In what is known as a “snap” removal, a non-resident defendant may be able to remove a state court case to federal court based on diversity jurisdiction, despite resident defendant(s) being named in the suit. To effect a snap removal, the non-resident defendant must file removal papers before the plaintiff can effect service on any resident or forum defendants. Although this procedure is not available to defendants in every state, a recent Fifth Circuit opinion makes clear that snap removals are fair game in Louisiana, Texas, and Mississippi. See Texas Brine Co. v. American Arbitration Ass’n, 955 F.3d 482 (5th Cir. 2020).

Federal courts exercise diversity jurisdiction over civil claims that “exceed[] the sum or value of $75,000” that are “between citizens of different states.” 28 U.S.C. § 1332(a)(1). Diversity jurisdiction provides a means by which a non-resident and/or out-of-state defendant may avoid litigating in state court. Generally, a defendant may remove a case filed in state court to federal court under 28 U.S.C. § 1441(b)(1) within 30 days after being served with initial pleadings. According to 28 U.S.C. § 1441(b), “a civil action otherwise removable solely on the basis of [diversity] jurisdiction… may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Therefore, because the statute specifically prohibits the action being removed if a served defendant is a citizen of the state in which an action is brought, courts have held that removal is proper if it occurs prior to service on a resident defendant, and the value of the claim exceeds $75,000.

In a recent appellate court decision, the Fifth Circuit issued an opinion agreeing with the Second, Third, and Sixth Circuits approving snap removal.  In Texas Brine Co. v. American Arbitration Ass’n, 955 F.3d 482 (5th Cir. 2020), a Louisiana plaintiff filed suit against two Louisiana defendants and a New York defendant in Louisiana state court. The New York defendant filed a snap removal from state court to fed­eral court prior to service on the Louisiana defendants. The Fifth Circuit held that the existence of a resident defendant did not present a procedural barrier to removal because the only “properly joined and served” defendant at the time of removal was the New York defendant.

District courts in the Fourth, Seventh, Eighth, Ninth, and Eleventh Circuits remain divided on the issue of snap removal. However, for non-resident defendants sued in state courts in the Second, Third, Fifth, and Sixth Circuits, racing to the federal courthouse to remove an action before plaintiff can serve resident defendants is worth the effort of the hustle.

Jackson Lewis attorneys are available to answer any questions you may have regarding snap removals, employment-related litigation, or any other employment law issues.

 When does the statute of limitations period begin to run on a harassment claim?  The California Supreme Court has ruled in Pollock v. Tri-Modal Distribution Services, Inc. that the time to file a cause of action for failure to promote brought under the harassment provision of the Fair Employment and Housing Act (“FEHA”) starts to run when the employee knows or reasonably should know of the employer’s allegedly unlawful refusal to promote the employee.

Click here to read the full article on Jackson Lewis’ California Workplace Law Blog.

After nearly a decade of litigation, in Godrey v. State of Iowa et al, Case No. 19-1954 (June 30, 2021), the Iowa Supreme Court reversed a jury verdict granting $1.5 million in damages and $3.1 million in attorneys’ fees to the former Iowa Workers’ Compensation Commissioner, based on his allegation that the Governor of the State of Iowa reduced his salary because of his sexual orientation and in retaliation for prior complaints. The Iowa Supreme Court found insufficient evidence that the Governor knew that the plaintiff was gay when he reduced the plaintiff’s salary, which in part caused the plaintiff to resign his position.

The Court relied on its long-standing precedent that “to prove discrimination was because of an employee’s membership in a protected class, the plaintiff must prove the decision-maker knew of the employee’s membership in that protected class.” The Court found the fact that the plaintiff was openly gay, that several of the Governor’s top advisers knew the plaintiff was gay, and the Governor’s public opposition to gay marriage were together insufficient to establish that the Governor knew of the plaintiff’s sexual orientation. The Court indicated the fact that others in the workplace know of an employee’s non-patent protected class status is alone insufficient to make the inference that a decision maker was also aware. The Court also held that the plaintiff’s personal belief that the Governor knew his sexual orientation was insufficient when the plaintiff cited no factual basis for that belief.

