Some employers try to avoid the overtime requirements of the Fair Labor Standards Act by claiming an hourly employee is a manager or simply that the employee is paid on a salary basis. In Kim v. Umami Grill & Sushi, LLC, No. H-18-850, 2019 U.S. List. LEXIS 31054 (S.D. Tex. 2/27/2019), the employer moved moved for summary judgment saying the plaintiff was a chef, and, therefore, an executive or professional who was paid on a salary basis. Umami also claimed the chef was management.

Kim, however, points out that according to several pay stubs, he was often paid significantly below his alleged salary amount. The employer was deducting pay for days which the chef missed for illness. The court noted the deductions. The judge said that deductions for a half day are permitted for absences. But, the employer was deducting full days when the chef was absent. There are exceptions under the FLSA for situations in which full day deductions are permitted, but the employer offered no such explanation. So, the court said there were genuine issues of material fact and summary judgment, was not, therefore, appropriate. See the decision here.

Clients sometimes come to my office, convinced they have an unassailable lawsuit. They cannot lose. They are certain they have the best evidence. But, in litigation, nothing is ever certain. In the case of Knepper v. Ogletree Deakins, Nash. Smoak & Stewart, P.C., No. 19-CV-0060 (C.D. Calif.), much has gone wrong. Dawn Knepper, who practiced here in San Antonio before she moved to Orange County, California, sued her employer, Ogletree Deakins for gender bias. The Plaintiff alleged violations of the Equal pay Act. She filed her suit in 2018.

In March, 2019, the California court ruled that Ms. Knepper must pursue her claims in arbitration. She had apparently not opted out of a firm-wide arbitration agreement. Ms. Knepper testified that she did not recall any such email asking her to either sign the arbitration agreement or to opt out. The former employer presented evidence indicating that she did receive the emails sent to all Ogletree Deakins employees. The 2016 emails was sent to all staff. In 2014, the law firm had started a similar arbitration program for equity shareholders. Of course, the firm described the program as an “Open Door Policy and Mutual Arbitration Agreement.”

There was evidence of an email from Ms. Knepper in 2016 saying she would turn in her form tomorrow. But, in 2019, she had no recollection of that email. Dawn Knepper was intended to be the class representative for a class action lawsuit against the Ogletree law firm.

The lawsuit was originally filed in the Northern District of California. But, based on those arbitration agreements, the employer sought a transfer to the Central District of California. The Plaintiff then tried to amend the claims, so as to strengthen the venue in northern California. At that point, Ogletree said if Knepper has a binding arbitral agreement, then amendment would be futile. See Bloomberg news report.

Later, the plaintiff tried to add three other female plaintiffs, based in Colorado and Texas. But, on July 30, the Central District dismiss those claims with prejudice and allowed the three women to withdraw their intervention in the Knepper lawsuit. Those three women then filed a separate class action lawsuit in California state district court in January, 2019. See ABA Bar Journal news report.

Yes, amigos, lawsuits can go wrong in a variety of ways. And, these were the experts. Dawn Knepper, like the Ogletree form itself, are employment law specialists. One notable allegation in the new lawsuit:

“On information and belief, when a female shareholder asked the Managing Shareholder of the Firm, Defendant Matt Keen, about the Firm’s response to gender discrimination complaints made by female employees, he explained: “we’re not real good at practicing what we preach.”

If true, that does not bode well for the employer.

In the military, it is has always ben understood that discipline is critical. But, what does that mean in actual practice? Proper discipline starts with the small things. Commanders eat last. Officers do not leave the bivouac area to go into town for a shower and a nice meal. Those small things matter. They create a climate in which the rules are observed and in which enlisted soldiers see value in following the rules.

