When Disabilities Compete

April 18, 2012

Gentlemen, start your engines.  The city of Indianapolis is facing a lawsuit arising from competing disability claims.  In one corner, a person using a service dog to help them with their disability (while the typical scenario is the seeing-eye dog, apparently this is a paprika-sniffing dog).  In the other, a person with a dog allergy.  Paprika

The Americans with Disabilities Act (along, likely, with the Indiana state law equivalent), in a nutshell, requires employers to not discriminate against employees in the terms and conditions of their employment on the basis of a disability, so long as the employee can perform the essention functions of their job with or without reasonable accommodation.  Here is where it gets sticky.  Let’s first assume both employees in question are disabled within the meaning of the statute, which they likely are as they suffer from physical impairments (exposure to specific allergens) that substantially limit a major life activity (e.g. anaphylaxis preventing breathing in severe reactions).  Using a service dog or preventing dogs in the workplace are both likely reasonable accommodations.  Problem is, these are mutually exclusive accommodations.

Of course, there is an escape clause:  employers are not required to make an accommodation, even if reasonable, if it otherwise would impose an undue hardship.  Here, if the dog-allergy employee (DAE) is valuable, the employer could state that it would be an undue hardship to permit dogs as it would cause the loss of services of the DAE.  It is an affirmative defense that the employer would have to prove, though it may be conflated with the reasonableness of the paprika-allergy employee’s (PAE’s) request.  Also, employers are not required to provide the most reasonable accommodations, or the best reasonable accommodations, but rather one of the list of possible reasonable accommodations.

In the choice between DAE and PAE, the employer is free to choose DAE.  However, the inquiry does not end there.  The city apparently offered her only her job w/o dog or unpaid leave, neither of which are reasonable.  What about a transfer of position or location that could accommodate both?  Cities are usually sufficiently spread out to permit such an accommodation, so long as there is no conflict with civil service laws or collective bargaining agreements.  So, PAE may yet have a case; in the meantime, she should be eligible for unemployment benefits.

Also, who knew?  Paprika is everywhere!

First Amendment trumps Equal Opportunity Employment

January 11, 2012

Today, the Supreme Court in Hosanna-Tabor Church v. EEOC  issued a unanimous ruling on the First Amendment.  While this blog regularly celebrates the Freedom of Speech clause, the decision focuses primarily on the Free Exercise Clause and, to a lesser extent, the Establishment Clause.

In a nutshell:

  1. Church had 2 types of teacher–lay and ministerial.
  2. Ministerial teacher develops disability and takes leave of absense; replaced by lay teacher.
  3. Church rules normally prioritize ministerial teachers, but when this teacher tries to get her job back, she is denied.
  4. She becomes insubordinate and complains of an ADA violation.
  5. She is terminated.
  6. Teacher sues the church for retaliation against her for making an ADA claim.
  7. Supreme Court says church wins.

Assuming there was blatant retaliation, the church still wins.  Why?  Because if the government were to tell a church they couldn’t fire a particular minister, that would prevent a church from freely deciding who gets to spread the gospel and who doesn’t.  To its extreme, though excepted specifically in Title VII, if the government had the power to dictate who a church could fire, it could prevent the Pope from defrocking an American Bishop who pronounces the Shahada and converts to Islam.  Basically, the 1st Amendment lets a religion freely decide who gets to be a minister, even if the reasons for hiring or firing are otherwise abhorrent to society.  If you don’t like it, you are free to change religions.  Or declare the person who did the firing a heretic and stone them.  Either way.

The Mark of Cain

November 3, 2011

Looks like Herman Cain is having a three way and not in the awesome sense.  A third woman has reportedly come forward with an allegation that Mr. Cain acted inappropriately toward her.  While I’m sure someday Mark might take a pro-sexual harassment case to the Supreme Court, arguing for the 1st Amendment right to be saucy, for now it is considered unlawful.

A side note to political candidates:  if you have a skeleton or three in your closet, reveal it yourself.  It will come out and you want to control the message.

Sexual harassment is a fascinating area of the law.  Sometimes, and rarely, it is blatant quid pro quo, the old casting couch.  Most times, it is something said that offended the listener, with some sexual or gender based content, that is deemed to have gone too far.  It’s like pornography, Rule 34 aside, you generally know it when you see it.  The hard fought cases are the ones where it is less clear.  According to the article:

she said Cain told her that he had confided to colleagues how attractive she was and invited her to his corporate apartment outside work.

Maybe that implied he wanted to sleep with her.  Maybe he was paying her a compliment and the invitation was platonic or business related.  President Obama is an attractive man and I’d welcome him to dinner at my house.  It doesn’t mean I want to become the First Lady by proxy.  As to the complaint Mr. Cain “settled” or reached an “agreement” on (synonyms to me, different to him), he states that it was about a comparison he made of a female coworker to the height of his wife.  If that was a pickup line, it is the worst ever; what woman gets turned on by a man who compares her to his wife?  I’m pretty sure that violates Ashley Madison’s own standards.  But, she may have taken it as such, and maybe that is what he intended.  There may be more to it, but he isn’t talking and she is bound by a confidentiality agreement.  Given both of these, and whatever the third is, you can see why these cases take a lot of lawyering.

As to the two that settled, it sounds like a year’s severance was given for one, and the other got something confidential.  A year’s severance is a pretty nice package; it’s not nuisance.  Confidentiality, on the other hand, does not imply a large settlement; some companies demand it even for nuisance suits.  They don’t want to set any form of precedent.

Some commenters have suggested she breach the confidentiality clause.  That is a huge no-no.  She’d likely have to repay the money, and the statute of limitations has run on filing a claim.  Plus, she’d probably owe attorneys’ fees.  And we’ve all seen how much it sucks to be hit with attorneys’ fees.  Others have suggested Mr. Cain is violating a non-disparagement clause.  My guess is: no.  Like confidentiality clauses, these are typically one sided.  An employee might get a neutral reference clause, but it usually isn’t as broad as the non-disparagement clause given to the employer.

My advice to Mr. Cain:  don’t blame Gov. Perry or Romney.  Air your dirty laundry now.  And watch what you say in the future.  I don’t want to hear any claim that “is” is ambiguous.