The Court found that the State of Iowa and the Governor were entitled to a directed verdict and judgment notwithstanding the verdict (JNOV) on the plaintiff’s claims of sexual orientation discrimination and retaliation, reversed the judgment against the defendants and remanded the case for dismissal of the plaintiff’s claims.

This case is a good reminder for employers defending claims of discrimination based on an employee’s membership in a protected class that is not patent or recordable. Even if others in the workplace knew of an employee’s protected class status, this is alone insufficient to establish discrimination. The plaintiff must establish the decision maker was aware of their protected class status in order to establish discrimination.

  The U.S. Supreme Court has found that Philadelphia’s ordinance requiring a private foster care agency to certify same-sex couples as foster parents burdened the agency’s religious exercise in violation of the Free Exercise Clause of the First Amendment. Fulton et al. v. City of Philadelphia, Pennsylvania et al., No. 19-123 (June 17, 2021).

Justice John Roberts, writing for the Court, found that Philadelphia unconstitutionally burdened the religious exercise of Catholic Social Services (CSS) — a private foster care agency in Philadelphia — by “forcing it to either curtail its mission or to certify same-sex couples as foster parents in violation of its religious beliefs.”

The Court’s decision primarily focused on whether Philadelphia’s Fair Practices Ordinance was both neutral and generally applicable and, therefore, constitutional, even if it incidentally burdened religion. For employers, however, the Court’s decision that CSS’s actions were not subject to the public accommodation provisions of Philadelphia’s Fair Practices Ordinance presents significant implications in cases alleging discrimination in places of public accommodation. The scope of this decision is limited in its application to the private sector.

Click here to read the full article on the Jackson Lewis website.

 

 

 

In its first all-virtual/remote video-cast hearing, the Equal Employment Opportunity Commission (EEOC) discussed workplace civil rights implications of the COVID-19 pandemic for employees and employers.  (Transcript of the April 28, 2021 hearing is available here.)  During the hearing, Chairwoman Charlotte Burrows acknowledged that the EEOC must help employers navigate the new workplace landscape created by the pandemic, including equal opportunity issues related to telework, public health announcements, and more.  Commission members also acknowledged the need for EEOC guidance on COVID-19-related issues, such as accommodation under the Americans with Disabilities Act (ADA), vaccine incentives, mandatory vaccination policies, selection criteria for layoffs or furloughs, and return-to-work policies and challenges.

Not long after the hearing, the EEOC updated its guidance on COVID-19 to include additional information on vaccines, incentives, and the confidentiality of vaccination status.

The hearing itself included two panels of witnesses from, or representing, communities hit especially hard by COVID-19.  Members of the Commission asked the panelists various questions to gain insight on how the EEOC should address contentious workplace issues. The first panel was comprised of a senior economist and policy expert, directors of advocacy groups representing Asian Americans, migrant workers, and women, and the presidents and executive directors of the Society for Human Resource Management and the Lawyers’ Committee for Civil Rights Under Law. Members of the Commission asked the first panel how, following months of extended periods of telework, the EEOC could help employers determine whether in-person work is an essential function. Panelists suggested the EEOC focus on retaliation, specifically in the context of changes in schedules and remote work, as well as establishing best practice guidance for safely returning to physical work sites, safety standards, and vaccination education. Other topics raised by the Commission in the first panel included: the type of guidance needed from the EEOC to address recent heightened awareness of discrimination toward the Asian American and Pacific Islander communities during the COVID-19 pandemic; whether retaliation claims have increased during the pandemic, and how the EEOC could reach affected vulnerable groups; and the type of vaccination incentives employers should offer.

