The Supreme Court is set to hear rearguments in a key public employee free speech case, as announced in this ABA eReport piece. That’s not so odd, when new justices come on board. The facts concern a former attorney for the Los Angeles County District Attorney’s office:

Ceballos … sued his supervisors in October 2000 in federal court, contending they retaliated against him after he exposed false statements by a deputy sheriff in a search warrant affidavit. Ceballos alleged that after he wrote a memo to his supervisors advising the dismissal of an auto theft case, his supervisors demoted him and otherwise engaged in retaliatory actions against him.

A federal district court granted summary judgment to the defendants, reasoning they were entitled to qualified immunity because the memorandum was created "as part of his job." On appeal, the San Francisco-based 9th U.S. Circuit Court of Appeals reversed. Ceballos v. Garcetti, 361 F.3d 1168 (2004). In an opinion by Judge Stephen Reinhardt, the appeals court rejected "a per se rule that the First Amendment does not protect a public employee simply because he expresses his views in a report to his supervisors or in the performance of his other job-related obligations."

In a concurring opinion, Judge Diarmuid O’Scannlain said 9th Circuit precedent dictated the result, but called for the high court to "steer this court’s drifting First Amendment jurisprudence back to its proper moorings." O’Scannlain added that "the First Amendment, in short, does not protect public employees’ routine and required speech on behalf of the government."

But court observers are pressed to pinpoint exactly which issue led to the stalemate.

"The court never really indicated any reasons why reargument was called for," says First Amendment expert Robert O’Neil, who wrote an amicus brief in support of Ceballos on behalf of the Charlottesville, Va.-based Thomas Jefferson Center for the Protection of Free Expression and the American Association of University Professors. "It is not easy to identify what exact issue may have caused the reargument, but it is probable that there was a key issue in which Justice O’Connor’s vote was critical."

"Reargument is very uncommon over the past decade," says Supreme Court practitioner Tom Goldstein of Washington, D.C. "Chief Justice [William H.] Rehnquist almost always ensured that opinions were completed by the end of each term so that reargument wasn’t required. This is the unusual situation in which a tie vote requires reargument."

But it is not rare to have reargument "when a new justice arrives in the middle of a term and there are outstanding 4-4 cases," Lederman says. "For example, the court heard reargument in four or five cases when Justice Anthony Kennedy came on board in the middle of the 1987-88 term."

Nearly all eyes will be on Alito. "Of course, any justice can change his or her mind on reargument, but the parties to the case would be wise to presume that Justice Alito will determine the outcome," Lederman says. …

The Ninth Circuit’s opinion can be found here. For additional information, take a look at the Firs Amendment Center’s page on the case here (with transcripts, oral arguments, and other supporting documents).

EDITED – I did not originally intend to publish the entirety of the article. I do recall a few things from my Copyright class in law school. I’ve edited the post by taking down the remainder of the article.


The opinion by Justice Ginsburg can be read here.

Question Presented: Whether the "15 employee" requirement in Title VII’s definition of "employer" is properly construed as an element of federal-court "subject matter" jurisdiction over a controversy, or as an essential element of the underlying Title VII claim.

Case Name: Jenifer Arbaugh v. Y & H Corporation d/b/a The Moonlight Cafe
Case Number: 04-944
Court: Supreme Court
Date Decided: February 22, 2006

Facts: Plaintiff Jenifer Arbaugh worked as a bartender and waitress from May 2000 through February 2001 at the Moonlight Café in New Orleans. She alleged that one of the owners of the restaurant subjected her to sexual harassment, and engaged in behavior that brought about Arbaugh’s constructive discharge. She filed suit in Louisiana federal district court under Title VII (claiming sexual harrassment) and various pendent state law claims based on the same facts.

Analysis after the jump.

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What’s this? A newly-improved and highly-functional government website all about … egads … compliance?!? Aw. DOL, you shouldn’t have!