Cum dilectione hominum et odio vitiorum

October 26, 2011

By Jay Wolman

As the newest Satyriconista, with a practice of civil litigation and employment law in Boston, I thought I’d begin my first post with something high-brow.  Everything sounds better in Latin.  This was St. Augustine’s way of saying “Hate the player, not the game”.  Fast forward 1500 years and the message remains relevant.

David Madden, the now former mayor of Weymouth, Massachusetts, a small town about a half hour south of Boston, is the player.  The public sector pension system is the game.  He is getting a lot of flack for manipulating the system to his benefit.  Unlike most private sector pensions (union pensions excluded), public sector pension benefits in many jurisdictions, including Massachusetts, are not determined solely by how much the worker contributes to the system (defined contribution), but rather include benefits based on status or job classification (defined benefit).  [Yes, pensions are far more complicated than that, but nuance does not matter for this discussion.]  It seems that Mayor Madden would make an extra $30k per year by retiring as Fire Chief rather than Mayor.  So, Mayor Madden did some nifty maneuvering with the help of his pals:  He takes leave from the position of Mayor at the end of his second term, appointing his buddy, the Town Solicitor (i.e. the top lawyer) as interim Mayor.  The incumbent Fire Chief takes a voluntary demotion and the Solicitor (now Mayor) appoints Mayor Madden as Fire Chief.  Two days later, without showing up to work, Fire Chief Madden retires and puts in for the higher pension.  And the Town approves it (the State is fighting it, but has lost in Court so far).

Now, not every Mayor can get away with this–Mr. Madden actually was the Fire Chief before becoming Mayor.  He technically took a leave of absence, meaning he had this in the works for eight years.  And his buddies go along with it.  Sure, it looks bad, but this is the system that was set up and no laws appear to have been broken.  I actually feel bad for Mayor Madden; he has to pay legal fees to defend what the law allowed him to do (although I am a lawyer, it is a personal pet peeve that “loser pays” is not the American Rule.)  If my fellow Massachusetts residents don’t like what he did, they shouldn’t take it out against Mayor Madden, they should change the rules.  Hard to do when the legislators also game the system, but not impossible.

Here’s a thought for my first post as a Satyriconista:  eliminate pensions.  I’m not saying we renege on current promises, but I’ve wondered why we even have this complicated mess. (I know, they are the result of WWII wage freezes.)  As we are no longer at war with the Axis powers, I don’t know anyone who really thinks “Hey, boss, I know I’m doing all this hard work for you now, but I don’t want you to pay me for all of it now.  I think it would be great if you held on to a portion so you could give it to me in thirty years.  I trust you to handle it more than I trust myself.  And I know you’ll pay every penny.


Dominatrix Lawyer Spanks Former Boss

October 21, 2011

Former New York state prosecutor Alisha Smith, who helped secure a $5 billion settlement from Bank of America, was unceremoniously suspended from her job because she spent her spare time as a dominatrix.

She was suspended from her job because the New York Post questioned whether she was paid for her nocturnal activities. The prosecutor’s office has a policy that prohibits outside employment without prior approval if the prosecutor earns more than $1,000. (source)

The New York Post reports:

Famous in the S&M world for her skillful spandex-clad spankings, Smith, while not denying her freaky ways, says she did not make money trolling the dungeons while working for the state’s top law-enforcement official, a job she’s held since 2002. (source)

Nice of the New York Post to have a positive story about Ms. Smith, since its sloppy reporting on her private life is why she got suspended in the first place.

She appeared at a press conference with Gloria Allred by her side to quit her job. (source) Working for $78,000 a year at a job where your boss doesn’t give you a chance to explain when the New York Post, of all places, writes crap about you — yeah, that’s grounds to say “I don’t get paid enough for this shit.”

Lets keep score:

    She kicks the shit out of Bank of America and brings $5 billion into the public coffers.

    The New York Post writes a sloppy piece full of muck and innuendo about a her private life.

    The prosecutor’s office lacks a spine and suspends her, without so much as giving her a chance to respond to the story.

    And now all of us suffer, because a seemingly good prosecutor is now making the Gloria Allred circuit instead of kicking the crap out of criminals.

Stripper lacks class (status, that is)

October 20, 2011

She take my money, well I’m in need
Yeah she’s a triflin’ friend indeed
Oh she’s a gold digger way over time
That digs on me

An exotic dancer by the stage name “Ms. Behaved” sought to be a class representative in a class action against Fantasy Topless in Colton, California. Beachemin v. Tom L. Theaters, Inc. No. SACV 11-0394-DOC (C.D. Cal. Oct. 6, 2011). Beachemin brought suit against Fantasy Topless in an increasingly-common class action claim against strip clubs — alleging that the club misclassified the dancers as “independent contractors” as opposed to employees. The claim further alleged that as employees, the club failed to pay the dancers minimum wage and forced them to share tips with the management.

Fantasy Topless succeeded in knocking out Beachemin because she was not a proper member of the class she purported to represent.

It is well-settled that Plaintiff must be a member of the class for which she seeks class certification, in order to satisfy both the typicality and adequacy prongs of Federal Rule 23 class certification requirements. “[A] class
representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” (Order at 5)

Ms. Beachemin defined the purported class as follows:

[a]ll individuals, who at any time from the date four years prior to the date the Complaint was originally filed continuing through the present, worked as an exotic dancer at Fantasy Topless in Colton, California, but was designated as an independent contractor and therefore, not paid any minimum wages. (Order at 5-6).

Unfortunately for Ms. Beachemin, the court found that she wasn’t exactly a member of the class that she purported to represent. The Defense showed that Beachemin was never actually hired at the club, she never signed a “Dancer Contract” with the club (as all dancers were required to do), she never had a dancer license from the City of Colton, as all dancers are required to do. See Order at 6-7. The evidence showed that she only tried out to be a dancer, and only performed one dance for approximately three minutes. On the other hand, Beachemin testified that she worked at the club for two days, for a total of less than eight hours. The court was not persuaded and denied the Plaintiff’s motion for class certification.

Despite the Court’s cold reception to Ms. Beachemin’s claim to represent the class, the Court did not seem hostile to the claims themselves.

