of Appeals, a notorious "rogue" court, had ruled that portions of the government's background investigation were likely unconstitutional).  Justice Scalia concurred in the decision (there were no dissents), in an opinion joined by Justice Thomas.  Justice Scalia chastised the plaintiffs, rather amusingly, for not identifying the textual source of the alleged constitutional right they were asserting.  In his view, there is no such "right" to informational privacy.  As he wrote:  "Like many other desirable things not included in the Constitution, 'informational privacy' seems like a good idea -- wherefore the People have enacted laws at the federal level and in the states restricting the government's collection and use of information.  But it is up to the People to enact those laws, to shape them, and, when they think it appropriate, to repeal them.  A federal constitutional right to 'informational privacy' does not exist."  For Justice Scalia, that appears to be the end of the analysis.  Justice Scalia's brand of "originalism" is an important philosophy of constitutional interpretation.  But, unfortunately, it does not put enough teeth into the traditional American idea that the federal government is a government of limited, delegated powers, i.e., that the government cannot do what it has not been specifically authorized to do in the Constitution.  Justice Scalia's viewpoint runs the risk of devolving into the notion that the federal government can do whatever it wants, unless there is a specific constitutional basis for restricting its power.  This turns the American constitutional idea on its head.  See the next entry.      

Natural Law, Natural Rights, and American Constitutionalism.  The Witherspoon Institute has created "a nonpartisan, educational website" to serve "as an online resource center for students, teachers, and educated citizens to learn about the intellectual traditions of natural law and natural rights, particularly within American political and constitutional history."  The website is organized into five periods of thought:  Classical and Medieval, Early Modern, American Founding and Constitutionalism, Contemporary Theory, and Critics.  The website contains a significant collection of original documents, scholarly commentaries, and recommended readings.  It looks to be an invaluable resource for anyone interested in the philosphical foundations of the American political and legal systems.

The plaintiff in Revell was a licensed gun owner from Utah who in March 2005 was traveling from Salt Lake City, Utah, to Allentown, Pennsylvania.  He took a commercial flight that included stopovers in Minneapolis/St. Paul and Newark, New Jersey.  When he arrived at the airport in Salt Lake City, he checked his luggage through to Allentown.  Importantly, he properly stored his handgun and ammunition in separate hard cases in his suitcase and declared them in advance to the airline.

The plaintiff's problems developed when his flight into Newark was late and he missed his connection to Allentown.  As a result, he was forced to spend the night in the airport hotel and take another flight early the next morning.  Significantly, the airline had made a mistake and failed to check the plaintiff's luggage through to Allentown.  Instead, it ended up in Newark, where the plaintfif retrieved it before going to the hotel.  Unfortunately, New Jersey has strict gun laws, and the plaintiff was not licensed to have a handgun or hollow point ammunition in New Jersey.

The next morning, the plaintiff went through the same rigamarole involved in checking and declaring his gun in the Newark airport.  However, after his luggage was screened by a TSA employee, the plaintiff was detained and questioned by Port Authority police officers.  After the plaintiff explained what had happened with his flight and that he was forced to spend the night, with his luggage, in the airport hotel, he was arrested and charged with unlawful possession of the handgun and ammunition.  The plaintiff ended up spending four days in custody before being released on bond.  The criminal charges against him were dismissed by the prosecutor four months later.  The plaintiff's handgun and related belongings were not returned to him for more than two years after the incident.  The plaintiff eventually sued the Port Authority and the arresting officer under 42 U.S.C. s. 1983, which allows a person to sue state and local officials for violating his constitutional rights.

The central issue in the case was whether the plaintiff's actions were covered by FOPA, Section 926A, which provides:

Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.

As the Third Circuit explained (here is the court's opinion):  "In essence, s. 926A allows a person to transport a firearm and ammunition from one state through a second state to a third state, without regard to the second state's gun laws, provided that the traveler is licensed to carry a firearm in both the state of origin and the state of destination and that the firearm is not readily accessible during the transportation."

