How the EEOC’s Maintenance of an “Alleged Offenders” Log Can Help Prevent the Next Harvey Weinstein

SAMUEL ESTREICHER, JOSEPH SCOPELITIS

NYU law professor Samuel Estreicher and recent graduate Joseph A. Scopelitis argue that the EEOC should maintain a log of “alleged offenders” to help prevent the next Harvey Weinstein. Estreicher and Scopelitis explain why such a log would effectively balance the interests of the alleged offender and victim, the employer, and the public.

Read More

Level the Playing Field v. Federal Election Commission

Docket: 19-5117

Opinion Date: June 12, 2020

Judge: Arthur Raymond Randolph

Areas of Law: Election Law, Government & Administrative Law

Plaintiffs filed suit alleging that the CPD routinely endorses and supports Republican and Democratic nominees at the expense of third-party candidates, and that the CPD uses subjective and biased criteria for selecting debate participants. Specifically, plaintiffs challenged the 15% polling criterion, which the CPD used to determine eligibility for participation in the debates preceding the 2012 Presidential election. Plaintiffs also challenged the Commission's denial of its request to initiate a rulemaking to change its rules to prohibit debate sponsors from using public opinion polls as a criterion for eligibility. Applying de novo review, the DC Circuit affirmed the district court's grant of summary judgment for the Commission. The court held that plaintiffs failed to show that the Commission's decisionmaking was arbitrary and capricious where the Commission offered detailed explanations in support of its view that plaintiffs failed to show impermissible bias against independent candidates or in favor of candidates from the two major political parties. The court also held that the Commission acted reasonably in determining that a 15% polling threshold is an objective requirement. Finally, because the court has found that the Commission acted reasonably in reaching its decisions, the court held that the Commission did not err by electing not to initiate a rulemaking.

Circus Circus Casinos, Inc. v. National Labor Relations Board

Docket: 18-1201

Opinion Date: June 12, 2020

Judge: Rao

Areas of Law: Labor & Employment Law

The DC Circuit granted a petition for review of the NLRB's determination that Circus committed three unfair labor practices related to a temporary employee. The court held that the Board engaged in unreasoned decisionmaking by finding unfair labor practices without substantial evidence on the record as a whole and by departing from announced standards in an arbitrary and capricious manner.    The court held that NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), requires an employee to affirmatively request union representation in a manner reasonably calculated to put the employer on notice. In this case, the employee's statement of fact standing alone was insufficient to trigger the protections of the National Labor Relations Act. The court also held that the Board misapplied the Wright Line mixed-motive test by failing to consider the employer's rebuttal case. Consequently, this error is fatal to the Board's finding that Circus violated section Section 8(a)(1) by suspending and terminating the employee because of a protected activity. Finally, the court held that the ALJ witness credibility determinations supporting the conclusion that the employee was threatened is patently insupportable. In regard to the unlawful termination finding, the court remanded for further proceedings.

Independent Union of Pension Employees for Democracy and Justice v. Federal Labor Relations Authority

Docket: 19-1065

Opinion Date: June 12, 2020

Judge: Judith Ann Wilson Rogers

Areas of Law: Labor & Employment Law

The DC Circuit denied a petition for review of the Authority's order finding that the Union committed unfair labor practices by attempting to dismantle the pool of arbitrators selected by a predecessor union and thereby impeding access to the grievance process. The court held that the Authority's conclusion that the Union committed unfair labor practices was not arbitrary and capricious. Rather, the Authority followed its own precedent when it determined that the Union's outreach to the two arbitrators amounted to unfair labor practices. The court also held that the Authority did not act contrary to law when it determined that the Union acted outside of the statutory protection for the expression of personal views; the Union has not demonstrated that its First Amendment rights were violated, seeing as it failed to identify a public concern implicated by its speech; the Authority's nontraditional remedy did not exceed its statutory authority because it was an appropriate exercise of its power to carry out the purposes of the Civil Service Reform Act by restoring the status quo ante; and the Union's application for leave to adduce additional evidence is denied because the Union has not established that the evidence is material or that there were reasonable grounds for the Union's failure to adduce it earlier.

Seed Company Limited v. Westerman, Hattori, Daniels & Adrian, LLP

Docket: 19-7086

Opinion Date: June 12, 2020

Judge: Karen LeCraft Henderson

Areas of Law: Legal Ethics, Professional Malpractice & Ethics

Plaintiffs filed a legal malpractice case arising out of the failure of two sets of lawyers associated with two different law firms, Westerman, Hattori, Daniels & Adrian, LLP (Westerman) and Kratz, Quintos & Hanson, LLP (Kratz), to file necessary documents in plaintiffs' patent case, allegedly resulting in plaintiffs' loss of that case. The complaint alleged four counts against defendants: Count I against both defendants for the original malpractice, Count II alleging that Westerman negligently gave legal advice after the original decision in the patent case issued and Counts III and IV alleging that advice Kratz gave regarding the malpractice case against Westerman led to the loss of the Count I claim against both defendants through the operation of the statute of limitations. The DC Circuit affirmed the district court's dismissal of Count II of the Second Amended Complaint where the district court did not abuse its discretion by finding that plaintiffs waived any claim for damages arising from the Count II allegations. The court also affirmed the district court's grant of summary judgment on Counts III and IV of the Second Amended complaint where plaintiffs failed to establish that Armstrong's advice was the proximate cause of its injuries.