Plaintiff has accordingly failed to meet her burden of proving that she is an adequate class representative and that she possesses claims typical of the class. There is no indication that Plaintiff ever signed an independent contractor agreement, Plaintiff was never paid by Defendants, and Plaintiff was not forced to share her few dollars in tips with Defendants or any other Fantasy Topless employee. As such, she could not have been misclassified as an independent contractor, like the remainder of the Purported Class, and she suffered no injury from the Defendants’ tip-sharing policy, unlike the remainder of the Purported Class. This Court does not wish to unduly hamper the potential success of the rest of the Purported Class by approving Plaintiff as class representative when she appears not to fall within the her own definition of the Purported Class. The Court expresses no judgment on the likelihood of obtaining class certification on the basis of the above-described claims with a different member of the Purported Class serving as class representative. (Order at 8)

I ain’t sayin’ she a gold digga. But she does sound like someone looking for an easy payday. The judge saw through it, but once the lawyers find a dancer who was a proper class representative, they may find greater fortune. While most strip clubs traditionally classify their dancers as independent contractors, the employee vs. independent contractor analysis is trending against the clubs. See Clincy v. Galardi South Enterprises, Inc., No. 1:09-CV-2082-RWS (N.D. Ga. Sept. 7, 2011); Thompson v. Linda and A, Inc., 779 F. Supp. 2d 139 (D.D.C. 2011).

Strip club owners need to make sure to cover their asses. Just like the protagonist in Golddigger sings “we want prenup,” dance club owners need to have their relationships papered — and papered right. And, if it costs a little more to classify a dancer as an employee vs. an “independent contractor,” they might just need to bite that bullet. The decisions are heavily trending in that direction, and the consequences can be quite expensive.

Advice to Law Students looking for a job — don’t be a goddamned crybaby

December 22, 2010

Popehat has a bad-ass post on an “incident” at Syracuse University School of Law. The short version is this: Syracuse Law student Len Audaer published a blog satirizing his class, the administration, and public figures.

From Popehat’s story.

Somebody complained. Syracuse decided to appoint a “prosecutor” to investigate the blog and determine whether to bring formal charges against Audaer under the Syracuse discipline system. All of that — the fact that someone complained about satire, and that the school didn’t immediately reject the complaint — is appalling enough.

But Syracuse, and specially appointed prosecutor Syracuse law professor Gregory Germain, are angry about the criticism and are doubling down. As is often the case, the attempted cover-up is worse than the initial conduct.

Professor Germain has filed a motion with the Syracuse disciplinary body demanding a gag order against Audaer and his defense team. He wants Syracuse to issue an order forbidding Audaer from disclosing the contents of his own blog, or anything he gets from the university about the proceedings against him, to any third party unless the third parties agree in writing (1) not to disclose the names of any of the people identified in those blog posts or documents without their consent, and (2) to publish the entirety of documents, not just quotes from them, “in order to prevent misleading selective posting of information.”

In other words, Professor Germain thinks that Audaer should be prohibited from sending FIRE, or me, or the Chronicle of Higher Education, or CNN, an unredacted copy of this blog post without the written permission of Ellen DeGeneres. Professor Germain also thinks that Audaer should be prohibited from sending FIRE, or me, or anyone else one of his own blog posts, or any document from the proceedings against him, unless we agree to Professor Germain’s preferred method of writing about it. Professor Germain explicitly demands censorship of documents as a method of getting the type of media coverage of the proceedings that he wants. Of course, no respectable reporter — and no self-respecting blogger, or American — would agree to present materials only in the manner that a censor demanded. Moreover, given an internet in which it is trivially easy for Syracuse and its supporters to host and publish the raw documents themselves, the demand for written guarantees of full publication as a method of achieving “fair” coverage is transparently dishonest and/or stupid. The gag order is deliberately calculated to prevent Audaer from distributing his blog posts and the documentation of his persecution at all.

Remember what the “misconduct” is — a satirical blog.

This profession is full of uptight effete fucking pussies with sticks up their asses. You know why? Part of it is because the profession seems to attract them. But, the bigger part of it is that law schools cultivate uptight stick in the ass pussydom. Of course, just like a good TSA agent, or other low-rung pussy, Professor Germain whines that he is “just doing his job,” and he just wants the individuals who whined to be able to maintain their anonymity.

The students, faculty and staff who were targeted in the sucolitis blog did not consent to have their good names used in the blog, and do not wish to be the subject of attacks on the internet. One of the students has expressed to the Prosecutor a concern for her physical safety. Most wish to find jobs in the legal profession, and feel that bringing further public attention through the publication of their names could damage their
employment opportunities, and would cause further humiliation and embarrassment.

Again, why write my own words when Popehat knocks the shit out of it:

Leave aside, for the moment, the ignorant and authoritarian proposition that people have some sort of right not to have their names used on the internet, and not to be “attacked” on the internet. Focus on this instead: Professor German suggests that the people satirized in the blog fear that having that satire spread further as a result of their own complaints about it would be unfair, because potential employers might see it and their feelings might be further hurt.

I interview, and hire, people at a law firm. I cannot imagine a situation in which I would decline to hire someone because they had been the target of satire. That’s because I’m not a fucking idiot. Perhaps the subjects of Audaer’s blog aspire to be hired by fucking idiots. It sure looks like they are going to the right school, then.

Syracuse’s excuse for a disciplinary system apparently protects the anonymity of accusers, and supports efforts to prevent the publication of their identity. That’s common with systems that have, as their true aim, the uncritical acceptance of accusations and the swift arrival at a predetermined conclusion of guilt. See, if you allow the identity of an accuser to become public, then all sorts of inconvenient things happen. They might suffer consequences for making false accusations. People might read about the case and come out of the woodwork and say “Vance Victim couldn’t have been assaulted by the defendant on Saturday night; I saw him passed out over at Delta house that night,” or “Vance Victim is the same guy who threatened to accuse me of assault twice last year”, or “Vance Victim is a person with a reputation for being a liar and a cad.” In short, That’s why protection of accuser anonymity is repellent and inimical to modern systems of justice.

