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Hold That Pose: Can the Bikram Yoga Sequence Be Protected by Copyright Law?

A type of hatha yoga characterized by a set series of postures and breathing exercises, Bikram yoga is performed in a room heated to a high temperature (roughly 105 degrees Fahrenheit). All Bikram classes run for 90 minutes and consist of the same series of 26 postures (the “Sequence”), including two Pranayama breathing exercises. Popularized by esteemed guru Bikram Choudhury in the 1970s, Bikram yoga is now taught by instructors all over the United States.

The popularity of Bikram yoga appears to have shaken the original founder’s zen. Indeed, Mr. Choudhury has sued several studios, like NYC’s Yoga to the People, for copyright infringement, reaching settlements that have prevented studios from using the Bikram name or copying the Bikram Sequence. Faced with lawsuits, such studios must either sweat it out in court or otherwise capitulate and lie down in savasana (or corpse pose).

One such case occurred in 2011, when Choudhury and Bikram’s Yoga College of India sued Evolation Yoga for copyright infringement and related claims (e.g., trademark infringement and violations of teacher-certification agreements). Codefendants (also husband and wife) Mark Drost and Zefea Samson are former trainees of Bikram’s course of study and became authorized to teach Bikram’s Basic Yoga System. The two eventually formed Evolation Yoga, which uses the same Sequence, prompting a cease-and-desist letter demanding the pair stop teaching Bikram yoga. The plaintiffs argued that the Bikram yoga Sequence should be protected as a compilation and as choreography (and are within the ambit of Choudhury’s various copyrights for his yoga-related books depicting the Sequence).

In December 2012, a California court dismissed Choudhury’s copyright claims, leaving related trademark and breach of contract claims for a future session. The court remained inflexible to the notion that the Sequence of Bikram yoga poses could be protected by copyright law, causing studios everywhere to relax their muscles. (Bikram’s Yoga College of India, L.P. v. Evolation Yoga, LLC, 2012 WL 6548505 (C.D. Cal. Dec. 14, 2012)).  The court held that although books or photographs that depict a compilation of exercises may be copyrightable, the compilation authorship would not extend to the selection of the exercises themselves depicted in the photographs: “There is a distinction between a creative work that compiles a series of exercises and the compilation of exercises itself. The former is copyrightable, the latter is not.”  Moreover, the court found that, as a functional system that promotes physical and mental benefits, yoga postures cannot be registered for copyright. In dismissing Choudhury’s claim, the opinion meditates on a U.S. Copyright Office statement of policy declaring that a compilation of exercise or yoga moves does not fall under one of the Copyright Act’s eight categories of authorship. Consequently, and according to the policy statement, yoga poses are ineligible for copyright protections. (See 77 Fed. Reg. 37605 (June 22, 2012).)

Appealing to a higher power (that is, the Ninth Circuit), Choudhury’s lawyers are trying to get the case sent back to the yoga mat. Last month at oral argument, Choudhury’s counsel argued that, while individual poses are not copyrightable, the guru is trying to protect his “creative vision” in his specific 26-pose Sequence. Balancing yoga positions with ballet poses, Choudhury argued that all such forms of physical movement should be eligible as a protectable compilation or expressive choreographic work, or, at the very least, protectable against verbatim copying.  The appellants also argued that the Copyright Office’s policy statement should not be entitled to any deference by the court.

Remaining firm in tadasana (or mountain pose), the defendants reasserted and stretched the lower court’s ruling that copyright protection extends only to books containing Choudhury’s instructions, not to the routine itself—much like a cookbook author’s inability to protect the actual cooking of a recipe.  Bikram’s arguments also have drawn bad vibes from Yoga Alliance, an international trade association, which filed an amicus brief in support of defendant, finding that Bikram’s position “would be devastating to the yoga community.”

Until the court of appeals releases its decision, Bikram yogis across the country will continue to warrior their way through 105-degree heat. (Don’t try this at Om.)

© 2015 Proskauer Rose LLP.
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New Overtime Rules: $970 Per Week Salary Proposed For White Collar Exemptions in 2016

The minimum weekly salary for exempt employees will be raised from the current $455 to a likely $970 in 2016, if the Department of Labor’s (DOL’s) overtime pay revisions go into effect as proposed. In its long-awaited proposed revisions to overtime rules, the DOL estimates that 4.6 million U.S. workers who are currently exempt will be entitled to minimum wage and overtime compensation under the new salary level requirements.

