By Pamela Wolf, J.D.
The press for comprehensive immigration reform, including a path to citizenship, is in full swing while Congress is in recess this August. Unions and other groups are taking the fight to the home states of congressional representatives. House Democrats have also made a move calculated to get things moving in the Republican-controlled House.
Unions and partner organizations. Communications Workers of America activists and its partners across the country will be flooding town halls, meeting with their members of Congress, and holding rallies in support of a comprehensive immigration reform bill that includes a path to citizenship for some 11 million undocumented immigrants, according to a CWA release.
This week in Los Angeles, the AFL-CIO’s Maria Elena Durazo joined Mayor Eric Garcetti and more than 100 community organizations and leaders from the faith, labor, LGBT, student, civic engagement, business, and immigrant rights sectors to demand a vote on immigration reform.
In Iowa, more than 50 members of Iowa Citizens for Community Improvement packed a meeting with Representative Tom Latham (R-IA) to share their stories and demand action on the pathway to citizenship.
In Texas, almost 50 immigration reform activists from TexasRITA and other groups gathered at Representative Blake Farenthold’s district office to deliver 10,000 petitions asking him to support immigration reform and a path to citizenship.
Facebook CEO Mark Zuckerberg’s immigration reform group, FWD.us, is also bombarding TV airwaves with a six-figure ad-buy aimed at on-the-fence members of Congress over the recess.
Democratic coalition issues ultimatum. The New Democrat Coalition, a group of 53 moderate pro-growth House Members, sent a letter issuing an ultimatum to House Speaker John Boehner on August 2, telling him that if a comprehensive immigration reform bill with a pathway to citizenship is not introduced by September 30, the leading group of moderates in the House of Representatives will advance on a fix to the nation’s broken immigration system. The letter is signed by 39 coalition members.
After releasing principles for a comprehensive immigration reform package in April, the coalition has maintained its effort to build support for a measure that will create American jobs, lower the deficit, and provide an earned pathway to citizenship for millions of undocumented Americans with a series of summits with leaders in the technology industry and key figures in the immigration reform debate, including Representative Luis Gutierrez (Ill.) from the bipartisan Gang of Seven in the House and Senator Michael Bennet (Colo.) of the Senate Gang of Eight.
In the face of no action on a bipartisan bill, the New Dems are pushing for action from House Republican leadership. “We are frustrated that there was not a bipartisan immigration reform bill introduced prior to the August recess,” they wrote, citing broad bipartisan support for comprehensive immigration reform legislation.
“As New Democrats, we want to convey to Speaker Boehner that it is critical he fulfill his commitment to passing immigration reform legislation that will fix our broken immigration system once and for all,” said New Dem Immigration Task Force Co-Chair Representative Jared Polis. “We agree with the American public that immigration reform must include a pathway to citizenship. We are confident that there is the support for such legislation in the House of Representatives and have let Speaker Boehner know we stand ready to work with his members in a bipartisan fashion to pass comprehensive immigration reform this year. Let’s stop kicking the can down the road.”
A wide gap to bridge. Although the Senate has passed a bipartisan comprehensive immigration reform bill (S. 744), the House has dragged its feet, taking a piece-meal approach. The Migration Policy Institute has issued a side-by-side comparison of the Senate bill and the individual bills introduced in the House. The differences in the way the two Chambers have treated the various components of immigration reform is considerable, with the House having covered much less ground; huge gaps remain.
It will be interesting to see if the pressure in their home states will motivate House Members to return after the August recess more willing to tackle immigration reform on a more comprehensive basis.
Now that the NLRB is back to its full complement of five members after much give and take between the Senate and the White House, here’s a brief rundown on each appointee and the span of their individual terms. On August 1, President Obama also nominated former Member Richard Griffin to serves as General Counsel, as detailed below.
Mark Gaston Pearce, Chairman: Democrat. A founding partner of the Buffalo, New York law firm of Creighton, Pearce, Johnsen & Giroux. In 2008, Pearce was appointed by the New York Governor to serve as a Board Member on the New York State Industrial Board of Appeals. From 1979 to 1994, he was an attorney and District Trial Specialist for the NLRB in Buffalo, New York. Pearce received his J.D. from State University of New York, and his B.A. from Cornell University. Pearce initially received a recess appointment set to expire at the end of the Second Session of 111th Congress. On August 27, 2011, President Obama designated Pearce Chairman. Reappointed for a term ending on August 27, 2018.