But Professor Germain does have the kernel of a point about privacy. It’s just not the point he thinks he has. It’s irrational to think that employers will be put off because a humor blog satirized you. However, it’s entirely rational to fear that, if employers find out that you ran to the administration to complain about being satirized, they might not want to hire you. I would happily hire people of every color, religion, and sexual preference. I would hire Republicans and Democrats and Independents and Greens. But I would never, in a million years, hire someone who complained to his or her school administration about being the subject of satire. People who run to the authorities to complain about being the subject of satire are weaklings, crybabies, losers, and nasty censorious authoritarians. I view them as likely to be of sub-optimal intelligence, insufficient fortitude, and poor morals. Those are not the qualities of a reliable employee or a good lawyer. They are not people I want to hire or be friends with. They are people I want to ridicule and shun.


Now I don’t hire very often. When I do, I have a very strict “no fucking pussies” screening process. And, if you get past me, you are sure as shit not getting past my partner, Jessica, who is less tolerant of pussies than I am.

I will tell you one thing for certain: I won’t even interview a Syracuse Law graduate who doesn’t publicly speak out against this travesty, and I would encourage all other lawyers and law firms to take the same stance.

To follow this case more:

Len Audaer’s site on the case. (here)

FIRE’s file on the case. (here)

And if you’re looking for an end-of-the-year charity, donate to FIRE here.

Big pot joints big labor

September 20, 2010

By J. DeVoy

Despite the decline of organized labor in the United States with sagging manufacturing, construction and transportation sectors – areas long associated with unionized workforces – the Teamsters union has made inroads with medical marijuana growers. (source.)

The Teamsters added nearly 40 new members earlier this month by organizing the country’s first group of unionized marijuana growers. Such an arrangement is likely only possible in California, which has the loosest U.S. medical marijuana laws.

But it’s still unclear how the Teamsters will safeguard the rights of members who do work that’s considered a federal crime.

“I didn’t have this planned out when I became a Teamster 34 years ago, to organize marijuana workers,” said Lou Marchetti, who acted as a liaison between the growers and Oakland-based Teamsters Local 70. “This is a whole new ballgame.”

In the interest of fairness, the author bloodies the Teamsters’ collective nose a bit.  The union has a storied history, and its members are not strangers to sideways glances from Johnny Law.

Historically, the Teamsters are no strangers to entanglements with federal law enforcement, from the infiltration of the union by organized crime to the disappearance of union leader Jimmy Hoffa. If the federal government decided to crack down on [the indoor marijuana grower at issue], Marchetti said the union was still figuring out how it might intervene.

Still, there are unresolved issues as to the labor classification of these workers.  Depending on how the employees are classified by law, their employment may not be within the scope of the National Labor Relations Act and under the jurisdiction of the National Labor Relations Board, making their organization less effective.  Remedies within California – which is the most populous state in the country and arguably just as good as the Federal government in many respects – could still be available to the freshly unionized employees, though.

Michael Leong, assistant regional director for the Oakland office of the National Labor Relations Board, said he did not know of any case in which the federal government had been asked to mediate a dispute involving a business that was blatantly illegal under federal law.

He also said it wasn’t clear if the new Teamsters would count as farmworkers, which would put them outside the NLRB’s domain.

Michael Lee, general counsel for the California Agricultural Labor Relations Board, said the growers probably would qualify as agricultural workers. Any conflict between workers and the union would likely fall under his board’s jurisdiction, but contract disputes between workers and management would have to be decided in state court.

Broken Penises and the Law

September 3, 2010

Her reverse cowgirl is, apparently, both incredible and dangerous

By Marc J. Randazza

As office workers, few attorneys have the opportunity to contemplate what workplace injuries can mean to their clients. Honestly, what’s the worst injury you can get on the job in a law office? A paper cut? Your panties in a wad?

In the porn industry, like any other, workplace injuries are an issue. Normally, it is the female talent that winds up a little sore. I mean, those high platform heels will make a girl’s feet hurt like you wouldn’t believe. But, even for the men on a straight porn set, even one that involves no strap-ons, danger lurks… waiting to pounce upon an unsuspecting victim.

Prince Yahshua, CEO of Silverback Entertainment, recently met this unfortunate fate. (Source.) While working with Bethany Benz, a/k/a Caviar, a reality television star and porn novice, they were filming a scene where she was riding him “reverse cowgirl” For those of you who don’t know that position, she was on top of Prince, straddling him while facing toward the camera. The couple lost their natural rhythm and, on an upward thrust, Prince had an epic miss, followed by an audible “pop.” Prince’s penis began gushing blood, and he was rushed to a hospital. There, he underwent surgery for a torn urethra and ripped penile muscle wall, staying in the hospital for three days.

Luckily, Prince Yashua is doing well, and we wish him a continued speedy recovery.

Of course, this being a law blog – we need to look at the legal angle – even just in the hypothetical. Could the Prince get compensation for his broken scepter? If he is classified as an employee of the studio, the poor guy is left with nothing but a workers’ compensation claim. Meaning — he gets partial wage replacement and some medical bills paid. That would really make for a boring blog post though, wouldn’t it?

Sweet mother of god... NO!!!!!

On the other hand, if he is classified as an independent contractor, then one might think that this is a case that turns on whether Bethany was negligent or not in her reverse cowgirl ride. Did she have a duty of care, and if so, did she breach that duty, thus causing injuries to our unfortunate royalty? Is this a case of, “you break, you buy?”

Incredibly, this precise issue has been litigated before. See Doe v. Moe, 63 Mass. App. Ct. 516, 827 N.E.2d 240 (2005).

The plaintiff and the defendant were in a long-term committed relationship. Early in the morning of September 24, 1994, they were engaged in consensual sexual intercourse. The plaintiff was lying on his back while the defendant was on top of him. The defendant’s body was secured in this position by the interlocking of her legs and the plaintiff’s legs. At some point, the defendant unilaterally decided to unlock her legs and place her feet on either side of the plaintiff’s abdomen for the purpose of increasing her stimulation. When the defendant changed her position, she did not think about the possibility of injury to the plaintiff. Shortly after taking this new position, the defendant landed awkwardly on the plaintiff, thereby causing him to suffer a penile fracture.

