Tracking the latest developments in the fight for a fair America
By Kasey Burton
Extern, National Employment Lawyers Association
On October 8, I attended the oral argument at the U.S. Supreme Court in the case of Integrity Staffing Solutions, Inc. v. Busk. The issue before the Court is whether employees should be paid for time they spend, after their shifts are over, waiting to complete a mandatory security screening used to see if the employees are trying to steal anything. Workers at Amazon.com warehouses, employed by Integrity Staffing, are required to undergo a mandatory search of their body and belongings before being permitted to leave the facility. The search, which is similar to that conducted at airports, requires employees to empty their pockets, have their bags searched, and walk through a metal detector. Long lines often form at the screening stations, requiring workers to wait up to 25 minutes before they can leave the premises.
Although this case will address the specific issue of whether warehouse employees must be compensated for anti-theft inspection of their person and belongings and the waiting time involved, the impact of the Court’s decision will likely be far broader. As counsel for the workers Mark R. Thierman said, this is about Integrity Staffing’s attempt to push the line of compensation to encompass less and less. (The workers are also represented by Professor Eric Schnapper, University of Washington School of Law.)
Counsel for Integrity Staffing Paul D. Clement characterized the wait time as simply a “logical part of the egress process” that did not merit compensation. He argued that the Portal-to-Portal Act of 1947, which amended the Fair Labor Standards Act, requires the screening to be an “integral and indispensable” component of the workers’ “principal activities” in order to mandate compensation under the law. Clement repeatedly asserted that the screenings were in no way “integral and indispensable” to the work the employees performed. He compared the screening to checking out at the end of the workday—an activity for which employees are not compensated.
Curtis E. Gannon, Assistant to the Solicitor General, arguing for the government, agreed. He urged the Court to find that the screening failed to rise to the level of compensable activity. When pressed by Justice Ruth Bader Ginsburg for an example of how invasive a security screening had to be before it could be compensable, Gannon stumbled, eventually capitulated, and stated that he could not provide a specific example of when a screening would cross the line into compensable territory.
Thierman reframed the discussion, distilling the Court’s inquiry to two questions: Is it work? If it is work, is it a “principal activity” requiring compensation? Although Justice Samuel Alito chastised Thierman for failing to argue whether the screenings were “integral and indispensable” to the employees’ work of packing and shipping merchandise, Thierman persevered, picking up steam as he continued. He focused his argument on the practical realities of the security screenings, arguing that they went far beyond a basic check-out process. He explained that had the employees been required to remain at their workstations for screeners to inspect them, the time would certainly be compensable. The warehouse workers, he explained, are “engaged to wait.” Because they are required to wait for up to 25 minutes each workday to be screened, he argued, they must be compensated for their time.
The Justices, based on their questions and comments, appeared to be split along predictable lines, with Justice Anthony Kennedy’s vote hanging in the balance. The conservative justices appeared concerned with the abstractions of the law, while the liberal justices aimed to reconcile the law with the practical realities of the retail workplace in the 21st Century. Justice Elena Kagan focused her questioning on the anti-theft nature of the screenings, categorizing the screening procedure as inventory control. Justice Ruth Bader Ginsburg asked about what appeared to be the intentional shortage of screening staff that, as she noted, shifted the cost of conducting the screenings onto the employees who were forced to wait. Justices John Roberts and Antonin Scalia both insisted that a “principal activity” could not include going through a security screening, because a “principal activity” must be an important, central function of the job.
Justice Kagan asked one of the more interesting questions, positing a hypothetical based on real life. She said that there was a judge years ago in New York who required his law clerks to arrive early every workday to cut up his grapefruit and make his breakfast. She wondered whether the government thought that was compensable time. Gannon had to concede that it was.
Kasey Burton is a third year law student at the University of Washington School of Law, in Seattle. She is externing at the National Employment Lawyers Association, an AFJ member organization, which filed an amicus brief in this case.
A judicial disciplinary committee has dismissed a judicial misconduct complaint filed last year against Judge Edith Jones of the United States Court of Appeals for the Fifth Circuit. As a result, Judge Jones will continue to be able to decide cases in which she’s demonstrated bias – and a review of her record since the complaint was filed 16 months ago shows that such cases frequently come before Judge Jones.
At issue is a series of statements by Judge Jones about African Americans, Hispanics, the developmentally disabled, and
anyone convicted of a capital offense. Jones made the statements at a talk sponsored by the University of Pennsylvania Law School chapter of the Federalist Society.
A coalition of civil rights groups and legal ethicists filed the complaint, supporting it with sworn affidavits from six people who attended the talk. Chief Justice John Roberts referred the complaint to the Judicial Council of the U.S. Court of Appeals for the District of Columbia Circuit. AFJ submitted a letter in support of the complaint. The coalition is appealing the dismissal.
