The bill's anti-retaliation provisions appear to apply to all "employees".

The U.S. Supreme Court yesterday heard arguments over whether pharmaceutical sales reprsentatives were properly classified as exempt (from overtime) because they fall within the “outside sales” exemption of the nation’s wage & hour laws.

The plaintiffs said that they were not properly classified because, while the representatives do a lot of tasks, the one thing that they don’t do is actual “sales”.   Rather, they encourage doctors to write prescriptions for their patients to buy their company’s drugs.

You can read the entire transcript here and, as always, check out the excellent SCOTUSBlog for further details.     

The New York Times reported that a number of justices (including the “liberal” ones) expressed some skepticism with the employees’ arguments.   

Justice Ruth Bader Ginsburg suggested that focusing solely on whether there were sales was a mistake. She said the representatives had striking autonomy.

“They don’t clock in and out,” she said. “They work outside the workplace. After they’re trained, they have minimal supervision.”

“It includes dinners,” she said to the plaintiffs’ lawyer, Thomas C. Goldstein. “It may be conventions. Entertainment. Maybe golf. If you’re right, would the time on the golf course get time and a half?”

I’ve previously covered this topic in some prior posts here and here

The transcript makes for interesting reading. In one instance, the government’s lawyer noted something that hadn’t been discussed before– that the Department of Labor was asked for an opinion back in 2007 about the practice.  It didn’t provide one.

JUSTICE SOTOMAYOR: I saw in the briefing hundreds of opinion letters by hundreds of different industries. Outside of this 1945 letter, did anybody else, any other pharmaceutical company, ever set out for the government or seek an opinion letter that you’re aware of?

MR. STEWART: I’m aware of only one instance. I think this is not a matter of public record, but there was one request in, I believe, December of 2007, for an opinion to the effect that the detailers [pharmaceutical sales representatives] were covered by the outside salesman exemption. DOL never responded one way or the other.

A decision is expected by late June 2012.

It’s rare for a case from Connecticut to make it all the way to the United States Supreme Court. But this week, a case did just that.

I’ve previously discussed the case of Cigna v. Amara in many posts which you can read here.  The case ultimately concerns the receipt of retirement benefits and whether documents about those benefits were misleading. But the narrower issue the court is now deciding concerns the type of proof and allegations that need to be presented in a class action of this type and what remedies are available. 

The American Bar Association has prepared a summary of the case and has summed up the issue that the court is to decide:

Must participants who are members of a class action suit prove detrimental reliance on an inaccurate summary plan description in order to receive a remedy under ERISA, or is the mere proof of “likely harm” enough to justify equitable relief?

Oral argument from that case is now available online.  A decision is expected sometime this spring. 

For those involved deeply with ERISA issues, it’s definitely worth a read.  There was an interesting back-and-forth discussion about what should happen when a summary plan description conflicts with the underlying plan documents.  Indeed, as noted in the argument, CIGNA conceded that its summary plan descriptions were deficient. But the issue, according to CIGNA, is what is the proper remedy:

My point I guess in this is that, yes, Justice Kagan, the statute requires the SPD to contain certain information.  We accept the fact of the conclusions of the court below in this case that they did not do so. There are two SPDs. They failed to live up to the requirements of ERISA. There is a remedy for that.

For everyone else, keep an eye on this case. It may provide some guidance to employers about how to oversee some plan issues when the case is decided next year. 

(Note: See a prior post for my familiarity with one of the class representatives. I have no involvement whatsoever in the case.) 

There is a common misconception about the U.S. Supreme Court that all cases that it rules on are created equal.  

They’re not. Some take on more significance than others.

Case in point: Lewis v. City of Chicago, which was argued yesterday (transcript available here).  I’ve previously discussed the case in an earlier post

The SCOTUSBlog, as usual, has the details about what the case is about:

At issue is whether the 300-day statute of limitations restricting disparate impact challenges brought pursuant to Title VII of the Civil Rights Act of 1964 is triggered every time an employer makes an employment decision based on results from an impermissible employment examination or instead begins to run only when the test results are first announced. 

Now, according to the WSJ Law Blog, it’s possible that the court could expand its decision to address, what one attorney called "The flip side of Ricci [v. DeStefano" — the firefighter discrimination case against the City of New Haven decided last year.  