Although this was generally a position the couple had used before without incident, the defendant did vary slightly the position previously used, without prior specific discussion and without the explicit prior consent of the plaintiff. It is this variation that the plaintiff claims caused his injury. While the couple had practiced what the defendant described as “light bondage” during their intimate relations, there was no evidence of “light bondage” on this occasion. The plaintiff’s injuries were serious and required emergency surgery. He has endured a painful and lengthy recovery. He has suffered from sexual dysfunction that neither medication nor counseling have been able to treat effectively. (Op. at 518)

In that case, the plaintiff wanted the court to use simple negligence theory. Was there a duty? Was it breached? Was the breach the cause of the plaintiff’s damages? But, the Supreme Judicial Court Court of Appeals of my beloved Commonwealth of Massachusetts just couldn’t stomach the thought of negligent fucking cases spewing all over the courts. The court determined that… well, deciding what was “reasonable care” in bed is just not something they wanted any Massachusetts court to get into.

We must determine whether the application of a standard of reasonable care to private consensual sexual conduct is appropriate or even workable. Questions of fact that would arise from these circumstances must be susceptible to consideration by a fact finder without prejudice and in a spirit of impartiality. Addressing a like issue in a different context, the Supreme Judicial Court recognized that “in light of our own awareness that community values on the subject of permissible sexual conduct no longer are as monolithic” as prior precedent had suggested, it could no longer apply the statutory prohibition of G. L. c. 272, § 35, against “unnatural and lascivious” acts to private, consensual adult sexual conduct. Commonwealth v. Balthazar, 366 Mass. 298 , 302 (1974). [Note 4] There are no comprehensive legal rules to regulate consensual sexual behavior, and there are no commonly accepted customs or values that determine parameters for the intensely private and widely diverse forms of such behavior. [Note 5] In the absence of a consensus of community values or customs defining normal consensual sexual conduct, a jury or judge cannot be expected to resolve a claim that certain consensual sexual conduct is undertaken without reasonable care. (Op. at 520-521)

Accordingly, at least in the Commonwealth of Massachusetts, a broken dick case (or any other sex injury case) is going to turn on whether the defendant’s conduct was wanton or reckless, not just negligent.

In the case at hand, I think the injury happened in New York, so who knows what the law is there. I didn’t find any broken dick cases in New York case law. Since Massachusetts is way more fucking awesome than New York, they would probably just follow Mass law on this one.

With respect to Bethany Benz, hopefully this incident will not have an impact on her reverse cowgirl, which I have heard from several people is incredible.

Yahshua, on behalf of all men, everywhere, who have ever lived or who ever will live — get well soon.

We’re all pulling for you.

Beyond Garcetti: Public employees and the Pickering-Connick test

June 28, 2010

By J. DeVoy

I’ve previously written about the landmark public employee speech case Garcetti v. Ceballos, 547 U.S. 410 (2006), which provides a threshold inquiry as to whether state actors may punish employees for their speech.  Generally, speech made pursuant to employees’ work duties is not protected, while private speech is.  Among the Federal Courts of Appeals, there is growing dissension as to how fact-intensive this inquiry should be.  If, however, an employee is not speaking as a public official, another test is applied: The Pickering-Connick balancing test.

Public employees’ political speech is protected by the First Amendment’s guarantee of free speech, but this is not an unlimited right.  Public employees may be subject to discipline prescribed in the relevant collective bargaining agreement for private speech and even expression about matters of public concern, particularly if made in a disruptive manner.  See generally Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Bd. of Educ., 391 U.S. 563 (1968).  In Pickering, the Supreme Court held that controversial and factually inaccurate statements made by a teacher could not be the basis for his dismissal because they were a matter of public concern and did not outweigh the government’s interest in effective administration.  391 U.S. at 574-75.  Although the means for determining whether speech is of public concern are not clearly established by the court, it is clear that speech of a public concern is protected by the First Amendment and cannot be the basis for adverse employment action where the government does not reasonably believe it jeopardizes the imposition of discipline and its efficient administration. Id.  As the speech that the court found to be of public concern in both Connick and Pickering related to political issues, there is a relationship between speech’s political content and the public’s interest in it.  462 U.S. at 154; 391 U.S. at 574-75.

In Pickering, the public concern at issue was the raising, collection and allocation of school taxes, a political matter affecting the entire community. Id. at 571.  The manner in which it was raised did not disrupt government operations, undermine supervisory discipline, or otherwise affect workplace harmony; if it had to an extent that outweighed the public’s interest in the speech, the First Amendment would not protect it. Id. at 569-70, 574-75.  The factors for determining whether a statement is a matter of public concern-its “content, form and context, as revealed by the whole record”-are established in Pickering’s successor case, Connick. 461 U.S. at 147-48.  In that case, the questionnaire circulated by Myers had some extremely limited public concern based on its content, form and context, as it related to employment abuses in an ongoing political race, but was not protected because her supervisor reasonably believed it undermined his disciplinary authority and jeopardized office harmony because of the personal attacks it contained. Id. at 153-54.

Combined, these cases comprise the Pickering-Connick test.  When a public employee makes a statement, its content, form and context is examined in the totality of the record to determine if it is a matter of public concern, and the employee’s expression cannot be reasonably believed to cause harm to workplace harmony, discipline or operations.  Because of the many forms employee speech and matters of public concern may take, the Supreme Court did not deem it appropriate or feasible to promulgate a general standard by which all statements are judged.  Id. at 154, citing Pickering, 391 U.S. at 569.

Even if public employees’ statements thread the narrow Garcetti needle and constitute private speech, the Pickering-Connick test must still be overcome for the statements to have First Amendment protection.  This is an imprecise, fact-intensive standard that leads to cases being decided individually.  Though this approach is ideal for employees, as it gives each instance of speech the potential to be spared from employer discipline, it has unpredictable results – especially when the speech and circumstances at issue are dissimilar from other cases.  Indeed, each workplace and its chain of command are unique, and the disruptive effects of speech may vary greatly from one circumstance to another.

The Pickering-Connick standard is also sympathetic to public employers, as speech is protected if it is of a public concern and not reasonably believed by the employer to jeopardize the imposition of discipline and the employer’s efficient administration.  Therefore, if the court find that the employer reasonably believed the speech compromised these goals, the employee’s speech is not protected by the First Amendment, and he or she is subject to appropriate discipline.  This yields a balancing act between the public significance of the speech, how it was made, and the reasonableness of the public employer’s belief.  Employees are protected by the test’s requirement for employer beliefs to be reasonable, but this falls short of a full guarantee of constitutionally protected speech, as the employer retains discretion to punish employees for speech it reasonably believes threatens workplace order and efficacy.

