When the Congressional Accountability Act of 1995 was passed, applying for the first time eleven employment laws to Congress and its staff, the hope among some (or at least me) was that Congress might be more sensitive to the impact of those laws, particularly to how they could be manipulated. If it has, its been without the benefit of much ligitation. However, what may be the first case actually brought against a member of Congress (or technically his office, see discussion below) is now wending its way through the courts. Rita Bastien's six year career as a Senate aide to Senator Ben Nighthorse Campbell ended when she was terminated in 2000 at age 61. Rather than going quietly into the Colorado night she sued alleging age discrimination act.
Senator Campbell was not willing to take the suit quietly either, urging that the case be dismissed under the so-called "speech and debate" clause, which provides that "for any Speech or Debate in either House, [members of Congress] shall not be questioned in any other Place." U.S. Constitution, Article I §6 ¶1. The CAA retained the protection of that provision. Given Senator Campbell's view, almost every act of a Congressional staffer would be covered by the "speech and debate" clause and thus excluded from coverage. The district court agreed with the expansive view, dismissing Bastien's case, which would seem to effectively gut the CAA insofar as it is applied to members of Congress.
However, in a decision that must discuss every case ever decided under the "speech and debate" clause, the Circuit Court of Appeals took a more narrow reading of what constitutes legislative activity and allowed the suit to continue. Bastien v. Office of Senator Ben Nighthorse Campbell (10th Cir. 12/10/04). The Court did take pains to say that it was not addressing whether the "speech and debate" clause might at least require some evidence to be excluded, even if it did not bar the suit.
Since there are no citations to any other case under the CAA against a Congressional member, this appears to be a case of first impression. And it does not appear that there have been any administrative decisions either, at least there are none in the list on the website of the Office of Compliance, the agency set up to administer the Act. And Congress didn't exactly put themselves at risk in the legislation, since the cause of action can only be brought against the "Office" of the Senator or Representative, not them personally. And any award is paid out of the budget of the Office of Compliance, not by the member of Congress or even his or her own budget. So maybe it is not too surprising, that to date there has been very little impact on the way members of Congress view employment legislation and the ensuing litigation. Of course, if the Supreme Court agrees with the 10th Circuit and allows Ms. Bastien's suit to continue, others may well follow, and a decade later, Congress may begin to truly "feel the pain" that employers have felt for sometime now.
Our Clients $200,000 - Us, $2.5 Million
At least that is the request by the lawyers who represented a group of 80 Wal-Mart employees in a wage and hour class that went to trial in Oregon. Although they did recover, the net amount owed was $211,000 for the 83 workers for underpaid overtime, penalties and interest. According to the story at Worldlink, that's a modest $2,500 per worker. The claim for attorneys fees now being submitted to the Court is a little more immodest, $2.57 million dollars.
There is no question that a substantial amount of lawyer time was expended - the case featured two trials, and according to plaintiffs' counsel, 60 motions by Wal-Mart and 200 depositions. It poses a classic question - should the lawyers be rewarded based on effort, or on results? While plaintiffs' lawyers in a contingency fee mode operate on the latter basis, under a fee shifting statute like the FLSA, they often opt for the former. My guess --- the attorneys fees will exceed the amount awarded to the plaintiffs, but won't be as much as requested by plaintiffs' counsel.
There is no question that a substantial amount of lawyer time was expended - the case featured two trials, and according to plaintiffs' counsel, 60 motions by Wal-Mart and 200 depositions. It poses a classic question - should the lawyers be rewarded based on effort, or on results? While plaintiffs' lawyers in a contingency fee mode operate on the latter basis, under a fee shifting statute like the FLSA, they often opt for the former. My guess --- the attorneys fees will exceed the amount awarded to the plaintiffs, but won't be as much as requested by plaintiffs' counsel.
Lessons For Dealing With Jerkiness
Roger Zaslow, has some helpful thoughts in his WSJ article, Why the Biggest Jerks Get Ahead on the Job. The most discouraging comment from the experts -- "admit you are powerless over the jerks in your life." Undoubtedly true -- unless you are powerful enough to distance yourself from them.
Two Time Losers - Not in the Traditional Sense
Probably what two Oregon Agriculture department officials are feeling like as the 2nd discrimination suit in which they were the key actors went against the state, this time a loss of $425,000. According to the story at the KATU website, State employees could be punished over discrimination suit, this was not the first time that the conduct of John Szczepanski, assistant director, and Jeff Hyatt, export program manager had been at the center of a loss. In 2003 the verdict was more than a million dollars. An Ag department spokesman said the terminations that led to both suits were the cause of budget cuts, but they also say that they are reviewing whether there is sufficient basis to discipline the two employees. Hardly a vote of confidence.