Both the district court and the Third Circuit on appeal held that the plaintiff was not covered by this provision because he had ready access to the handgun and ammunition during his overnight stay at the airport hotel.  Accordingly, the courts concluded that Section 926A did not cover the plaintiff's actions and, therefore, his false arrest and due process claims had to be denied because he was in violation of the New Jersey gun laws.  Interestingly, neither decision refers to any Second Amendment claims asserted by the plaintiff.

So what's a law-abiding gun owner to do in this situation?  The Third Circuit gave the following Orwellian suggestion:

Stranded gun owners like Revell have the option of going to law enforcement representatives at an airport or to airport personnel before they retrieve their luggage. The careful owner will do so and explain his situation, requesting that his firearm and ammunition be held for him overnight.  While this no doubt adds to the inconvenience imposed upon the unfortunate traveler when his transportation plans go awry, it offers a reasonable means for a responsible gun owner to maintain the protection of Section 926A and to prevent unexpected exposure to state and local gun regulations.

In a footnote, the court added:

Of course, this suggestion leaves unanswered the question of what the gun owner should do if the law enforcement officers decline to assist him. It may be hoped, however, that officers will not compound a blameless owner’s problems in that way.

Indeed.

Being "stranded" in a city while traveling is not an uncommon experience; it happens frequently and is a known problem while traveling long distances by plane, especially when multiple connections are involved.  It seems clear that the plaintiff in this case was "in transit" the entire time he was in New Jersey.  Moreover, there is no evidence that he removed the handgun and ammunition from his luggage during his overnight hotel stay.  Even if the plain language of the statute does not cover this situation, the court's interpretation is much too constrained and restrictive.

Consider that the statute plainly authorizes a person to travel by car through a state like New Jersey with a firearm locked in a case and stored in the trunk (even if the firearm would be "readily accessible" during gas and meal stops, etc.).  So could the plaintiff in Revell have retrieved his luggage at the Newark airport, rented a car, and then continued on his way to Allentown with the putatively illegal handgun and ammunition in the trunk?  It appears that, in such scenario, once the luggage was in the car, it would have been covered by Section 926A.  But what about during the interim period, between luggage claim area and the rental car area?  Under the Third Circuit's interpretation, the plaintiff would not have been covered by the statute during that period and, therefore, could have been arrested and charged with a crime.  This makes no sense.  The statute does not state that the firearm/ammunition must be placed in a particular vehicle at the start of the trip and then not be returned to the gun owner until the very end of the trip.  Moreover, the statute does not state that the firearm cannot ever, even for a moment, be potentially accessible to the owner during the trip.  The statute only says that "during such transportation" the firearm must be unloaded and not be "readily accessible."  There may be sufficient play in the statutory wording to cover situations like the one in this case -- that is, assuming a court were inclined to protect gun rights, which most are not.

What is abundantly obvious from this case is that the present gun rights regime is grossly unfair to gun owners and violates the Second Amendment.  A person in Revell's situation should never be subject to criminal prosection and should never have his civil rights violated by government authorities.  Do we need a stronger federal law to provide the needed protection?  Apparently.  Hopefully Congress will address this issue in the near future.  But what we don't need is more "helpful guidance" along the lines provided by the Third Circuit that essentially turns citizens into supplicants at the mercy of the police.

For useful commentary on the Revell case, see here; for news coverage, see here.      

Lewis v. City of Chicago

The issue before the Supreme Court in Lewis was whether a plaintiff who does not file a timely EEOC charge challenging the adoption of an employer's practice that may have a racially disparate impact (that is, have a disproportionately adverse effect on racial minorities) nevertheless may assert a disparate impact claim in a timely EEOC charge challenging the employer's later application of that practice.  The Supreme Court held (unanimously) in the affirmative, reversing the decision of the U.S. Court of Appeals for the Seventh Circuit.  See the opinion here (written by Justice Scalia).

The basic facts of Lewis are straightforward:  In July 1995, the City of Chicago administered a civil service test to over 26,000 applicants seeking to serve in the Chicago Fire Department.  After the tests were scored, the applicants were grouped into three categories:  (1) those who scored 89/100 or above (deemed "well qualified"); (2) those who scored between 65 and 88 (deemed "qualified"); and (3) those who scored 64 or below (deemed to have failed).  Beginning in May 1996 and for the next six years, the City randomly selected Fire Department candidates (who had to meet additional qualifications) from the first group, until it exhausted those candidates, and then randomly selected candidates from the second group.