Refining the contours of the First Amendment in public sector unions – Davenport v. Washington Education Association

June 21, 2010

By J. DeVoy

In 2007, the United States Supreme Court upheld a Washington law requiring public sector union members to opt-in for their association dues to be used by the union for election-related activities and speech. Davenport v. Wash. Educ. Ass’n, 551 U.S. 177 (2007).  Without this mandated opt-in, the public union was prohibited from devoting a member’s fees to any electoral purpose. Id. at 190.  The court limited its holding to public sector unions, although the text of the statute could facially be applied to both public and private unions. Id.

Since private-sector unions collect agency fees through contractually required action taken by private employers rather than by government agencies, Washington’s regulation of those private arrangements presents a somewhat different constitutional question. Id.

This portion of the holding reinforces the unique role of public sector unions, especially when balancing constitutional concerns.  Because public unions are governed by the state and their employees act with the government’s imprimatur, their actions are within the reaches of the United States Constitution and Bill of Rights. See Id.

I. Private Sector Precedent

Precedent from disputes between private unions and their members indicates that this is not a universal proposition: union members are not given a unilateral veto over union expenditures and activities because they disagree with their money being spent in a certain fashion.  In Communications Workers v. Beck, 487 U.S. 735, 762-63 (1988), the Supreme Court authorized the union to spend dues money pursuant to its obligations as a bargaining representative over a represented non-member’s objection.  Expenditures were only authorized over objection for that purpose, though, and could not be made for the union’s political goals. Id.

Similarly, in Ellis v. Brotherhood of Railway Clerks, 466 U.S. 435, 450-51 (1984), the Supreme Court held that expenses for materials reporting on the union’s activities as representatives’ exclusive bargaining representatives can be paid with the dues of nonmembers despite their objection.  The court specifically struck down the rebate mechanism used by the union in Ellis, which provided that the union would repay represented non-members who objected to a union political expense their share of the total expense. Id. at 443.  Though the Ellis court considered the potential for anticipatory dues reductions for represented nonmembers, or holding dues in escrow, it ultimately provided no conclusive guidance on those provisions’ legality, finding it sufficient to strike down the union’s rebate provision. Id.

II. Into the Public Sector

This trend came to a head in Abood v. Detroit Board of Education, 431 U.S. 209 (1977),  where the Supreme Court prohibited the public union’s use of nonmember fees for purposes outside of collective bargaining, contract administration and grievance adjustment – even when alternative uses were not strictly political.  Abood is remarkable for extending the Beck and Ellis decisions to public unions.  While the prior decisions concerned private unions, the Supreme Court found the principles within those opinions applied identically to public sector unions; the role of the government in the unions’ representation and their members’ employment was immaterial in such situations.

The Abood decision was further solidified in Chicago Teachers Union v. Hudson, 475 U.S. 292, 306-08 (1986).  In Hudson, the union controlled the entire process of collecting, administering and reducing members’ agency fees, despite being an interested party at every step of that transaction. Id. at 308.  The court found that there were inadequate protections where the union did not disclose its expenditures for collective bargaining purposes, but instead revealed only the amount it had spent on purposes that did not benefit “dissenting nonmembers.” Id. at 306-07.

Although the union discounted nonmembers’ annual dues by 5%, the court found there was no adequate explanation for doing so, and thus such a reduction did not pass constitutional muster. Id. at 307.  Indeed, the 95% of agency fees still paid by nonmembers may have gone to speech they opposed and did not authorize.  The Supreme Court ultimately established three requirements for public unions’ collection of agency fees:

-The union must provide an adequate explanation of the basis for the fee

-The union must provide a reasonably prompt opportunity to challenge the amount of the fee before an impartial decision-maker, and

-The union must have an escrow for the amounts reasonably in dispute while such challenges are pending. Id. at 310.

The “adequate explanation” required by Hudson is commonly referred to as a “Hudson packet.”  Davenport, 551 U.S. at 177.  It must be supplied to all nonmembers represented by the union and, under Washington’s law, was supplied biannually to nonmembers represented by a public union. Id.

An important distinction between union purposes arises from these holdings.  While there is a First Amendment issue where unions spend represented nonmembers’ dues on political purposes over their objections, these same represented nonmembers have no First Amendment interest in the union’s operation as a contract administrator and collective bargaining agent.  As noted in Abood, this distinction arises in the public union context because involuntary political support through money may “interfere in some way with an employee’s freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit.” 431 U.S. at 222.

Fortified in Hudson, this position coalesced into the three requirements set forth by the Supreme Court.  By requiring information explaining agency fees’ bases to be sent to all represented employees, the Supreme Court ensured that the represented would be apprised of how their dues were spent – especially on political matters, to which nonmembers could object.  The additional requirements, of a challenge to the fee before an independent decision-maker and escrow for funds in dispute, further protected the First Amendment rights of nonmembers.  The first of these provisions, requiring objections be heard before an impartial decision-maker, upheld the due process rights of nonmembers in exercising their First Amendment rights, assuring that their will would not be thwarted by union control.  The second assures that neither represented nonmembers’ dues nor interest on them can be applied toward political aims – speech, ultimately – with which the represented non-member disagrees.

III. How Davenport Was Decided

These provisions are found in the Washington statute at issue in Davenport.  By requiring represented non-members to opt-in to political spending within unions, and acting in concert with provisions for information about fees to be distributed and amounts in dispute being held in escrow, the protections the Supreme Court previously established were preserved by the statute.

From a policy perspective, opt-in is more favorable to represented non-members who may otherwise object to a union’s political spending.  Under this regime, their political autonomy is presumed, though they can assent to the union’s political speech and financially contribute to it.  In contrast, the de facto opt-out system established in prior case law benefits unions, as represented non-members must object to the use of their funds for the union’s political goals.  Although the Supreme Court has ratified this practice as valid with some qualifications, it places the burden of seeking political autonomy on the represented non-member.  Even if these non-members have no interest in politics, the presumed contribution of agency fees effectively takes money out of their pockets that otherwise would not have gone to political speech or association.

Colorado Supreme Court strikes down constitutional amendment limiting public employees’ speech

June 16, 2010

By J. DeVoy

Some states have enacted laws and even constitutional provisions that affect public sector labor unions’ political speech and participation.  In Colorado, for example, the state’s constitution was amended to ban political contributions and their inducement by public unions.