The Complete Primer on §1981 Statute of Limitations Law
Early this year the Supreme Court held that under §1981, the federal four year statute of limitations applied rather than the applicable state statute of limitations. Jones v. R.R. Donnelley & Sons Co., 24 S. Ct. 1836 (2004). Or that at least was the general take on the Donnelley case. However, as Cross v. Home Depot (10th Cir. 12/8/04) [pdf] shows, it is a little more precise than that.
Cross's §1981 claim was his failure to be promoted from Assistant Store Manager to Store Manager. Although a four year statute would be applicable to any §1981 claim that would not have been actionable before Congressional amendments to §1981 in 1991, if the claim would have been actionable before the amendment, then the state's residual statute of limitations (here 2 years) would be applicable.
As a result Home Depot argued that the promotion from assistant store manager to store manager was so substantial that it rose to the "level of an opportunity for a new and distinct relation between the employee and the employer" which would have been actionable before the amendments, and thus governed by the 2 year statute of limitations. The trial court agreed and granted summary judgment to Home Depot when Cross failed to point out any evidence to support his argument that "8 store managers positions were filled in Colorado" during the 2 year time period considered by the trial court.
Unfortunately, on appeal, the 10th Circuit reversed the lower court's ruling that a promotion from Assistant to Store Manager would have been sufficient to create a new relationship which means that the four year statute was applicable. So the Court reversed and remanded. However, in a final twist, even though it conceded that Cross's failure to point out the evidence of promotions in the 2 years period that were considered was a mistake, it refused to reverse the summary judgment. On remand, Cross is limited to showing he was denied a promotion only in the first two years covered by the expanded four year period.
Cross's §1981 claim was his failure to be promoted from Assistant Store Manager to Store Manager. Although a four year statute would be applicable to any §1981 claim that would not have been actionable before Congressional amendments to §1981 in 1991, if the claim would have been actionable before the amendment, then the state's residual statute of limitations (here 2 years) would be applicable.
As a result Home Depot argued that the promotion from assistant store manager to store manager was so substantial that it rose to the "level of an opportunity for a new and distinct relation between the employee and the employer" which would have been actionable before the amendments, and thus governed by the 2 year statute of limitations. The trial court agreed and granted summary judgment to Home Depot when Cross failed to point out any evidence to support his argument that "8 store managers positions were filled in Colorado" during the 2 year time period considered by the trial court.
Unfortunately, on appeal, the 10th Circuit reversed the lower court's ruling that a promotion from Assistant to Store Manager would have been sufficient to create a new relationship which means that the four year statute was applicable. So the Court reversed and remanded. However, in a final twist, even though it conceded that Cross's failure to point out the evidence of promotions in the 2 years period that were considered was a mistake, it refused to reverse the summary judgment. On remand, Cross is limited to showing he was denied a promotion only in the first two years covered by the expanded four year period.
Secretary of Labor Chao To Stay For 2nd Term
Today's announcement by the White House that Secretary of Labor Elaine Chao would be returning as Secretary of Labor put to rest the rumors that she might move to Transportation if the current Secretary, Norman Mineta chose not to return. According to the announcement both Chao and Mineta will continue in their current roles for the 2nd term. Bush Asks Chao, Mineta, Jackson And Norton To Stay. Secretary Chao was at the center of one of the fiercest administrative fights in President Bush's first term over the revised white collar regulations.
Another Black Eye For Air Force - Top Lawyer May Face Sexual Charges
Although not technically sexual harassment since the conduct was consensual, the Air Force's top lawyer is said to have engaged in improper relationships with more than a dozen women over the last decade. According to the story, Air Force's Top Lawyer May Face Charges in the Washington Post, Maj. Gen. Thomas J. Fiscus may have run afoul of the strict rules of the military against fraternization. Another concern -- service members who were charged with adultery, harassment or similar issues since Fiscus became the Air Force's top lawyer in February 2002 may seek to have their cases reopened.
Coming on the heels of the long running scandal of how sexual assaults were handled at the Air Force Academy, see Air Force Officials Blamed for Lapses in Sexual Assault Reporting, this is clearly not the Air Force's shining hour.
Coming on the heels of the long running scandal of how sexual assaults were handled at the Air Force Academy, see Air Force Officials Blamed for Lapses in Sexual Assault Reporting, this is clearly not the Air Force's shining hour.
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