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Home > Blog > All > Administrative law

Administrative law

  • June 21, 2012

    Literalism Wins, Except When it Doesn’t: 'Christopher v. SmithKline Beecham'

    Guest Post

    By Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service, George Washington University Law School. The writer did an unpaid moot court for plaintiffs’ counsel in the case discussed in this essay.

    In Christopher v. SmithKline Beecham (No. 11-204, decided June 18, 2012), the Supreme Court had to decide whether individual plaintiffs who were detailers for drug companies were exempt from the overtime provisions of the Fair Labor Standards Act (FLSA), which do not apply to workers employed “in the capacity of outside salesmen.” The relevant facts were undisputed and also appear to be unique to this industry. There is an interesting administrative law issue relating to whether the interpretation of the Department of Labor, which enforces the FLSA, should be given deference, but what caught my eye was the battle between the literalists and the pragmatists and how it came out in this case.

    The job of a drug detailer is to persuade doctors to prescribe the prescription drugs sold by their company to their patients in appropriate situations. By law, those drugs can only be purchased from a licensed pharmacy, with a doctor’s prescription, and the actual sales of the drugs are made by the manufacturer (the employer of the detailer) to the pharmacy, but never to a doctor or a patient directly. Detailers are paid good salaries, plus a modest bonus that is loosely determined by the sales of the drugs in their territory. The individual plaintiffs earned in excess of $70,000 per year and the industry average is above $90,000.  They regularly work between 10-20 hours a week above the 40 hours, after which they would be entitled to overtime. Their work is almost always out of the office, and no one supervises them on a daily basis.

    The issue the Court had to decide was whether these plaintiffs (and nearly 90,000 others in the industry who work in virtually identical arrangements) are exempt from the overtime law because they are outside salesmen. At stake was potentially millions of dollars in unpaid overtime for whatever period was not barred by the statute of limitations. The companies could probably restructure their pay systems in the future to minimize the impact, by reducing salaries or bonuses to offset any anticipated overtime, but they would prefer not to have to do that.

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    Tags:
    Administrative law, Supreme Court, Economic, Workplace and Environment Regulation, Alan Morrison, Christopher v. SmithKline Beecham, drug detailer, Fair Labbor Standards Act, FLSA, Guest Post, overtime
  • June 5, 2012

    Terrence Flynn Resigns from the NLRB: A Cautionary Tale

    Guest Post

    By Wilson Abney, an attorney and consultant who has advised federal agencies and Congress on government ethics, including as chief counsel to the Senate Ethics Committee and as an attorney for the U.S. Commerce Department and the Consumer Financial Protection Bureau.

    The National Labor Relations Board has jurisdiction over union organizing drives, elections, and labor-management relations in the private sector. NLRB members are appointed by the President and confirmed by the Senate. On January 9, 2012, pursuant to a recess appointment by President Obama, Terrence Flynn was sworn in as a Member of the NLRB. On May 25, Mr. Flynn submitted his letter of resignation effective July 24. Mr. Flynn’s resignation follows two reports issued by the NLRB’s Inspector General (IG) criticizing conduct he engaged in as an attorney on the staff of NLRB member Brian Hayes.  

    Mr. Flynn began working at the NLRB in 2003 as Chief Counsel to Republican NLRB member Peter Schaumber. When Mr. Schaumber left the NLRB, Mr. Flynn joined the staff of Republican NLRB member Brian Hayes.

    According to the IG’s reports, in 2010 and 2011, during his tenure with Mr. Hayes, Mr. Flynn leaked to Mr. Schaumber (who at the time was co-chair of presidential candidate Mitt Romney’s labor advisory committee) and Peter Kirsanow, another former Republican NLRB member (who was serving as outside counsel to the National Association of Manufacturers) confidential information including drafts of NLRB decisions as well as materials constituting NLRB internal deliberations. In addition to Mr. Flynn’s unauthorized disclosure of confidential information received in the course of his official duties, the IG concluded that Mr. Flynn had secretly helped Mr. Schaumber prepare a newspaper opinion piece attacking an NLRB decision characterized as pro union.

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    Tags:
    Administrative law, Labor law, Economic, Workplace and Environment Regulation, government ethics, Guest Post, National Labor Relations Board, NLRB
  • May 14, 2012

    Fair Housing Organizations Maintain Critical Role in Enforcing the Fair Housing Act

    Guest Post

    By Melissa Rothstein, deputy director of the Equal Rights Center, and Megan K. Whyte, director of the Fair Housing Project at the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. This is cross-posted at The Equal Rights Center’s blog.

    Fair Housing Month recently ended, and for most it was an opportunity to celebrate our country’s commitment to equal opportunity in housing for all people. Unfortunately, for some, it was instead another occasion for attacks on the crucial efforts to ensure enforcement of our country’s fair housing laws.

    In one such example, Congress launched an investigation into why the City of St. Paul withdrew an appeal in the Supreme Court that had the potential to eviscerate the validity of disparate impact challenges under the Fair Housing Act (FHA), despite the rulings of eleven federal circuit courts of appeal that uniformly held that disparate impact claims are cognizable under the FHA. In another example, Republican presidential candidate Mitt Romney suggested that, if elected president, he would consider disbanding the Department of Housing and Urban Development (HUD), an agency for which his father once served as Secretary.