Because of a presumption of impropriety between contributions to any campaign and sole source government contracts, contract holders shall contractually agree, for the duration of the contract and for two years thereafter, to cease making, causing to be made, or inducing by any means, a contribution, directly or indirectly, on behalf of the contract holder or on behalf of his or her immediate family member and for the benefit of any political party or for the benefit of any candidate for any elected office of the state or any of its political subdivisions. Colo. Const. Am. 54 § 15.

 The Amendment specifies public sector labor unions as holders of no-bid state contracts in Section 17, subheading 4.5.  In addition to proscribing the union’s ability to make donations on its own, it precludes its members from mobilizing to seek donations from others – a hallmark benefit of winning a union’s political support – due to the “causing to be made, or inducing” language in Section 15 of the amendment.

The Colorado Supreme Court recently considered the constitutionality of this amendment in Dallman v. Ritter, No. 09SA224,  ___ P.3d ___ (Colo. Feb. 22, 2010), available at http://www.altshulerberzon.com/docs/support_files/Amendment54COSCtDecision.pdf (last accessed May 12, 2010).  The case, first brought by members of a teachers union, resulted in a preliminary injunction against the Amendment’s enforcement at the trial level.  Id. at 16.  In the court’s opinion, the justices found the amendment so vague and overbroad that the court nullified it in its entirety. Id. at 4.  A substantial portion of the Dallman court’s analysis was based on Buckley, 424 U.S. 1, which allows public labor unions to “participate in political speech, specifically through political contributions.” No. 09SA224 at 49, citing Colo. Educ. Ass’n v. Rust, 184 P.3d 65, 76 (Colo. 2008).  While the thrust of Buckley is found in the decision, its application would be mismatched, as Buckley related to contribution limits while Amendment 54 banned them altogether. Dallman, No. 09SA224 at 51-52.  Indeed, the regime at issue in Dallman was even more restrictive than that in Buckley v. Valleo, 424 U.S. 1 (1976).

The Colorado Supreme Court drew several legal distinctions leading to the nullification of Amendment 54.  First, the amendment completely denied the public unions’ ability to make any donations, which is impermissible under Buckley; the amendment went too far in prohibiting all contributions in light of its stated purpose of targeting “large, potentially corruptive contributions.” Dallman, No. 09SA224 at 51-52.  Second, Amendment 54 prohibited unions from acting through a political action committee or other means, effectively shutting out not only their direct participation, but their influence as well, from the political arena. Id. at 52-53.   This, too, was contrary to Buckley for denying unions any political voice, and therefore contrary to the First Amendment. Id.  Finally, the court found it absurd that a provision intended to avoid the appearance of impropriety would apply to dealings with a labor union, as the state does not and cannot select the union with which it contracts. Id. at 53.  The court further found that collective bargaining agreements are so disparate from traditional procurement contracts that it would be unseemly for Amendment 54 to treat them identically, compromising the unions’ First Amendment rights. Id at 54.

Considering these factors, the Colorado Supreme Court found that Amendment 54 was not a valid limitation on unions’ First Amendment rights.  The amendment was not drawn closely enough to address only the problem of corruptive contribution without trammeling other forms of protected speech. Id at 53.  Additionally, the amendment did not have a sufficiently important government interest to warrant limiting the political speech of public unions. Id. at 54.

The outcome of this decision reveals that public unions’ speech cannot be fully silenced, although limits may be placed upon it.  The Colorado court relied on the Supreme Court’s jurisprudence, especially Buckley, to find that it was contrary to public unions’ First Amendment rights to deprive them of any speech in the political forum.  While the Colorado Supreme Court does not come out and say it, though, it may be receptive to minimal restrictions like those at issue in Buckley, as the Dallman court routinely referred back to that case.  To be consistent with Buckley and pass constitutional muster, though, any restrictions would have to be narrowly tailored to further a compelling state interest, consistent with strict scrutiny review. 424 U.S. at 64.  But as evinced by the Dallman decision, a blanket prohibition on political participation by a public union, even on grounds that could warrant the limitation of other groups’ speech, is inconsistent with the First Amendment and therefore unconstitutional.

Largest. Class. Action. Ever.

April 27, 2010

Yesterday the Ninth Circuit upheld (mostly) a California District Court opinion certifying a nationwide class action against retail giant Wal-Mart. The classes and sub-classes could encompass as many as 1.5 million current and former female employees of Wal-Mart, who may be entitled to billions in back wages and punitive damages. Not to mention the attorney’s fees and costs.

The case was filed in 2001 by The Impact Fund, a Bay Area non-profit organization that takes on large scale civil rights related litigation. The lawsuit alleges that Wal-Mart pays female employees less than their male counterparts (in violation of equal pay laws), and promotes women more slowly than men (in violation of Title VII).

What’s so interesting about this behemoth 137 page decision? Not a lot unless you’re an attorney who practices class action law. But the decision does represent a clear acknowledgement on the part of the judiciary that just because you’re an astonishingly gigantic and absurdly wealthy company doesn’t mean that you can’t be called to court to account on a wholesale basis for your (alleged) bad deeds. At least if you’re sued in the Ninth.  Without question, Wal-Mart will be looking to the Supremes for a reversal.

Garcetti v. Ceballos potentially subsumes public employees’ First Amendment rights

March 30, 2010

By J. DeVoy

Public employees in political jobs often walk a difficult line when they speak about current affairs.  Historically, this speech was protected by the Pickering-Connick test, established in Pickering v. Board of Education of Township High School District, 391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983).  Under that test, courts engaged in a two-step inquiry: First, whether the employee’s speech was a matter of public concern based on its content, form and context, and Second, if the speech was a matter of public concern, if the public employer had an adequate justification for treating the employee differently from any other member of the general public.

In 2006, the United States Supreme Court added a new threshold inquiry to this analysis.  In Garcetti v. Ceballos, 547 U.S. 410 (2006), a five-justice majority held that a prosecutor who criticized the circumstances under which a warrant was issued made his statements as a public employee.  As a consequence, the Supreme Court found that his statements were not protected by the First Amendment, and his civil liberties were not violated when the office passed him over for a promotion as a consequence of them.