The second panel included an expert on the American-Indian community, economics consultants, national labor and health policy experts, senior attorneys and experts with various organizations that combat disability discrimination, age discrimination, religious and national origin discrimination, as well as a Senior Vice President and Assistant General Counsel at the Center for Workplace Compliance (a national employer association). In response to Commission questions, the second panel recognized a pandemic-related increase in failure to accommodate claims, especially with regard to teleworking accommodations, as well as an increase in workplace harassment claims arising in new contexts, including virtually and in remote call settings. The second panel also discussed the need for guidance regarding vaccine incentives and mandatory vaccine policies to help employers avoid potential Title VII violations.  With regard to harassment claims, panelists recommended a strong anti-harassment policy and modifications to training presentations to address some of these new contexts.

The EEOC is expected to issue additional guidance on these and other pandemic and post-pandemic workplace challenges soon.

Jackson Lewis attorneys will continue to monitor and report any further developments from the EEOC. In the meantime, if you have questions about the EEOC, or any employment law issues, please do not hesitate to contact Jackson Lewis attorneys.

California law is not typically seen as amiable to compelling employees to arbitrate their claims. However, in Franklin v. Community Regional Medical Center, ___ F.3d___(9th Cir. 2021), the Ninth Circuit panel upheld a motion to compel arbitration by a non-signatory to an arbitration agreement based on California law.

Isabelle Franklin was employed by a staffing agency and assigned to Community Regional Medical Center’s hospital (CRMC). Franklin signed a mediation and arbitration policy and agreement that required Franklin and the staffing agency to arbitrate “all disputes that may arise out of or be related to [Franklin’s] employment, including but not limited to the termination of [Franklin’s] employment and compensation.” Franklin also signed an assignment contract with the staffing agency when she was assigned to CRMC. The assignment contract set forth the terms of her assignment including her hourly wage, overtime rate, length of shifts, and business expense reimbursement. The assignment agreement also included an arbitration clause. CRMC and Franklin had no contracts between them.

Franklin worked at CRMC for two months and then brought a class and collective action against CRMC only, alleging various state and federal wage and hour violations, including that CRMC required Franklin to work during meal breaks and off-the-clock.

The district court granted CRMC’s motion to compel arbitration despite being a non-signatory to the contracts between Franklin and the staffing agency. The district court stated that Franklin’s allegations were “intimately founded in and intertwined with” her contracts and employment with the staffing agency. The district court held that, under California law, Franklin was equitably estopped from avoiding the arbitration provisions in her employment agreements with the staffing agency.

The Ninth Circuit panel affirmed the district court decision, holding that California law allows a non-signatory to invoke arbitration under the doctrine of equitable estoppel even when the signatory attempts to avoid arbitration by suing non-signatory defendants. The Ninth Circuit stated that the doctrine of equitable estoppel prevents a party from “playing fast and loose with its commitment to arbitrate.”

This case is instructive for employers who utilize staffing agencies and highlights the importance of understanding the agencies’ agreements with their employees. Moreover, staffing agencies and similar entities should review their contracts with employees to ensure their clients are encompassed within arbitration agreements they enter into with employees.

Jackson Lewis attorneys can assist in evaluating the enforceability of arbitration agreements and coverage, as well as assisting in developing arbitration agreements.

The Seventh Circuit Court of Appeals recently reaffirmed employers’ rights under Title VII to make merit-based hiring decisions, even when it means rejecting a candidate who recently raised a meritorious claim of discrimination.

In Robertson v. Wisconsin Department of Health Services, 949 F.3d 371, 374 (7th Cir. 2020), the plaintiff reported discriminatory conduct in the workplace which resulted in her supervisor’s termination.  The plaintiff then applied for her supervisor’s position but was not awarded the job.  She later complained that the candidate selected to replace her supervisor treated her less than ideally.  The district court rejected the plaintiff’s Title VII retaliation claim because she failed to establish that her prior complaint was the “but-for” cause of her not being promoted and because she couldn’t overcome her employer’s legitimate motive for hiring another candidate. The court further held that the new supervisor’s minor workplace slights are not adverse employment actions that can give rise to a claim for retaliation.

