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Labor & Employment Law

Fourth Annual Executive Branch Review Conference

Law & Innovation Tuesday, May 17, 09:00 AMThe Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20036

The Fourth Annual Executive Branch Review Conference will be held on Tuesday, May 17, 2016, at The Mayflower Hotel in Washington, DC. The theme of the conference is "Law & Innovation". There is no cost to attend the conference. [Register now!]

Friedrichs v. California Teachers Association - Post-Decision SCOTUScast

SCOTUScast 4-20-16 featuring Richard A. Epstein
Richard A. Epstein April 20, 2016

On March 29, 2016, the Supreme Court decided Friedrichs v. California Teachers Association. A group of public school employees sued the California Teachers Association and various other entities, arguing that the agency shop arrangement itself--as well as the opt-out requirement--violated the First Amendment. The district court denied their claim and the U.S. Court of Appeals for the Ninth Circuit affirmed based on existing precedent and the 1997 Supreme Court decision Abood v. Detroit Board of Education. The two questions before the Supreme Court were (1) whether the Abood precedent should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

In a one-sentence per curiam opinion, the judgment of the Ninth Circuit was affirmed by an equally divided Supreme Court, a 4-4 split.

To discuss the case, we have Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, Laurence A. Tisch Professor of Law, New York University School of Law and Professor Emeritus and a senior lecturer at the University of Chicago Law School.
 

CRST Van Expedited, Inc. v. EEOC - Post-Argument SCOTUScast

SCOTUScast 4-5-16 featuring Kenton J. Skarin
Kenton J. Skarin April 05, 2016

On February 22, 2016, the Supreme Court heard oral argument in CRST Van Expedited, Inc. v. EEOC. In 2007, the Equal Employment Opportunity Commission (EEOC) filed a sexual harassment suit against CRST Van Expedited (CRST) on behalf of approximately 270 female employees. When a number failed to appear for depositions, however, the district court barred the EEOC from pursuing their claims as a discovery sanction. The remaining claims were dismissed on various other grounds, including 67 claims that the district court dismissed for failure of the EEOC to separately investigate, find reasonable cause for, or attempt to conciliate them.  In addition, the court awarded CRST some $4.46 million in attorney’s fees and expenses, on the basis that the claims were frivolous, unreasonable, or without foundation. On appeal the U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal of all but two claims, vacated the award of fees and costs, and remanded the case. On remand, one of the remaining claims was withdrawn and the other settled. CRST renewed its petition for fees, costs, and expenses, and the district court again awarded it approximately $4.6 million.

On a second appeal the Eighth Circuit again reversed the award, finding that claims which had been dismissed for the EEOC’s failure to meet presuit obligations could not serve as grounds for an award, and remanding for an individualized determination as to whether other claims were frivolous, unreasonable, or without foundation. 

The Supreme Court granted CRST’s subsequent petition for certiorari on the following question: whether a dismissal of a Title VII case, based on the EEOC’s total failure to satisfy its pre-suit investigation, reasonable cause, and conciliation obligations, can form the basis of an attorney’s fee award to the defendant under 42 U.S.C. § 2000e-5(k).

To discuss the case, we have Kenton J. Skarin, who is an Associate at Jones Day.

Kingdomware Technologies v. United States - Post-Argument SCOTUScast

SCOTUScast 3-30-16 featuring Michael Toth
Michael Toth March 31, 2016

On February 22, 2016, the Supreme Court heard oral argument in Kingdomware Technologies v. United States. Kingdomware Technologies is a certified, service-disabled veteran owned small business, or SDVOSB--a special type of veteran-owned small business, or VOSB. In 2012, Kingdomware filed a bid protest with the Government Accountability Office (GAO) when the Department of Veterans Affairs (VA) awarded a contract to a Federal Supply Schedule (FSS) contractor who was not a VOSB.  Kingdomware argued that the award violated 38 U.S.C. § 8127(d)’s “Rule of Two.” That provision directs that VA contracting officers, except under certain circumstances, “shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States.” 

Although the GAO agreed with Kingdomware and recommended a re-bid, the VA declined to follow the GAO recommendation and Kingdomware sued the VA in the Court of Federal Claims. That Court ruled in favor of the VA and Kingdomware appealed to the U.S. Court of Appeals for the Federal Circuit.  A divided panel of the Federal Circuit affirmed the judgment of the Court of Claims, concluding that Kingdomware’s interpretation of “shall award” failed to account for qualifying provisions elsewhere in the statute. 

The question before the Supreme Court is whether the Federal Circuit erred by adopting a construction of § 8127(d)'s mandatory set-aside for VOSBs that arguably rendered the “Rule of Two” discretionary at the option of the VA.

To discuss the case, we have Michael Toth, who is a lawyer in Washington, D.C.

Supreme Court Splits 4-4 on Major Union Case -- Friedrichs v. California Teachers Association - Podcast

Labor & Employment Law Practice Group Podcast
Richard A. Epstein March 29, 2016

On Tuesday, March 29, the U.S. Supreme Court announced a 4-4 decision in Friedrichs v. California Teachers Association. The two questions presented were: (1) Whether the Abood precedent should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech. What is the effect of the 4-4 decision? Are there other cases percolating in the circuit courts that might present the same or similar questions to the Court in the near future?

Featuring:

  • Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law, New York University School of Law