Significantly, the City conceded that the original grouping procedure had a "severe disparate impact against African-Americans."  In other words, that the procedure resulted in disproportionately few black applicants in the top group, which was not justified by business necessity.  (Importantly, disparate impact claims do not require, or necessarily imply, that the employer was prejudiced or biased against a particular group, only that the employer's otherwise neutral practice had an unlawfully adverse effect on a particular group.)

In March 1997, the plaintiff (who was in the second group and not selected to be a firefighter) filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC).  Such a charge is a prerequisite to bringing a Title VII claim in court and must be filed within 300 days of the alleged discriminatory event.  The City argued that, because the plaintiff's charge was filed more than 300 days after the City announced the grouping procedure, his lawsuit was untimely and should be dismissed.  The district court ruled for the plaintiff, but on appeal the Seventh Circuit agreed with the employer and dismissed the lawsuit.  The Seventh Circuit reasoned that the only discriminatory act had been the grouping procedure, and that the subsequent hiring decisions were a mere "automatic consequence" of that act, not fresh acts of discrimination.  On further appeal, the Supreme Court rejected the Seventh Circuit's reasoning and held that the plaintiff's lawsuit was timely with respect to each time the City selected candidates from the original list starting in October 1996.

The key portion of the Supreme Court's decision is where the Court explains that Title VII prohibits the "use" of "employment practices" that have a disparate impact on protected groups.  The Court found that each time the City selected candidates from the original list, it "used" an allegedly discriminatory "employment practice" within the meaning of the statute.  Accordingly, the plaintiff's lawsuit was timely.  The Court rejected the City's argument (which had been adopted by the Seventh Circuit) that the only unlawful act was the original grouping procedure, explaining:  "Under the City's reading, if an employer adopts an unlawful practice and no timely charge is brought, it can continue using the practice indefinitely, with impunity, despite ongoing disparate impact."  On the contrary, the Court ruled that each time the City made employment decisions based on the original list was an actionable event.  However, the Court did not decide whether or not the plaintiff had proved that the selection process, in fact, imposed an unlawfully adverse impact on black candidates.

For useful commentary on the Lewis case, see here, here, and here. 

Rent-A-Center v. Jackson

The issue in Jackson was, who decides whether a mandatory arbitration agreement is enforceable, the court or the arbitrator?  The general rule is that the court decides, unless the agreement contains a "clear and unmistakable" statement that this question is for the arbitrator.  In Jackson, the plaintiff argued that this rule did not apply to the arbitration agreement he had signed when he went to work for Rent-A-Center, because the agreement itself was unconscionable (that is, so unbalanced and unfair as to be unlawful and unenforceable).  The Supreme Court, in a divided 5-4 decision, rejected the plaintiff's argument and held that the question of the enforceability of the arbitration agreement was to be decided by the arbitrator, as expressly provided in the agreement iself.  See the opinion here (written by Justice Scalia). 

The majority and dissenting opinions in Jackson discuss and debate various issues surrounding the enforceability of mandatory arbitration agreements in employment.  But the take-away point from the case is simple:  where an arbitration agreement expressly provides that the arbitrator, not the court, is to decide all issues pertaining to the enforceability of the agreement, then the terms of the agreement will be followed (i.e., the arbitrator will decide), despite any claims by the employee that the overall agreement itself is void or voidable on recognized contract law grounds.  These are arguments for the arbitrator to resolve, not the court.  The only time the court will resolve the issue is if the employee specifically challenges the express delegation of authority to the arbitrator to decide questions of enforceability.  Because the plaintiff in Jackson did not make any such specific challenge, his position was rejected and the dispute was to be arbitrated.

Note:  A series of Supreme Court decisions over the past two decades has made it almost impossible for employees to avoid arbitration when they enter into mandatory arbitration agreements as a condition of employment.  Consequently, employees, and their counsel, should consider very carefully whether a legal battle over the applicability of an arbitration clause is worth the time and money it will require to litigate (and probably lose) in court.

For useful commentary on the Jackson case, see here, here, and here.