I am thrilled beyond repair. The Department of Labor has upgraded its offerings and from this page you will find USERRA’s newly final regs, an updated employment guide, compliance "e-tools" such as a "poster adviser," and more. Bookmark and visit often.

Link via InHouseBlog and beSpacific.

(the title’s a shout-out to my six-year-old, who has taken to yelling around the house in the mornings, as she and her dad bustle out the door, "Let’s GO! SPEEDY QUICK CHOP CHOP!" Have no idea where she got that from.)

Case Caption: IBP, Inc. v Alvarez

Case Number: 03-1238

Arguments Heard: October 3, 2005

Opinion Filed: November 8, 2005

No, that’s not a typo, and yes, you read that correctly. It took just a hair over a month for the new Roberts court to issue an opinion in this FLSA case from the Ninth Circuit (combined with a similar case from the First). Given the admirable speed with which this opinion came down, I thought I’d do a speedy quick chop chop post, as an homage, of sorts, if you will.

In resolving a split in the circuits, the Court illuminated in a unanimous (and fast – did I mention it was issued fast?) Stevens-authored opinion whether the following periods of time were compensable as "work" under the Fair Labor Standards Act (FLSA):

  • "donning and doffing" time – time spent putting on and taking off personal protective equipment (PPE) required for work
  • time spent waiting for PPE to be issued
  • time spent walking from locker room (site of "donning") to where work was to take place that day
  • time spent waiting to "doff"

The Court ruled, respectively:

  • work
  • not work
  • work
  • work

Clear? OK.

Last week the Supreme Court denied certiorari in the case of Callison v. City of Philadelphia (128 Fed. Appx. 897 (3rd Cir. (PA) 2005)). Thus, the Third Circuit’s opinion (that employers’ sick leave policies that do not interfere with substantive rights under the Family and Medical Leave Act are permissible) stands.

Facts: Callison began missing work frequently around January 2000. He was placed on a "Sick Abuse List," and therefore required to present medical certification for all missed work and subject to progressive penalties for violations of the sick leave policy in his employee manual. He was on sick leave in January 2001 when, pursuant to the City’s policies, a sick leave investigator called him to make sure he was at home, as required by those policies. Callison wasn’t at home, though, and this earned him a warning. Subsequent missed calls during a 12-week FMLA leave apparently earned him a one-day and a three-day suspension from work, which were served on his return.

Statutory Authority: 29 U.S.C. §2615(a)(1) provides that "It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of … any right provided" under FMLA. There is no "justification" or "business necessity" defense.

Issue: DId the enforcement of the City’s policies (sick leave, calling in, stay-at-home requirements) amount to a denial of Callison’s FMLA rights?

Analysis: Callison’s claim rested on the loss of wages during the served suspensions, which he asserted translated to a denial of a right to return to his previous salary. The Court rejected this argument and held that the policies, which did not conflict with any substantive provision of FMLA, did not interfere with Callison’s FMLA rights. The Court noted that any such direct conflict would, of course, result in the policies yielding to the Act. "Internal sick leave policies or any collective bargaining agreements are only invalidated to the extent they diminish the rights created by FMLA." (Op., p. 7.)

This is absolutely the correct result. It’s almost impossible for me to believe, personally, but astonishingly enough, some people don’t like their jobs. Out of those folks, some are – brace yourself – willing to call in sick when they aren’t really sick just to have a day off! (I know!) It’s an awareness of those unfortunate facts that leads to policies such as Philadelphia’s "if you’re sick, you need to stay home" provision and the call-in/check-up provisions that enforce it. And although it’s also unfortunate that sometimes, people who are entitled to the leave can get caught up in the application of those policies. Certainly it’s prudent for large employers such as mid- to large-sized municipalities and counties to consider these issues. This case reinforces the propriety of such policies, but also serves as a reminder that it’s important to have experienced attorneys draft such policies carefully so as to avoid an inadvertent conflict with the provisions of FMLA or any other substantive employment-rights law. 

Related case law: Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711 (7th Cir. 1997) (on collective bargaining agreements and the FMLA).