Salary Level Would Automatically Adjust on an Annual Basis

Under its proposed rules, the DOL sets the salary threshold for the white collar exemptions at the 40th percentile of weekly earnings for full-time salaried workers nationwide. For 2013, using data from the Bureau of Labor Statistics, that figure was $921 per week, or $47,892 per year. The DOL anticipates that when its Final Rule goes into effect in 2016, the salary level will be $970 per week, or $50,440 per year.

In order to maintain the salary levels at a fixed percentile of earnings, the DOL proposes that the salary threshold automatically update annually. The automatic adjustment is intended to prevent the salary level from diminishing through inflation and to potentially make additional rulemaking adjusting the salary basis unnecessary. The DOL believes that this will provide more certainty to employers with a meaningful, bright-line test while improving government efficiency.

Highly Compensated Employee Exemption: $122,148 Salary

The current exemption for highly compensated employees requires an annual salary of $100,000. The DOL proposes to raise that salary threshold also based on an annualized value of a percentile of weekly earnings for full-time salaried workers. This proposal sets the salary level of highly-compensated employees at the 90th percentile, which was $122,148 per year for 2013. That number will likely be higher by the time the Final Rule is implemented. This salary requirement would also adjust automatically to the level equal to the 90th percentile of earnings for full-time salaried workers.

No Proposed Changes to Duties Requirements

Since 2004, the duties tests for the white collar exemptions have not included a limit on the amount of time that an employee can spend on nonexempt duties before the exemption is lost. Believing that a rise in the salary level will provide an initial bright-line test for the exemptions, the DOL refrained from proposing changes to the duties tests but will consider requests for changes during the comment period.

In its proposal, the DOL noted that employer stakeholders opposed any changes to the duties requirements as percentage limits on the amount of time spent on nonexempt duties are sometimes difficult to apply and hinder flexibility for work duties. Employee groups, on the other hand, expressed concern that certain businesses treat workers as exempt even though the employees perform mostly nonexempt duties, especially (they claim) in the retail industry. Without proposing its own duties requirements, the DOL seeks input from interested parties on whether changes to the duties tests are necessary in light of the salary level increases proposed.

Nondiscretionary Bonuses May Be Included in Salary Level Requirement

In the past, the DOL has not included nondiscretionary bonus payments when determining whether an employee’s salary meets the white collar exemption threshold; it looked only at actual salary or fee payments made to employees. In its proposed rules, the DOL seeks input on whether it should permit some amount of nondiscretionary bonuses and incentive payments to count toward a portion of the salary level requirement for the executive, administrative and professional exemptions. The DOL states that for these bonuses or incentive payments to count toward the weekly salary requirement, the bonuses and incentive payments would need to be paid monthly or more frequently, not as a yearly “catch-up” payment.

Next Steps

If you want to submit any comments on the DOL’s proposed changes to the overtime rules, you have 60 days in which to submit your input either electronically or by mail. Instructions are at the beginning of the Notice of Proposed Rulemaking.

After considering comments from interested parties, the DOL will decide whether to make any revisions to its proposed overtime rules and will issue its Final Rule sometime thereafter. Although the final version of the rules may change slightly, you should begin preparing for the changes now.

Examine your payroll records to determine which employees are currently treated as exempt under the various white collar exemptions. Determine which, if any, would or would not meet the new salary thresholds: $50,440 per year for executive, administrative and professional exemptions and $122,148 for highly compensated employees. Review the duties tests to make sure your exempt employees are performing exempt tasks.

After this review, consider how your organization is going to handle those employees who may not qualify as exempt under the new rules. Do you want to increase their salary to meet the new threshold? Change their status to nonexempt and pay them minimum wage and overtime? Do you need to change their duties to make sure they meet the duties tests? Have these internal conversations now so that you are not caught off guard when the Final Rule goes into effect in the coming months.

Copyright Holland & Hart LLP 1995-2015.
2015 NAWL Annual Meeting and Awards Luncheon

Up for the Challenge: Harnessing Our Power to Lead – 2015 NAWL Annual Meeting and Awards Luncheon July 16, 2015

Join over 800 leading women lawyers from across the United States and abroad at our 2015 Annual Meeting & Awards Luncheon held at the Grand Hyatt New York on Thursday, July 16. NAWL will recognize and honor leading lawyers who have made a significant impact to improve and diversify the legal profession, as well as NAWL members who, through their time and effort, have made exceptional contributions to fulfilling NAWL’s mission. In addition, you will have the opportunity to participate in interesting substantive programming along with plenty of networking opportunities.