When I deployed to Iraq in 2005, we replaced a civil affairs battalion headquarters that was completely ineffective. The staff members had all sorts of ongoing feuds among themselves. They had so many IG investigations, so many EEO complaints filed. For the two weeks we had to spend with those men and women, I found them to be completely unprofessional and petty. Not surprisingly, they were said to be largely absent from the civil affairs battlefield in their corner of Iraq during their time in country. A critical military asset was absent for 12 months.

So, it is perhaps not surprising that the SEAL Team which admitted it posed with dead Taliban, a clear violation of the rules of war, contineus to have issues. Eddie Gallagher was acquitted of the charge of killing a wounded Taliban prisoner, but he was found guilty of using with dead Taliban. He could hardly be acquitted of that charge, since the pictures were admitted as evidence.

And, now that same SEAL Team was kicked out of Iraq due to drinking and possible rape at Fourth of July party. Drinking alchohol is forbidden in Iraq. We show respect for the Moslem faith by not drinking alcohol. SEAL Team 7, it was revealed at Gallagher’s trial, also drank in country. Other Team members posed with dead Taliban. These are clear violations of long-time general orders.  See Navy Times report.

Command relationships in Special Operations forces are complicated. They tend to operate on a first-name basis, despite different ranks. But, we must wonder if allowing alcohol, allowing picture of dead Taliban will not lead to more serious allegations, such as rape.

SEAL Team 7 was sent home from Iraq. That is a big deal. Being redeployed means the leadership has lost all faith in your abilities. You have become so unreliable that you are seen as more trouble than benefit to the war effort.

Yet, Special Operations teams are absolutely critical in a counter-insurgencies, like the war in Iraq. The Navy sent them home, because the team would not cooperate in an investigation of the rape and the drinking. It is a pretty flagrant breach of discipline, when sailors will not cooperate with an NCIS investigation. Military discipline can slip away so easily. I fully support killing Taliban fighters. But, mugging in front of the camera: officers and Non-Commissioned officers saw that and looked the other way. It is an appalling lack of discipline.

A major law firm, Pepper Hamilton, conducted an investigation into claims of rape and sexual assault by female students at Baylor University. In 2016, the law firm found fundamental flaws in how Baylor University handled these claims. Coaches were fired over the scandal that emerged. Now, some of those women have sued the university. In that lawsuit, the 15 plaintiffs argue that Pepper Hamilton created a report regarding their findings. Pepper Hamilton denies it created any such report. The plaintiffs want a copy of that report.

The judge hearing the case, Robert Pitman, noted that emails and time entries for the law firm indicates that it did create a final report. He set for hearing the matter regarding why the law firm should not be sanctioned. Emails, noted the judge, between law firm lawyers mention “drafts of the overall findings and recommendations” and the “narrative of findings and recommendations.” Certainly, if the lawyers discussed a final report, then there must be a final report somewhere.

The subpoena for for the report has been outstanding since 2017. The Pepper firm failed to respond to the 2018 motion to compel and violated a deadline of March 15 to submit objections. Judge Pitman had ordered the law firm to produce the materials by April 11. Instead, the firm submitted a motion for reconsideration. See ABA Bar Journal report here.

That hearing was then held on June 21. Judge Pitman sanctioned the Pepper Hamilton law firm at that hearing. The law firm, even though not a party to the lawsuit, will have to pay the attorney expenses for the plaintiffs’ lawyers. At the hearing, a Pepper Hamilton senior counsel said the references to a final report concerned attorney work product. The judge said if the plaintiffs wished to pursue the mater, they can file additional motions. See ABA Bar Journal report here.

I would like to know what sort of attorney work product need not be turned over to the 15 plaintiffs. I expect they have the same question.

The Equal Employment Opportunity Commission has the mission of investigating employment discrimination. They also educate employers and others about the nation’s discrimination laws. They issue guidance to employers (and employees) on what discrimination looks like. The EEOC actually issues some very good, well-supported legal guidance. See this site for excellent articles on every aspect of discrimination. Those articles are for lawyers. For the layperson, see this site for general guidance.