The Seventh Circuit agreed with the district court.  Although the employee claimed that she was “objectively the most qualified candidate” for the director-level position, the Seventh Circuit held that an employee’s “own opinions” about her qualifications were not enough to prove the company’s selection of another candidate was retaliatory.  Rather, the plaintiff had to show that there could be no dispute that she was “clearly better qualified” for the position.  Here, she could not do so because the employer documented its legitimate reasons for selecting another candidate.

The plaintiff also claimed her new boss retaliated against her by disregarding her thoughts and preventing her from performing tasks she was assigned under her previous supervisor.  The court held that being given the “cold shoulder” or “snubbed” by a supervisor is not a materially adverse action that supports a claim for retaliation.  Instead, plaintiffs must show a materially adverse action, like a “change in work hours, compensation, or career prospects.”

The Seventh Circuit’s ruling in Robertson reaffirms several core principles for employers.  First, when making any hiring or promotion decisions, especially when considering a candidate who recently engaged in protected activity, it is critical to document the selection process, including the legitimate business reason for selecting a particular candidate.  Second, not every workplace slight is retaliation.  However, employers should seek counsel before making significant changes to the hours, compensation, or job responsibilities of employees who recently engaged in protected activity.

Jackson Lewis attorneys are ready and able to help employers navigate the complexities of employee complaints and their effects on employment decisions.  Please contact us if you have questions or need assistance.

 

When it comes to striking a balance between the religious rights of government employees and the government’s duty to avoid Establishment Clause violations, “context matters.”

In Kennedy v. Bremerton School District, 991 F.3d 1004 (9th Cir. 2021), the Ninth Circuit held that the public prayer by Joseph Kennedy, a football coach employed by the Bremerton School District, at the fifty-yard line immediately after football games violated the Establishment Clause and was not protected speech. This result was driven in large part by the following circumstances:

  • Kennedy spoke as a public employee rather than as a private citizen. Public employees who make statements pursuant to their official duties speak for the government rather than for themselves. Kennedy engaged in a public demonstration where he audibly prayed while kneeling in the middle of a football field, in the course of his duties as a football coach who was tasked with providing motivational speeches at the end of games, and in full view of his students and the public. Thus, Kennedy spoke as a public employee and his speech was not protected.
  • The school district had a compelling interest to avoid Establishment Clause violations. The government may not convey a message that a religion is favored or preferred, and the courts are particularly vigilant about monitoring for Establishment Clause violations in public schools. Kennedy had a long history of on-field religious activity, engaged in media blitzes to generate publicity regarding his on-field prayers, was intent on sending a message to students and the public, and allowed students to join in his prayers. Given these circumstances, an objective observer would believe that Kennedy’s actions were endorsed by the school district, and the school district was justified in limiting his speech to avoid an Establishment Clause violation.
  • The school district attempted to accommodate Kennedy’s religious beliefs. The school district, as Kennedy’s employer, attempted to engage in an interactive dialogue to accommodate his beliefs while avoiding Establishment Clause violations. It suggested praying in private locations or praying on the field after the stadium had emptied. Kennedy did not respond but indicated through the media that the only acceptable outcome would be for the school district to allow him to pray on the fifty-yard line immediately after games. The school district was not required to accommodate his request because it would constitute an Establishment Clause violation and, therefore, impose an undue hardship on the school district.

The U.S. Constitution enshrines and protects the right to free speech and religious liberty, but these rights are not boundless. The Establishment Clause compels government neutrality between religions, as well as between religion and non-religion, and may limit public employees’ rights when they are government actors. On the other hand, the Establishment Clause may not quash all of a government employee’s religious expression. The religious words and actions of public employees create scenarios that challenge government bodies to craft unique solutions by balancing the rights of the individual with the interests of the state.