The council acknowledged that if the allegations against Judge Jones were true, she would be in violation of the Code of Conduct for United States Judges. But the council found that those who filed the complaint failed to prove that she actually made the offending remarks.
In their appeal, the complainants raise several concerns about how this conclusion was reached, noting that:
- The evidence submitted by Jones in her own defense is secret.
- While Jones was allowed to testify before the council, those who filed the complaint and five of the six eyewitnesses were not. The complainants couldn’t even attend.
- The transcript from this hearing remains secret, as does a report prepared by the council’s Special Counsel who investigated the allegations. Such materials can be released with the defending judge’s permission, but Judge Jones has refused to provide authorization.
- A list of evidence presented in Jones’s defense indicates that the only direct refutation of the claims in the complaint is Jones’ own denial, and one statement from one person in attendance, solicited by the Federalist Society months after the fact.
The photos you send via Snapchat may not really go away, but your rights disappear in a flash
By now you’ve probably heard about what’s been called “The Snappening” – the leak of at least 90,000 photos and 9,000 videos sent by users of Snapchat – users who probably thought those images would disappear after ten seconds.
After all, that is Snapchat’s big selling point. But now there is reason for Snapchat users – and their parents – to be very, very concerned. As Marlow Stern writes in The Daily Beast:
Because of its “self-destruct” reputation, the app is a popular tool among youngsters for transmitting sexually explicit material. Snapchat claims that 50 percent of its users are between 13-17 years of age, this potentially brings “The Snappening” into child pornography territory.
That’s enough to scare any parent of a Snapchat user. But as we explain below, while Snapchat may not have done a good job of protecting its users’ security, it’s doing a great job of protecting itself. Snapchat makes your rights disappear – by using a pernicious practice known as forced arbitration.
Snapchat says the massive leak of photos and videos is not the company’s fault. They issued a statement blaming it all on third-party applications which work around the self-destruct feature:
The company did not answer questions about what steps it has taken to warn its users about these third-party services aside from its Terms of Service.
Chris Eng, vice president of research at computer-security research firm Veracode, said Snapchat has “a history of not taking security seriously.” [One of the third-party apps] was in the [Google Play Store] since 2013. That alone suggests to me that they’re not being very aggressive’ about policing third-party apps, Eng said.
Similarly, in a commentary for Wired Prof. Woodrow Hartzog of the Cumberland School of Law at Samford University writes:
The guidance and rules are buried in the fine print with no explanation for the ban on third-party software. This dense, boilerplate agreement places the burden of securing against this attack on the party in the relationship least likely to have knowledge of the vulnerability—the user. People who relied upon the app’s implicit promise of ephemera and relative safety wouldn’t be wrong to feel betrayed by Snapchat’s “it’s not us, it’s you” attitude.
Forced arbitration means that Snapchat users, instead of being able to stand up for their rights in court, will have to go before a private arbitrator. It also means that Snapchat chooses the arbitrator, Snapchat decides where the arbitration will take place (Los Angeles County – no matter where the victim happens to live), and Shapchat requires that the proceedings be secret. There is no effective way to appeal. And the victims and their parents can’t band together to bring their legal action; each must take on Snapchat individually.
Given how the deck is stacked, it’s no wonder that one study found that, in consumer disputes, the consumer forced into forced arbitration loses 94 percent of the time.
But there is one thing we can do. If you’re a Snapchat user go to our action page where you can demand that Snapchat stop using forced arbitration. You can demand the same of many other companies with which you’re doing business.
When the time comes to decide, once and for all, if Snapchat has any responsibility for the leaking of 90,000 photos and 9,000 videos, shouldn’t that decision be made by a judge and a jury – not an arbitrator chosen by Snapchat?
By Nick Little
Legal Director, Center for Inquiry
Holt v. Hobbs is an odd case to come before the Supreme Court. It is a situation where each side has firmly dug its heels into the ground, and the kind of case that leaves non-lawyers shaking their heads about wasting taxpayer money. An Arkansas state prisoner, Adbul Maalik Muhammad (previously known as Gregory Holt) claims his religion requires him to eschew shaving, but is willing to compromise on a half-inch beard. The state of Arkansas, on the other hand, claims the prison system cannot function if prisoners are allowed to grow beards for religious reasons, but is willing to permit prisoners with skin conditions to grow quarter-inch beards. And so, on October 7th, this case made it all the way to the Supreme Court.