Nancy Jean Schiffer, Member: Democrat. A former associate general counsel to the AFL-CIO from 2000 to 2012. Prior to working for the AFL-CIO, she was deputy general counsel to the UAW from 1998 to 2000. She had previously worked as associate general counsel for the UAW from 1982 to 1998. Earlier in her career, Schiffer was a staff attorney in the Detroit Regional Office of the National Labor Relations Board and worked as an attorney in private practice. Ms. Schiffer received her B.A. from Michigan State University and her J.D. from the University of Michigan Law School. Appointed for a term of five years expiring December 16, 2014, replacing Craig Becker.
Kent Hirozawa, Member: Democrat. Formerly chief counsel to Chairman Pearce. Before joining the NLRB staff in 2010, Hirozawa was a partner in the New York law firm Gladstein, Reif and Meginniss LLP. Hirozawa previously served as a field attorney for the NLRB from 1984 to 1986. He was a pro se law clerk for the U.S. Court of Appeals for the Second Circuit from 1982 to 1984. He received a B.A. from Yale University and a J.D. from New York University School of Law. Appointed for a term of five years expiring August 27, 2016, replacing Wilma B. Liebman.
Harry I. Johnson, III, Member: Republican. Formerly a partner with Arent Fox LLP, a position he has held since 2010. Previously, Johnson worked at Jones Day as partner from 2006 to 2010 and as an associate from 1994 to 2005. In 2011, he was recognized by The Daily Journal as one of the “Top Labor & Employment Attorneys in California.” Johnson received a B.A. from Johns Hopkins University, an M.A.L.D. from Tufts University’s Fletcher School of Law and Diplomacy, and a J.D. from Harvard Law School. Appointed for a term of five years expiring August 27, 2015, replacing Terence Francis Flynn.
Philip A. Miscimarra, Member: Republican. Formerly a partner in the Labor and Employment Group of Morgan Lewis & Bockius LLP, a position he held since 2005. Since 1997, Miscimarra has been a senior fellow at the University of Pennsylvania’s Wharton Business School. Miscimarra worked at Seyfarth Shaw LLP as partner from 1990 to 2005 and associate from 1987 to 1989. Miscimarra received a B.A. from Duquesne University, an M.B.A. from the University of Pennsylvania’s Wharton School of Business, and a J.D. from the University of Pennsylvania Law School. Appointed for a term of five years expiring December 16, 2017, replacing Brian Hayes.
For General Counsel, the nomination of Richard F. Griffin, Jr. has been sent to the Senate. If confirmed, Griffin would serve for a four-year term, replacing embattled Acting General Counsel Lafe Solomon. Griffin saw his nomination to the NLRB withdrawn by the President as part of an eleventh-hour deal with Senate Republicans in the face of their staunch opposition. Griffin, who earned a J.D. from Northeastern University School of Law, was previously general counsel of the International Union of Operating Engineers (IUOE).
A recent lawsuit filed in a federal court in California may cast a shadow over Griffin’s confirmation. The suit charges that Griffin helped to cover up embezzlement at his former union by terminating employees who attempted to expose the alleged embezzlement plot. The complaint, filed by members and officers of Local 501 of the IUOE, alleged numerous violations of the Racketeer Influenced and Corrupt Organizations Act, and names, among others, the union and Griffin, IUOE’s former general counsel, as defendants.
This is not the first time that Griffin’s involvement with the IUOE has drawn scrutiny from lawmakers. Senator Orrin Hatch (R-Utah), a member of the Senate Committee on Health, Education, Labor, and Pensions, sent a letter in July 2012 to Griffin asking about ties to members of union locals convicted of various crimes during his time at the IUOE. In that letter, Hatch asked Griffin for a list of all issues he had worked on while general counsel pertaining to “fraud, embezzlement, or other financial misconduct” by officials at IUOE or its locals.”