Regarding discrimination toward immigrants, there is this website. This site provides various examples of what discrimination against immigrants looks like. One of those examples addresses discrimination against person based on his/her national origin:

Examples of potentially unlawful conduct include insults, taunting, or ethnic epithets, such as making fun of a person’s foreign accent or comments like, “Go back to where you came from, ” whether made by supervisors or by co-workers.

Yes, that is the phrase Pres. Trump used in regard to four female members of Congress. He said they should go back to the countries from where they came if they do not like this country. It apparently did not matter to him that all four women are United States citizens. Yes, if we could couple the President’s remark to some Hispanic person he had recently fired, we would have a grade A discrimination lawsuit.

The Americans with Disabilities Act requires all businesses and governments to make their facilities accessible to persons with disabilities. That includes deaf persons. What do hearing impaired persons need to access your facility? Well, they might need an American Sign Language interpreter. If a hearing impaired person requests an ASL interpreter, every business and every government agency is required to provide one. Some 30 years have passed since the ADA was enacted in 1990. Yet, so many folks are not aware of this requirement.

But, now the San Antonio Independent School Distrist understands that requirement. They just settled a case for $150,00, in which they did not provide ASL interpreters on multiple occasions. Cleto Rodriguez is deaf. He requested an ASL interpreter several times for meetings with his son’s teachers. The district never did provide an interpreter. See San Antonio Express News report.

Some folks will tell me, “well, can’t we just write notes back and forth?” The ADA specifies that the hearing impaired person can choose how to communicate, not the service provider. Some deaf persons, especially for key meetings like Parent-Teacher conferences, prefer an actual ASL interpreter. The challenge is that ASL interpreters cost money. They also need to be reserved in advance.

Another challenge is that some hearing impaired persons make a request for an interpreter and then do not show up for his/her appointment. That happened to me once. I paid for an interpreter for a hearing impaired person who did not appear. I learned that you may need to verify with the hearing impaired person will actually show up for the appointment.

The U.S. Commerce department advanced a reason for the citizenship question in the 2020 census. Department head, Wilbur Ross tried to claim the question was included to help enforce the Voting RightsAct. But, the lower court, in an opinion which was affirmed on appeal by the U.S. Supreme Court, found the reason to be “contrived.” That is, the lower court found the reason to be fabricated. See the decision in Commerce Department v. New York, No. 18-996 (6/27/2019) here. The district court judge was not happy to see the President’s tweet indicating the Administration would seek further reasons justifying the citizenship question.

This really should be obvious, but apparently it is not. Whatever reason the Administration comes up with now will also look contrived. It should be obvious that whatever the real reason was, it should have been advanced when this lawsuit started 18 months ago. We have to consider at this point that the Administration is remarkably incompetent. It is one thing to fabriacate reasons when a lawsuit is joined. But, to state publicly that your first reason failed, so you will now dig even deeper to find the “real” reason why you did something.  Engaging in such an exercise acknolwedges that you are again contriving.

The DOJ lawyers at that Friday meeting told Judge Hazel they were seeking alternative ways to include the citizenship question in the 2020 census. That means the lawsuit will proceed. See CNN news report.

Discrimination cases are similar. Employers will advance a reason for the termination – other than discrimination. If that reason fails, the employer is essentially done. Any additional, “new” reason will of course be suspect. There is a principle of law that an employer ought to know why it fired someone. If it changes reasons, that change in itself suggests prevarication.Just as a Commerce department ought to know why it included a citizenship question.

Yet, this administration persists in looking for a new reason. As if no one notices that they ought to know why they did something just two years ago in 2017…………

Once again, I nominate Pres. Trump for the award as the worst client in America. His administration has pursued a weak, almost frivolous appeal regarding the citizenship question on the 2020 census. Finally, just last week, the U.S. Supreme Court said the reason advanced by the Administration for the citizenship question was “contrived.” That is a big deal, since the entire challenge to the citizenship question turns on whether the administration followed required procedures in adding the citizenship question. The entire lawsuit turns on how the Commerce department arrived at that citizenship question. So, when the U.S. Supreme Court finds the question to have been “contrived,” then your credibility, as a party to the lawsuit, is shot. You as a party litigant party have been found to have lied.