But a review of the transcript of yesterday’s oral argument seems to suggest that a more narrow ruling on when certain disparate impact claims can be brought is likely to be the outcome. There’s lots of discussion about the policy behind statute of limitations and the language of Title VII itself. 

What would that mean for employers? Probably not much. An expanded statute of limitations would just create some more headaches more employers and more requirements for record-keeping. But I have a hard time thinking that the Court would be amenable to a open-ended time limitation.  A more restricted reading of the statute wouldn’t change much for employers either.

So, while the the U.S. Supreme Court considers the case (a decision is expected before June), let’s wait and see whether this case will truly be of significance for employers. Or whether it just becomes the topic for academics to discuss in law journals.

There’s lots of coverage this morning on the Ricci v. DeStefano (otherwise known as the New Haven firefighter reverse discrimination claim) oral argument at the Supreme Court yesterday — among the most significant discrimination cases arising in Connecticut in years.  Here’s a wrap-up:

  • Ellen Simon, of the Employee Rights Post, rightly points out the dilemma facing New Haven in this situation. She suggests that Justice Kennedy may be the swing vote; the question is whether he tries to stake out a middle ground by sending the case back down to the lower courts for more analysis without declaring either side a winner or loser right now.
  • The Hartford Courant provides some comments from the parties about the oral argument. 
  • shares the view that all eyes are going to be on Justice Kennedy to see how he shapes the analysis.  According to the article, for what it’s worth, the reporter observed: "Kennedy, the object of all the attention, did not explicitly tip his hand, but overall seemed sympathetic to the white firefighters who claim they were discriminated against on the basis of race, in violation of Title VII of the Civil Rights Act, when the city did not give them the promotions."
  • Carole Bass, of the New Haven Independent, provides some additional on-scene coverage of the argument and framed the issue that the court seemed to focus on as "Was it a ‘race-based’ decision? Or simply ‘race-conscious’?"
  • For a more scholarly discussion of the case, the Workplace Prof blog does an excellent job at summarizing the many different sides to the case.  As he states, the case is not an easy call, either to analyze or predict: "One of the reasons that this case is so challenging and so divisive is that this case seems to be all about the framing of the issue. It is very difficult to separate that framing from the factual question of the parties’ subjective intent or the credibility question of whether to believe their assertions. The way that the facts and law get merged together make for a doctrinal mess. It seems like people talk past each other constantly."

If only all trial and deposition transcripts happened this quickly….

The Supreme Court held oral argument in the Ricci v. DeStefano case earlier today. The transcript is now available here

The Workplace Prof has the snap judgment which seems pretty on point from my initial scans:

I’ve skimmed it enough to see that there’s a lot there to digest more fully. My initial impression is that the court seemed to divide along familiar lines with Ginsburg, Souter, Stevens, and Breyer questioning the petitioners fairly heavily, and Roberts, Scalia, and Alito questioning the respondents closely. Kennedy questioned both sides about equally, and Thomas was characteristically quiet. 

Most of the argument seemed to focus on whether the decision not to certify the test was race discrimination or simply racial consciousness and what kinds of evidence an employer would need to have before it could act in this manner.

There’s lots to be fascinated by in the transcript, but one exchange with Chief Justice Roberts stood up on my first glance. He asks the U.S. Government whether the promotion of diversity can be a compelling state interest in employment decisions.  While he asks for a yes or no answer, the following exchange happened:

MR. KNEEDLER: We think — we think it probably is a compelling state interest, but it is not one that — that can be advanced by race — by racial classifications. And that — and that is our basic submission here. …
CHIEF JUSTICE ROBERTS: Can it be advanced by taking actions to avoid what is perceived as a disparate impact?

But whether the public employer can take action on that seems to be where the court is struggling with in the exchange that follows:

CHIEF JUSTICE ROBERTS: In other words, the disparate impact is regarded as something you can intentionally respond to by drawing racial distinctions solely because you would like a more diverse workforce?
MR. KNEEDLER: No, not drawing racial distinctions. That’s our — this — the employer’s response here did not draw racial distinctions. It did not say so many black firefighters would be promoted —
MR. KNEEDLER: — and so many white —
CHIEF JUSTICE ROBERTS: It didn’t care — it had to draw racial distinctions because it looked at the test and said, we think there’s a problem because of the racial makeup of who’s going to get the promotions.