By Lorene D. Park, J.D.
The Computer Fraud and Abuse Act (CFAA) prohibits a person from knowingly and with intent to defraud accessing a protected computer without authorization, or exceeding authorized access in order to further the intended fraud or obtain anything of value. In the employment context, the typical CFAA claim involves an employer’s allegation that employees downloaded confidential information to personal devices or email accounts before leaving to join a competitor; in many cases breaching confidentiality agreements. The problem with such claims is that the CFAA does not define “without authorization.” Further, it defines “exceeds authorized access” but the parameters of “authorized access” are elusive. Courts disagree on how to interpret these terms but a clear majority is emerging that makes employer CFAA claims an uphill battle. Moreover, legislation was introduced in June that may foreclose most employment-related CFAA claims.
A federal district court in Massachusetts recently explained the conflicting interpretations of the term “exceeds authorized access” (Advanced Micro Devices, Inc v Feldstein, June 10, 2013). The narrow approach reflects a technological model; the scope of authorized access is defined by the barriers preventing it. If an employee was authorized to access a server, any data accessed was with authorization no matter how it was used. By contrast, the broad interpretation defines access in terms of agency and use. If an employee breaches a duty or contract, or acquires an interest adverse to the employer, authorization to access information on the employer’s computer ends. Finding that the broad interpretation pulls trivial contract violations into the realm of criminal penalties, the court adopted the narrow interpretation.
Majority view emerging
Adopting a similar view, a federal district court in Minnesota dismissed an oil recovery company’s CFAA claim against a former employee who downloaded its customer information, presumably to be shared with her inlaws’ newly formed company (Lube-Tech Liquid Recycling, Inc v Lee’s Oil Service, LLC, June 3, 2013). The employee had never accessed information that was off-limits, and, in fact, one of her main duties was to implement a software program to catalogue the customer list for the employer.
A federal district court in Pennsylvania also adopted the narrow approach to the definition of “exceeds authorized access,” dismissing CFAA claims against employees who started working for a competitor before resigning, during which time they downloaded thousands of documents to external devices (Dresser-Rand Co v Jones, July 23, 2013, Brody, A). Because the employees were authorized to access their work laptops and download files, they could not be liable even if they subsequently misused the documents to compete with the employer.
Most recent cases involving similar CFAA claims against employees and former employees meet the same fate and it appears that the narrow interpretation of the term “authorized access” may be the majority approach. Now for the kicker — this debate may become an academic exercise if Representative Zoe Lofgren (D-CA) has her way.
CFAA reform: Aaron’s Law
On June 20, 2013, Lofgren, along with Reps. James Sensenbrenner (R-Wis), Mike Doyle (D-Pa), Yvette Clarke (D-NY), and Jared Polis (D-Colo), introduced a CFAA reform bill, H.R. 2454, which essentially adopted the narrow interpretation of the terms “without authorization” and “exceeds authorized access” set forth by the Fourth Circuit in WEC Carolina Energy Solutions, LLC v Miller (July 26, 2012, Floyd, H). The appeals court held that employees who violated a use policy to download an employer’s confidential information could not be liable under the CFAA; such liability was limited to individuals who access computers without authorization or obtain or alter information beyond the bounds of their authorized access.
Under Aaron’s Law (named in honor of the late Internet innovator and activist Aaron Swartz), the term “exceeds authorized access” would be stricken and replaced by the term “access without authorization,” which would be defined as follows: “(A) to obtain information on a protected computer; (B) that the accesser lacks authorization to obtain; and (C) by knowingly circumventing one or more technological or physical measures that are designed to exclude or prevent unauthorized individuals from obtaining that information.”
As Lofgren’s summary of the measure explains, the “proposed changes make clear that the CFAA does not outlaw mere violations of terms of service, website notices, contracts, or employment agreements. The proposed definition of ‘access without authorization’ includes bypassing technological or physical measures via deception (as in the case with phishing or social engineering), and scenarios in which an authorized individual provides a means to circumvent to an unauthorized individual (i.e., sharing login credentials). Examples of technological or physical measures include password requirements, cryptography, or locked office doors.”