What happens when foreign-language speaking persons go to work for businesses whose employees and customers are predominantly English-speaking?  Very frequently, these businesses adopt some form of "English-only" workplace rules that either limit or prohibit the speaking of non-English languages at work.  Are such rules legal?  Do they violate laws against employment discrimination based on race, ethnicity, or national origin?

The U.S. Equal Employment Opportunity Commission, which is responsible for administering and enforcing most federal employment discrimination laws, e.g., Title VII of the Civil Rights Act of 1964, has adopted a strict guideline for English-only rules.  See 29 C.F.R. s. 1606.7.  According to the EEOC:

(a) When applied at all times. A rule requiring employees to speak only English at all times in the workplace is a burdensome term and condition of employment. The primary language of an individual is often an essential national origin characteristic. Prohibiting employees at all times, in the workplace, from speaking their primary language or the
language they speak most comfortably, disadvantages an individual's employment opportunities on the basis of national origin. It may also create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment.  Therefore, the Commission will presume that such a rule violates title VII and will closely scrutinize it.

(b) When applied only at certain times. An employer may have a rule requiring that employees speak only in English at certain times where the employer can show that the rule is justified by business necessity.

Thus, the EEOC takes the position that blanket English-only rules are inherently discriminatory, but limited English-only rules can be justified by business necessity.  Although the EEOC guidelines do not have the force of law, they are shown considerable deference by courts applying Title VII and other statutes under the EEOC's jurisdiction.  See Albermarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975); EEOC v. Beauty Enterprises, Inc., No. 01-CV-378 (AHN), 2005 WL 276822 (D. Conn. Oct. 25, 2005).

An excellent analysis by a federal district court in New York of the legality of English-only workplace rules is found in Pacheco v. New York Presbyterian Hospital, 593 F. Supp.2d 599 (S.D.N.Y. 2009).

In Pacheco, the plaintiff worked as a "patient representative" in a major New York City hospital.  He was an American citizen, born and raised in Puerto Rico, and fully bilingual in English and Spanish.  After several patients complained to management about hospital employees speaking Spanish around them -- the patients believed that the employees were gossiping about them and making jokes about them in a language the patients couldn't understand -- the plaintiff's manager told the plaintiff that he was to speak only English when performing his duties, unless he was assisting a Spanish-speaking patient.  Shortly thereafter, the plaintiff complained to the hospital's human resources department, which took no action.  The disputed ended up in court, where the plaintiff claimed national origin discrimination, under theories of disparate treatment, disparate impact, hostile work environment, and retaliation.  The court rejected each of the plaintif's arguments and granted summary judgment to the hospital.

The court's analysis under each theory focused on the hospital's proffered justification for the English-only rule.  Specifically, the hospital argued that the English-only rule -- which was a limited rule that did not prohibit the plaintiff from speaking Spanish during breaks and when not in the vicinity of patients -- was necessary for two reasons:  first, to promote effective customer (patient) relations; second, to enable the plaintiff's manager (who did not speak Spanish) to supervise and evaluate the plaintiff properly.  The court found that these reasons were non-pretextual, legitimate, and lawful:  "Given this undisputed record, the case law supports Defendant's claim of business necessity."  The court noted that this conclusion was consistent with the EEOC Compliance Manual, which provides that English-only rules may be justified "for communication with customers, coworkers or supervisors who only speak English" 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."  See also EEOC v. Sephora USA, LLC, 419 F. Supp.2d 408 (S.D.N.Y. 2005) (upholding English-only rule that only applied when employees were on the sales floor interacting with customers, not when no customers were present or when employees were on break). 

In sum, English-only rules that apply to an employee's actual job performance, but provide exceptions for non-work time and non-work communications, probably are legal unless they are applied in an arbitrary or discriminatory manner (e.g., being enforced against speakers of certain foreign languages but not others; see here).  But blanket prohibitions on employees speaking non-English languages in the workplace probably are not legal.  Such rules are deemed inherently discriminatory by the EEOC guidelines and appear to contradict the reasoning set forth in the Pacheco and Sephora USA decisions.  Of course, each workplace situation will be analyzed on a case-by-case basis.