Earlier this week the parties to the lawsuit had a conference with the judge. The Department of Justice told the judge that DOJ was done with what was a weak lawsuit. Doubtless all the attorneys and the judge knew it was a weak lawsuit. But, being professionals, they probably said nothing about the quality of the Administration’s defense.

Then, at this meeting on Tuesday, July 2, the parties were likely wrapping things up. DOJ said it was done. The Judge accepted the DOJ assurance at face value, thinking the lawyer was speaking for his client.

So, we can imagine the judge’s surprise the next day when Pres. Trump tweets that DOJ is not done. He will direct DOJ to find a way to get the citizenship question on the 2020 census.

What had happened was that conservative radio host Hugh Hewitt had tweeted that if DOJ was folding its tent on the issue, then that was the worst defeat the Trump Administration had sustained. Soon after Hewitt’s tweet, Pres. Trump tweeted his assurance that DOJ was not done.

Well, Judge George Hazel, the Maryland judge who was overseeing the lawsuit, tweets. He follows the President’s twitter account. He saw the tweet just one day after being assured DOJ was done with its opposition. He immediately called the DOJ lawyer, Joshua Gardner, away on vacation, and insisted he participate in a telephone hearing that day regarding what the Administration is doing. See CNN news report.

The judge held a telephone hearing on July 3 regarding the President’s tweet. The plaintiffs want the parties and the judge to enter an order which states specifically the government will not include a citizenship question on the 2020 census. The judge did not accuse the DOJ lawyers of mis-leading him, but that was the under-current. See transcript here of the telephone hearing.

As Mr. Gardner, the DOJ attorney, explained, this is a very “fluid” situation – meaning he does not know what the President is saying or why he is saying it. Judge Hazel ordered a hearing on July 5, at which time the government must either agree to an order saying it would not include a citizenship question, or re-start the lawsuit to see to what extent the plaintiffs have been harmed by the government’s actions. This being the July 4 weekend, the DOJ lawyers asked if they could hold the hearing on Monday. The judge responded, “no.” The time was slipping away, already, he noted.

In an ordinary lawsuit, the judge would insist the client attend the next hearing, so the judge can be sure the lawyer is speaking for his client. In this case, the two DOJ lawyers were able to assure the judge they were as surmised as Judge Hazel was by Pres. Trump’s tweet. Otherwise, in an ordinary case, most judges would insist the client attend the next hearing.

And, as the hearing closed on July 3, one of the plaintiff lawyers pointed out to the judge that the Administration had been saying for months that June 30, 2019 was a hard and fast deadline. Given the President’s tweet, that appears to not be true. Of course, the judge could not disagree. He could only acknowledge the obvious.

So, yes, a President who cannot harness his team to pull in the same direction and cannot restrain his tweets long enough for his lawyer to enjoy a day off is a poor client indeed.

It is extremely rare for the U.S. Supreme Court to overturn one of its prior decisions. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), comes to mind. But, that decision overruled the “separate but equal” ruling in Plessy v. Ferguson, 163 U.S. 537 (1896) decision. See that decision in Brown v. Board of Education here.  That doctrine had long been shown to have been wrong and unworkable. So, on some level, the decision in Brown v. Board of Education was not surprising. Sooner or later, that decision would have been issued. The Supreme Court does not have to overrule a prior decision to change the law. The court can re-interpret the old decision to mean something else. When a court specifically overrules a prior decision, it is saying  the decision was flat wrong on the law. A court is going the extra mile to specifically overrule a prior decision.