Although federal, state, and local governments have additional requirements to consider, both public and private employers must tread carefully when encountering and accommodating their employees’ religious practices. Jackson Lewis attorneys are available to help guide employers through this process.

  As COVID-19-related litigation increases, courts are being called upon to interpret the scope of employers’ duties to protect their employees with relation to the virus.  On May 10, 2021, a California federal judge dismissed an amended complaint brought by a spouse attempting to hold her husband’s employer liable for her COVID-19 infection.  The judge held that California’s worker’s compensation law barred the wife’s  claim, noting that the employer’s duty to provide a safe work environment is limited to the employer’s employees.  Corby and Robert Kuciemba vs. Victory Woodworks, Inc., No. 3:20-cv-09355-MMC (N.D. Cal. May 10, 2021).

In February 2021, the California District Court granted Victory Woodworks’ motion to dismiss Mrs. Kuciemba’s case, citing that her claims were barred because worker’s compensation was the exclusive remedy for her claims.

Mrs. Kuciemba amended her Complaint, arguing that Victory Woodworks did not exercise ordinary care to prevent exposure to COVID-19, as a result of which, Mr. Kuciemba was exposed to the virus, and brought home the virus on his clothes and other personal items.  This legal concept of “take-home exposure” is common in asbestos litigation, and is founded on the idea that employers and premises owners have a duty to exercise ordinary care to prevent exposure to asbestos due to asbestos fibers being carried on workers’ clothing.

Click here to read the full article on the Jackson Lewis California Workplace Law blog.

The Florida Supreme Court recently amended Florida Rule of Civil Procedure 1.510 (Summary Judgment), adopting the less restrictive federal summary judgment standard as articulated by the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).  Summary judgement is the procedural mechanism whereby lawsuits may be disposed of prior to a trial if the judge determines that, based on the uncontested material facts in the case, there is no way for the nonmoving party to win.  The amended Rule 1.510 will apply to any summary judgment motion decided on, or after, May 1, 2021, including in pending cases.  See In re Amends. to Fla. R. Civ. P. 1.510, No. SC20-1490, 309 So. 3d 192 (Fla. Dec. 31, 2020).

In its decision to amend Rule 1.510, the Florida Supreme Court noted key distinctions between the existing federal and Florida jurisprudence with regard to summary judgment motions. First, federal courts have long applied a far narrower definition to the term “genuine issue of material fact.” When determining whether a genuine issue of material fact exists, federal courts ask whether “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”  In re Amends. to Fla. R. Civ. P. 1.510, 309 So. 3d at 193 (internal quotations omitted).  Florida courts, on the other hand, have historically denied summary judgment where any competent evidence creates an issue of fact, no matter how “credible or incredible, substantial or trivial,” so long as “the slightest doubt is raised.”  Id.  As a result, the vast majority of Florida state court summary judgment motions are denied, and Florida litigants are routinely forced to spend significant time and resources litigating and trying incredibly weak cases (or entering into large settlements).  This chain of events is far less common under the federal summary judgment standard, which attempts to nip meritless lawsuits in the bud. Taking all of this into account, the Florida Supreme Court explained that its objectives in adopting the federal standard are “to improve the fairness and efficiency of Florida’s civil justice system, to relieve parties from the expense and burdens of meritless litigation, and to save the work of juries for cases where there are real factual disputes that need resolution.”  Id. at 194.

For many state court practitioners and their clients, the new Florida standard is a positive change. From an employment litigation defense perspective, the change will afford a greater opportunity to dispose of certain cases early on and will reduce the pressure on defendants to pay large settlements to avoid the costs of defending weak cases through trial.

If you have any questions regarding the new Florida summary judgment standards, or any other employment law questions, please do not hesitate to contact Jackson Lewis.