Companion legislation was introduced in the Senate by Ron Wyden (D-Ore), who explained that the reform is meant to clarify “a vague and outdated statute initially intended to protect government computers from malicious hacks but is now interpreted so broadly as to criminalize harmless and commonplace infractions.”
While the emerging majority view and the pending legislation may provide clarity for employers pursuing CFAA claims, this is cold comfort. Employers will largely be relegated to trade secret law, interference torts, and contract law when seeking redress for the harm caused by employees who take confidential information and use it to help a competitor.
By Lorene D. Park, J.D.
Much has been made in the media of the American Medical Association recently adopting a policy recognizing obesity as a disease. Indeed, commentators have proclaimed that the policy would spur a “spate” of new suits, starting with Whittaker v America’s Car-Mart, Inc, a complaint filed July 19, 2013 (E.D. Mo.). Forget for a minute that the ADA has an administrative exhaustion requirement (meaning the plaintiff asserted his claim to an agency before the AMA’s announcement) and that the complaint does not refer to the AMA. Let’s assume he filed suit because his position was backed by the AMA. What does that change? Not much.
It is great that obesity discrimination is getting more press, and perhaps such plaintiffs will find support in the AMA’s labeling obesity as a “disease.” However, obesity discrimination suits have been around for years and the issues with which the courts have struggled in post-ADAAA cases are unlikely to change after the AMA’s announcement. Why? Because, with any impairment (including obesity), an ADA (or similar state law) plaintiff must show that it substantially limited one or more major life activities (or was regarded as such). And the assessment of whether a person is disabled must be done on an individualized basis, not based on a general conclusion by a national association.
Post-ADAAA cases already changing.
Significantly, the judiciary’s view on obesity discrimination has already been changing after the ADAAA’s enactment. Exploring the topic last year in a July 10, 2012 blog, I noted that, historically, obese employees had trouble asserting they were disabled unless they proved the obesity was caused by a physiological disorder. However, the ADAAA significantly broadened the definition of “disability,” and there have been results.
In one case, a plaintiff had a job offer rescinded due to the “health and safety risks associated with extreme obesity.” Looking to the ADAAA and EEOC interpretations, the Montana Supreme Court concluded that, under a similar state law, obesity that is not the symptom of a physiological disorder or condition may constitute a “physical or mental impairment” if the individual’s weight is outside “normal range” and affects “one or more body systems” as defined by 29 C.F.R. Sec. 1630.2(h)(1) (BNSF Railway Co v Feit, July 6, 2012). In an Illinois case, a federal court denied an employer’s motion to dismiss an ADA claim based on the allegation that the employer failed to accommodate an employee’s obesity and osteoarthritis by providing him assistance with physical labor (Budzban v DuPage County Regional Office of Education, January 14, 2013). In light of these and similar cases, it is clear that the issue isn’t whether an employee’s obesity is a “disease” but whether it substantially limits a major life activity or is regarded as such and not much will change in the ADAAA analysis after the AMA announcement.
Weight as protected category?
Quite apart from the question of whether obesity is a disability covered by the ADA, I would like to see more discussion from commentators on whether discrimination based on weight should be prohibited generally (e.g., under Title VII). Currently Michigan is the only state to make it illegal to discriminate on the basis of weight yet this is a nationwide issue. For example, the Yale Rudd Center for Food Policy & Obesity at Yale University has reported that overweight people:
- earn less than non-overweight people in comparable positions;
- get fewer promotions;
- are viewed as lazy, less competent, and lacking self-discipline by employers and coworkers; and
- can be fired, suspended, or demoted because of their weight, despite good job performance and even though weight is unrelated to their job responsibilities.
Furthermore, an article published by the Rudd Center shows that the prevalence of reported weight discrimination among obese individuals nationwide has increased by 66% over the past decade and is now comparable to rates of racial discrimination in the United States, especially among women.
Those are pretty serious numbers and I think worthy of further discussion. Indeed, I’m just waiting for one creative attorney to take these numbers (and the conclusion that weight discrimination is more prevalent against women) and argue that an employer’s policy of discriminating against obese individuals has a disparate impact on women. Perhaps such an attorney might also assert a “sex-plus” discrimination suit.