Precedent has value, because businesss, people and the economy rely on a predictable body of law. Changing the law has untold ripple effects.

According to CNN, the Supreme Court has reversed one of its prior decisions only 300 times in the past 200 years. Most often when it does so, it reverses itself within the first 20 years or so of the decision. See CNN news report here. Most of these decisions concern relatively obscure areas of law that do not affect many Americans.

Yet, within the past 12 months, the Supreme Court has reversed three major decisions. In 2018, the court overruled some 45 years of precedent regarding deduction of unions dues in Janus v. American Federation, 585 U.S. ___ (2018). That decision changed the law to reflect that non-union members could not be compelled to pay for union negotiations. In this decision, the majority decision said stare decisis (i.e. prior decision) is not an “inexorable command.”

That is an odd thing for any judge to stay. In the legal business, we rely on precedent and prior procedures. Every lawyer builds every motion, memo, letter on a prior example s/he obtained from someone else. We live by precedent. For a judge, at the apex of a 30 or 40 year career to stare decisis is not a command is odd.

This year, in Franchise Tax Board of California v. Hyatt, 139 S.Ct. 1485 (2019), the Supreme Court overruled a precedent from 1979. That decision changed the prior law to rule that a state cannot be sued in the court of another state. And, again, the majority decision said stare decisis is not an “inexorable command.” Lawyers and judges are inherently conservative. We rely on old things. We prefer not to seek changes in the law, if we can help it. It is odd that a senior judge will dismiss the doctrine of stare decisis.

One of the dissenting judges, Stephen Bryer, commented that the courts should not overturn a decision, simply because they do not like the decision. A decision should be overturned only when the old ruling defies practical workability – when the decision has been left behind by related principles of law. He did not mention the decision in Brown v. Board of Education of Topeka, but that is what he meant. The old law must be so clearly abandoned by other legal principles that it must be specifically jettisoned, not simply re-interpreted.

And, this year, in Knick v. Township of Scott, No. 17-647 (6/21/2019), the court reversed another decision from 1985 and held that a person could sue a local government for a taking, even if state law provided recourse. See ABA Bar Journal report here.

The Supreme Court did not overrule prior precedent regarding double jeopardy in Gamble v. U.S., No. 17-646 (6/17/2019). But, it was remarkable that some observers thought the court might overrule hundreds of years of precedent regarding double jeopardy.

It is a strange thing that the current Supreme Court has overruled three major prior precedents within the past 12 months. It is rare that many observers thought the Supreme Court might overrule some 170 years of precedent regarding double jeopardy. We are in uncharted waters.

SSGT David bellavia was just awarded the Medal of Honor. He took out a building that was threatening his platoon. His battle devolved into hand-to-hand combat at times. In his speech, he gave credit to his squad, his platoon and his company. He recognized his interpreter, Sammy, who was just made a U.S. citizen. Sammy, Muslim, doubtless did much to save lives at Co. A, 2/2 Infantry, 1st Infantry Division. SSGT Bellavia is an articulate young man, who talked about why he values his military service. Because it brings out the best in him and in his compadres.

As he mentioned, every war, except for World War II, has some controversy.  The Iraq war was no different. As he mentioned, there is no political affiliation on our dog tags. No one cares what you look like, who you voted for, who you worship, who you love, who father was, if you inherited millions from your father, if you know who your father was. The military unit will become well honed into a machine of lethal moving parts that will give pause to anyone who seeks to do us harm. We go where we are sent. We serve because we do not want our children to have to serve. We stand ready to protect our country, so help us God.

The interpreter for his unit, Sammy, was just made a U.S. citizen. The crowd gave him a standing ovation, as they should. Interpeters kept us out of so many accidental confrontations. They saved our lives in a wide variety of ways.

His father wanted him to attend dental school, but as he mentions, he learned more  from fighting with these wonderful comrades than he would have learned from a lifetime of root canals. See SSGT Bellavia’s speech here.