At the time of this decision, there was considerable concern that this would limit the free speech of government employees.  In Kennedy’s majority opinion, the court addressed this concern, which Souter raised in his dissent.  The majority found it very unlikely that public entities would create positions with excessively broad job descriptions that would effectively muzzle employees.  The court noted that an employee’s actual responsibilities were at issue, which could depart significantly from his or her job description; a task’s mere inclusion in a job description is “neither necessary nor sufficient” to show it was entailed in the employee’s actual job duties.

A Different Problem Arises

While the issue of overbroad job descriptions has not come to pass, a new problem may be brewing in the circuit courts.  There seems to be wide discrepancy in how Garcetti has been applied to subsequent cases, emanating from the Fifth Circuit.  While the Supreme Court engaged in a probing analysis of public employees’ job duties, the Fifth Circuit has taken a more mechanistic view of this inquiry, and repeatedly held that statements relevant to job duties are made as state employees, rather than as private citizens.

In Davis v. McKinney, 518 F.3d 304 (5th Cir. 2008), the Circuit Court held that the defendant’s statements about the University of Texas Health Science Center in Houston’s inadequate response to a child pornography investigation were statements made as an employee because they related to her job duties.  In particular, the court stated:

Activities undertaken in the course of performing one’s job are activities pursuant to official duties and not entitled to First Amendment protection.

Davis, 518 F.3d at 313.  The defendant’s statements about the pay for vice presidents in the Health Science Center, statements to the FBI about child pornography on the computers and general concerns about racial discrimination by the Health Science Center were held to be speech made as a private citizen.

Similarly, in Charles v. Grief, 522 F.3d 508 (5th Cir. 2008), a systems analyst’s complaints about racial discrimination in the Texas Lottery Commission were held to be made as a private citizen.  Although this discrimination arose in the course of Charles’s employment, addressing racial equality was not within the purview of his duties as an analyst.  Therefore his statements were made as a private citizen and afforded certain First Amendment protections by the court.

Not every statement made by these employees was snared in a net preventing free speech, but the Fifth Circuit did not analyze the statements it found to be made as public employees beyond acknowledging that they related to work duties.  These statements may have significant value and otherwise be protected under the Pickering-Connick test, but cannot even reach that point.  Simply because the statements relate to work duties, the Fifth Circuit considers them to be statements made within the scope of public employment, rather than speech by a private citizen.

Other Circuits have engaged in more aggressive inquiries about when a speaker makes statements pursuant to their official duties, rather than whether or not the statements were related to their job duties.  Just because an individual makes a statement related to his or her job and the duties within it does not mean he or she is speaking pursuant to those duties.  In Bivens v. Trent, 592 F.3d 555 (7th Cir. 2010), the Seventh Circuit addressed this very concern and acknowledged the ambiguity surrounding statements relating to job duties made to third parties, but held that reports to supervisors, required as part of Bivens’ job duties, were made pursuant to them.  In Fuerst v. Clarke, 454 F.3d 770 (7th Cir. 2006) the Seventh Circuit declined to find a sheriff’s statements, though relating to his job duties, were made pursuant to them when he spoke in his capacity as a union representative.

Implications for Public Employees

Though the doomsday scenario prophesied by the Garcetti dissents has not come to pass, the Fifth Circuit’s jurisprudence paints a bleak picture of the future for other reasons.  The language of the Davis opinion, quoted above, “activities undertaken in the course of performing one’s job are activities pursuant to official duties and not entitled to First Amendment protection,” misses the point of Garcetti and does not square with the holdings of other jurisdictions, such as the Seventh Circuit.

Actions undertaken in the course of performing job duties are distinct from activities arising pursuant to official duties.  As the Seventh Circuit has read the law, speech made pursuant to job duties is essentially required by it.  This is not the case for speech made during the performance of job duties, which case law shows can be quite broad – especially in the case of policy-setting positions, where political statements and criticism can easily relate back to the speaker’s job duties and be denied First Amendment protection.

Therefore, there is a need to more clearly delineate between speech made relating to job duties and pursuant to them.  If the two are treated the same, as is the case in the Fifth Circuit, then virtually all criticism and communication about one’s job will be silenced.  There will be no need for the Pickering-Connick test under this regime, as those who talk frankly about their job duties will never be able to reach it and prove the public import of their speech.

This is a problem for many reasons.  First, it stifles individual freedom of expression.  Second, it interferes with the ability of government employees to identify what’s wrong in their line of work, potentially improving government operations for all and ensuring that finite tax dollars are better allocated.  This is a serious issue for public employees who wish to freely discuss things related to their job duties – but not pursuant to them – in an effort to seek advice or share information here or on racier websites, such as JDUnderground or AutoAdmit.

If all such instances of speech are considered part of the speaker’s work duties, employees will be left with an unenviable decision: speak freely and risk employer retaliation, or say nothing and suffer in silence.  Beyond the constitutional expectations of free speech that we all enjoy, preserving First Amendment protections for such speech helps those who best know how to improve public employers’ efficiency and efficacy to be heard.

H/T: Andrew Rima, my brilliant moot court partner, who helped me wade through this issue for the 2009 National First Amendment Moot Court Competition.

Hiring a Legal Asistant 101

October 27, 2009

"Do you really think that I'm perfect for the job?"

Helpful hints for finding and hiring a legal assistant:

  • Make sure you use an online listing service.  Craigslist is always a good one.
  • Always do a good job of describing what you’re looking for.  Use explicit language, whenever possible.  For example, stating that you are seeking an “energetic woman” for “general secretarial work, some paralegal work and additional duties for two lawyers” seems to be a winner.
  • Next, in addition to a resume, be sure to ask for some personal information, such as photographs and “a description of your physical features, including measurements.”
  • When you receive applications, always follow up with an email, including more information about what the position entails.  Here’s a great example of the kind of thing you should write:

    In addition to the legal work, you would be required to have sexual interaction with me and my partner, sometimes together sometimes separate.  This part of the job would require sexy dressing and flirtatious interaction with me and my partner, as well as sexual interaction.

  • To be sure that everyone understands what is expected, you will want to make performing sexually a part of the interview process.


H/T Becky

…and after you’ve hired your dream assistant, here‘s some advice on keeping her.


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