But whatever the result, the decision isn’t an easy one to resolve since it puts two competing interests "at war" with each other, as Justice Scalia stated at oral argument.  

The court will, however, resolve this one way or another.  A decision is expected before June.


As with other U.S. Supreme Court cases this term, there’s been more virtual ink spilled this week over two oral arguments scheduled for the U.S. Supreme Court this week that will examine some of the parameters of  when it is illegal for an employer to retaliate against an employee for complaining about discrimination.  For most employers, however, these cases may not have nearly the practical impact that some commentators seem to suggest.

I’ll leave it to others, such as Ross’s Employment Law Blog to explain the cases. 

  • In Gómez-Pérez v. Potter, to be argued today, the question for the court is whether for federal employees, the ADEA prohibits retaliation for filing an EEO complaint.  ADEA already prohibits retaliation by private employers.  Even if the U.S. Supreme Court decides that the statute does not explicitly cover retaliation claims by federal employees, it is hard to imagine that Congress would not take up this issue immediately with bi-partisan support.
  • In CBOCS West, Inc. v. Humphries , to be argued tomorrow, February 20th, the question for the court is whether 42 U.S.C. Sec. 1981 (which prohibits race discrimination in the "making, performance, modification, and termination of contracts…") provides a cause of action for retaliation as well.   However, as readers are no doubt aware, Title VII already prohibits retaliation on the basis of race, so there is and has always been some overlap between the two claims. 

Emily Bazelon, over at Slate, suggests that this is a "Big Discrimination Case."  Unless the decision’s rationale is broad, that seems to be an overstatement at this point.  Most discrimination and retaliation claims, as a practical matter, are brought under Title VII, not Section 1981.  Indeed, the only reason the Humphries case is not a Title VII claim is that the Plaintiff missed the statute of limitations.  Section 1981 mostly gets used when an employee bringing a retaliation or discrimination claim misses that deadline.  Thus, even if the court were to rule against the employee in this case, it will have no impact on the vast majority of race retaliation cases out there that are being filed under Title VII.

Jon Hyman, at Ohio Employer’s Law Blog, has some additional thoughts on the Humphries case as does Workplace Prof.  A decision on these cases is expected by June 2008.

For employers in Connecticut, I would ignore the hype about these cases.  Retaliation against employees for filing race and age discrimination claims would still violate state law, under Conn. Gen. Stat. 46a-60(a)(4).  Regardless of how the Supreme Court decides, state law will continue to apply.  If and when an employee claims discrimination at the workplace, take steps to avoid a retaliation lawsuit, and don’t worry about whether federal or state law will ultimately apply. 

If your labor & employment attorney isn’t returning phone calls over the next few days, odds are he or she is at the first annual ABA Labor  & Employment conference in Philadelphia.  I arrived this afternoon and discovered that over 1250 of my closest colleagues are here as well.

I had the opportunity to chat at the welcome reception tonight with NLRB Board Member Peter Schaumber.  Knowing him only by Board decisions, I found him a pleasure to talk with.  Regardless of political affiliation, you have to appreciate that he’s charming, affable and has a breadth of knowledge on a variety of subjects. Too often, lawyers tend to depersonalize judges — forgetting that behind each decision is a real person making difficult decisions. 

One item he mentioned was that the NLRB was actually holding a rare oral argument on one of its cases on Friday in Philadelphia. He was looking forward to it.  Thus, if you’re at the conference, or in Philadelphia, it’s worth a visit. The WorkPlace Prof prepared a thumbnail sketch of the case a short time ago. 
For practitioners and those interested in the subject, the conference has posted their program materials — free of charge — on the ABA website.  It’s easily over 1000 pages worth of materials.  It’s a treasure trove of information about cases, strategy, law and the like.  It’s helpful not only to employer and employee lawyers, but to in-house counsel as well.

If you’re at the conference, drop me an e-mail at and perhaps we’ll have an opportunity to meet in person.