    These actions come on the heels of a disturbing trend by federal courts of imposing additional hurdles on fair housing plaintiffs. Even in the face of efforts to make it more difficult for plaintiffs to enforce their statutory rights, the continuing role of fair housing organizations in enforcing the provisions of the FHA cannot be overstated. Private fair housing organizations and other civil rights groups investigate two out of every three fair housing complaints filed across the country – and their ability to enforce fair housing violations is critical to the promise of equal housing opportunity for all. These organizations are able to conduct investigations efficiently and effectively with little of the bureaucracy and overhead costs that may be associated with governmental agencies, and to gain the trust of disenfranchised community members who may not feel comfortable lodging a complaint with a government entity. 

    Officials at HUD and DOJ – the federal agencies with authority to enforce the FHA – recognize the importance and value of private enforcement, as they lack the resources to effectively enforce the FHA on their own. As detailed in our recent American Constitution Society Issue Brief, Congress intended for private enforcement to be a key component of ensuring FHA compliance, and the 1988 FHA amendments were largely intended to amend the law’s enforcement mechanism so that, in Senator Kennedy’s words, it would no longer be “a toothless tiger.”  

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    Tags:
    Administrative law, Civil rights, Other courts, Constitutional Interpretation and Change, Economic, Workplace and Environment Regulation, Equality and Liberty, fair housing, Fair Housing Act, Guest Post
  • May 10, 2012

    EEOC Affirms Expanded Definition of Sex Discrimination

    Guest Post

    By Lisa Mottet, Transgender Civil Rights Project Director for the National Gay and Lesbian Task Force

    Though garnering less attention than North Carolina's disheartening constitutional amendment to ban same-sex marriage and President Obama's monumental announcement to support same-sex marriage, another recent piece of lesbian, gay, bisexual and transgender (LGBT) news deserves significant attention.

    In what is accurately hailed as a game-changing decision for the LGBT community, the Equal Employment Opportunity Commission ruled in April (Macy v. Holder) that transgender people are protected by Title VII’s prohibition on sex discrimination in the workplace.

    The precedential decision involved Mia Macy, a transgender woman represented by Transgender Law Center who was all but officially hired by the Bureau of Alcohol, Tobacco and Firearms (ATF) when, after she told them she is transgender, she was told the position had been cut due to funding. ATF actually hired someone else and Mia lost her home as a result of the lost job opportunity.

    When ATF discriminated against Mia she became part of the horrifying statistics on employment discrimination faced by transgender people. According to the National Transgender Discrimination Survey: 26 percent lost a job for being transgender; 50 percent were harassed at work; and many others face humiliation, have their privacy breached, and are denied access to appropriate restrooms. Overall, 78 percent have experienced mistreatment, harassment, or discrimination on the job.

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    Tags:
    Administrative law, Civil rights, Other courts, LGBT issues, Constitutional Interpretation and Change, Economic, Workplace and Environment Regulation, Equality and Liberty, EEOC, Employment Discrimination, Employment Non-Discrimination Act, Equal Employment Opportunity Commission, Guest Post, Title VII, transgender
  • May 9, 2012

    EEOC Guidance Critical to Equitable Employment Opportunities for Racial Minorities

    Guest Post

    By Ray McClain, Director of the Employment Discrimination Project at the Lawyers’ Committee for Civil Rights Under Law

    In late April, the Equal Employment Opportunity Commission (EEOC), under the leadership of Chair Jackie Berrien, approved updated Enforcement Guidance on Consideration of Arrest and Conviction Records by employers. The Guidance analyzes clearly and comprehensively the restrictions that Title VII places on an employer’s use of any employment screen that has the intent or effect of excluding minority workers disproportionately from being hired or retained by the employer.  

    This post addresses the broader significance of the EEOC’s updated Guidance and the additional actions that are likely to be necessary to persuade employers that the Commission’s action is not merely symbolic, but requires employers to change their practices.

    Significance of the Guidance

    Pundits try to persuade the White public that we live in a “post-racial America” because President Obama is of mixed descent – Black African and White American. Both the Guidance and the Commissioners in their remarks prior to the vote laid out a few of the many statistics that starkly demonstrate that America today is anything but “post-racial”; the Guidance recounted that:

    African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population.  Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men.

    Virtually all public employers and 80 percent of private employers check all new applicants for employment to see whether they have records of recent arrests or criminal convictions. Over 90 percent check on at least some applicants. From the EEOC’s statistics, it is clear that the practice of so many employers in excluding ex-offenders from equal consideration in hiring takes a heavy toll on minority workers, especially African Americans, and helps to keep African American unemployment at consistently twice the rate of unemployment for white workers. 

    Depression-level rates of unemployment have plagued the African American community since early in the current recession. Unemployment for African American men has recently been as high as 18 percent of those seeking employment and about 25 percent when the numbers include African American men who would work if they thought they could find anyone to hire them. The rate has been 40 percent for African Americans 19 and younger.  

    The EEOC’s updating of Guidance on this critical issue can be a major step in opening many doors to jobs that for too long have been closed to many minority workers.

    What did the Guidance do?

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    Tags:
    Administrative law, Civil rights, Racial justice, Criminal Justice, Economic, Workplace and Environment Regulation, Equality and Liberty, EEOC, Equal Employment Opportunity Commission, Guest Post, Title VII
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