Such a case presents quite the dilemma for the Court. On the one hand, the Roberts Court has not been a friendly one to prisoner claims, with the conservative majority, for example, finding no need for reasonable suspicion to allow strip searches of prisoners. On the other, this court has been extremely solicitous of religious freedom cases. It ruled that a church school could designate its teachers as ministers, thus exempting them from employment discrimination laws, and the conservative majority famously ruled that corporations could claim religious exemptions to the requirement to provide health insurance for contraception. This case places those two trends in conflict.
At its core, this case is about way more than beards on prisoners. The central issue dominating oral arguments is the deference due to correctional staff regarding the necessary government interest. Muhammad sued under the Religious Land Use & Institutionalized Persons Act (RLUIPA). This law, along with the Religious Freedom Restoration Act (RFRA), sets a very high threshold for the government to meet in order to justify a “substantial burden” to a person’s exercise of religion. The government must show a compelling interest, and must advance it in the least restrictive manner possible. Judged by this standard, Arkansas’ case appears flimsy. It seems hard to justify how significant contraband can be concealed in a half-inch beard but not in a quarter-inch one. Or how a prisoner shaving off a half-inch beard can significantly change his appearance, thus posing a threat to prison security.
But Arkansas claims that courts must simply accept the word of the prison system as to what threatens security, the maintenance of which is clearly a compelling interest. Accepting this argument seems to dramatically undercut the intended protections of RLUIPA. If prison officials are to be believed, with no other evidence, that half-inch beards are a major threat to safety, and thus must be banned without exception, despite 40 other prison systems allowing them, what claim can succeed? The Court focused on this issue in questioning Arkansas’ attorney, with justices across the bench seemingly unconvinced that actual risks would follow allowing such a beard. Justice Breyer and Chief Justice Roberts noted that Arkansas had failed to show any actual harm anywhere in the country from such an exemption. Justice Alito questioned whether Arkansas’ policy was indeed the least restrictive means available, asking why the simple expedient of requiring an inmate to comb his beard would not suffice.
In questioning the Muhammad’s attorney, on the other hand, the Court showed concern that this case would not end litigation on this issue because prisoners will claim the right to grow longer beards. While Mohammad’s counsel noted that his client should not be penalized for being reasonable and offering to compromise on a half-inch beard, Justice Scalia suggested that the Court never should have taken the case, but instead should have waited for a case with a request to grow a full beard. The Court’s worry that it would be unable to craft an overall rule did not, however, appear to translate to an acceptance of Arkansas’ claim, described by Muhammad’s attorney as “absolute deference to anything they say just because they say it.”
As far as the tea leaves of oral argument can be read, the Court appeared overall sympathetic to the plaintiff and his request for a religious accommodation. The liberal wing, comprised of Justices Ginsburg, Sotomayor, Kagan and Breyer, was unconvinced that Arkansas had made the necessary showing of harm to override Muhammad’s religious convictions. These concerns were also shared by the more conservative justices, including Justice Alito, who challenged why the prison system could not accommodate this request by simple adjustments. Justice Scalia could not resist making clear he didn’t think RLUIPA was a good law (unsurprisingly, as it and RFRA were enacted by Congress to directly reverse his decision in Employment Division v. Smith). He noted that the text of the statute required a compelling government interest, so there would be no question of a reasonableness test to balance the interests of the prisoner and the prison system. What is certain, however, is that even if this prisoner is granted his exemption, this is not the last RLUIPA claim that will make it to the Court, and quite possibly not even the last beard case.
By Meghan Jones & Christopher Brook,
ACLU of North Carolina
Can a police officer’s mistaken interpretation of the law justify a traffic stop? On Monday, October 6, 2014, the United States Supreme Court will hear oral argument on that question in the case of Heien v. North Carolina.
In 2009, Nicholas Heien was the passenger in a vehicle that had only one operating brake light. An officer pulled the car over, wrongly believing the vehicle was in violation of the law. North Carolina plainly requires only one rear brake light, as the North Carolina Court of Appeals recognized in 2011. That conclusion was so obvious that attorneys for the State did not dispute it before the North Carolina Supreme Court.
The fact that the State, defense, and both North Carolina appellate courts agreed Mr. Heien had not violated the law should have made for a straightforward legal inquiry. The Fourth Amendment to the U.S. Constitution forbids unreasonable searches and seizures. The United States Supreme Court has interpreted this provision to require an officer to have objectively reasonable suspicion that a law is being broken in order to conduct a traffic stop.
Yet, in spite of the fact that Mr. Heien’s vehicle was not breaking a single law, the North Carolina Supreme Court upheld the constitutionality of the traffic stop. The court concluded the officer’s mistake of law was “reasonable” and that to rule otherwise would hold officers to an unattainable standard of “omniscien[ce].” Read more