Logging into computer or phone system at start and end of work shifts may actually be compensable for affected employees
The modern workplace provides employees with vastly different tools than in the past. Employees can literally be connected in real time to almost any place on earth. However, many business models require a level of customer support. What does that support cost? In a recent case, customer service representatives for an insurer pointed out some of those potentially forgotten costs in a very expensive lesson.
The customer service representatives (CSRs), who worked at Farmers Insurance Group call centers in California, Oregon, Kansas, Texas, and Michigan, were granted certification of several Rule 23 classes and conditionally certified an FLSA collective action in a wage suit alleging they were required to perform off-the-clock work. According to the complaint in Ribot v Farmers Insurance Group, the CSRs had to arrive 15 minutes before their scheduled shift each day so they could boot up their computers, load programs, log on to the phone system, check email, and perform other essential work duties.
In this instance, the call center employees alleged their insurance company employer failed to pay them for pre-shift time they had to spend ramping up for duty. They were able to show that putative class members were all subjected to common policies requiring pre-shift work — citing express directives from supervisors along with evidence of the great weight placed on “schedule adherence” — resulting in uncompensated work time.
Corrective notice. But the employer’s problems didn’t begin there. After a DOL investigation uncovered “significant and systemic” FLSA violations, Farmers in March 2011 agreed to pay more than $1.5 million in overtime back wages to 3,459 employees pursuant to a settlement agreement. The plaintiffs in the instant case filed their complaint that same month, but they did not learn of the DOL enforcement action until the agency issued a press release in July 2011. Shortly thereafter, they filed an amended complaint excluding the time period and facilities covered by the DOL settlement.
The CSRs also sought a corrective notice for those employees who accepted settlement checks, along with leave to file another amended complaint to amend the class definitions to include those who accepted the settlement payment but might not have validly waived their claims. At issue was whether those individuals “agreed” to the settlement.
In this case, the WH-58 form signed by the employees contained a clear statement that employees who accepted the payment gave up their rights to bring suit “for the payment of such unpaid minimum wages or unpaid overtime compensation for the period of time indicated above.” Thus, the employees who signed WH-58 forms were made aware that they would not be able to file or join a lawsuit concerning the same unpaid wages that they recovered in the settlement, the court reasoned.
Policy of pre-shift work. Turning to the merits of the CSRs’ claims, the court found that they presented substantial deposition testimony, from witnesses at multiple facilities, indicating that they were instructed to be ready to work by the time their shift started. Supervisors implied or explicitly stated that employees needed to arrive early to perform preliminary tasks. Moreover, Farmers’ “schedule adherence” policy loomed large. Schedule adherence was a key metric in employee performance evaluations, and it was part of the employer’s policy to require pre-shift work.
Class claims. Notwithstanding the fact that the named plaintiffs were not employed at all the branch facilities from which the putative class would be drawn, they presented sufficient evidence that the challenged policies at issue were in effect at all the employer’s call centers and appeared to be governed by company-wide policies. As to Farmers’ contention that the class would be unmanageable because there were claims asserted under the laws of five different states, the court noted that the CSRs were not seeking to certify a nationwide class, but rather five subclasses, each comprised of employees of one state. Moreover, the fundamental issue — whether the company had a policy of requiring pre-shift work — would not depend on various state laws to determine liability.
Having found that the CSRs’ state law claims regarding pre-shift work met the requirements of Rule 23, and that the underlying factual and legal questions were identical with respect to their federal claims, the court next determined that the FLSA class was similarly suitable for conditional certification.
Integral work activities. Of course, increased efficiency and productivity are laudable goals of employers, and as technology advances more tools are likely to become available on the desktop and at an employee’s fingertips. Still, employers must consider the impact their work policies have on the compensable time of their employees. Specifically, employers must be cognizant of whether pre- or post-shift activities are necessary to the performance of employees’ duties, and whether they primarily benefit the employer, such that the activity was integral and indispensable and defined the outer parameter of the workday. Under such circumstances, the pre- and post-shift activity would be compensable as asserted by these call center employees.