July 16, 2015


Grand Hyatt and Grand Central, NYC

Register today!

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New York City Mayor Signs “Ban the Box” Law

Mayor Bill DeBlasio signed a bill (Int. No. 318) that amends the New York City Human Rights Law (“NYCHRL”) to further restrict employers (with four or more employees) from inquiring into or otherwise considering an applicant’s or employee’s criminal history in employment decisions.  The new NYC law will take effect on October 27, 2015.

As we detailed in our prior post, the new NYC law prohibits employers from asking about criminal history on an initial employment application (“ban the box”) and at any time prior to extending a conditional offer of employment.  The new NYC law also forbids employers from stating on any job advertisement or other solicitation or publication that employment is conditioned or limited based on an applicant’s arrest or conviction history.

For years, before an NYC employer could take adverse action on the basis of criminal history, it had to first engage in a multi-factor analysis under Article 23-A of the New York State Correction Law to determine whether a sufficient nexus exists between the offense and position sought.  Now, under the new NYC law, before taking adverse action the employer also must:

  • furnish a written copy of the criminal history inquiry to the applicant in a form determined by the New York City Commission on Human Rights (“NYCCHR”);

  • provide a written Article 23-A analysis to the applicant in a form determined by the NYCCHR, together with “supporting documents” setting forth the basis and reasons for the adverse action; and

  • after providing the applicant with the required documentation, allow him or her at least three business days to respond and, during that time, hold the position open for the applicant.

To redress violations of the new NYC law, aggrieved applicants and employees may file a complaint with the NYCCHR or in court, with the promise of lucrative remedies under the NYCHRL.

The new NYC law does not apply where the employer must take action pursuant to any federal, state, or local law that requires criminal background checks for employment purposes or bars employment based on criminal history.  For purposes of this exception, “federal law” includes the rules or regulations of a self-regulatory organization as defined by the Securities Exchange Act of 1934 (like FINRA).  The new NYC law also excepts various public employment positions.

NYC now joins a growing number of jurisdictions across the nation that have “banned the box” and otherwise regulated employer use of criminal history in hiring and other personnel decisions.  To ensure compliance with the new NYC law, employers should start to review and, where necessary, make changes to their background check procedures and forms.

President Obama Makes Announcement on Overtime Regulations

On Monday, June 29, President Obama announced a change in rules that would expand overtime eligibility to millions of Americans.

CHARLOTTE NC - SEP 21: Democratic nomonee Barack Obama makes a campaign stop in Charlotte NC on Sept 21 2008Beginning with the observation that “It’s been a few good days for America,” Obama announced the salary threshold where workers wouldautomatically qualify for time-and-a-half overtime wages would be raised from  $23,660 to $50,440.  This change in regulation can be made by the Administration, with no need for Congressional approval. The announcement came through a blog post written by the President for the Huffington Post, you can read it here.

President Obama argued that by failing to change the regulations, they had modified their original intentions–instead of highly-paid white collar workers being exempt from overtime, this was negatively impacting workers making as little as $23,660 a year, no matter how many hours they put in during the week. He asserted that “A hard day’s work deserves a fair day’s pay,” and that’s “how America should do business.”  This study, published in late 2013 by Jared Bernstein and Ross Eisenbrey of the Economic Policy Institute, increased the momentum for movement on this issue.

Conservative and Retail groups oppose this idea, claiming it will cost jobs and negatively impact the industry, including negative impacts on customer service.  The National Retail Foundation argues against the measure, saying their research indicates, “overtime expansion would drive up retailers’ payroll costs while limiting opportunities to move up into management. Most workers would be unlikely to see an increase in take-home pay, the use of part-time workers could increase, and retailers operating in rural states could see a disproportionate impact.”

Observers don’t expect this rule to be set into motion until 2016.

Read more at the New York Times here.

Copyright ©2015 National Law Forum, LLC

Supreme Court to Again Review Higher Education Affirmative Action Case

In a week full of front-page news, the United States Supreme Court has agreed to again review the appropriateness of the University of Texas at Austin’s race-based admissions process in the case of Fisher v. University of Texas at Austin.

The Supreme Court first reviewed the school’s consideration of race as a component of its admission process almost a year ago and remanded the case back to the Fifth Circuit Court of Appeals for reconsideration.  Upon re-review the Fifth Circuit again held the University’s practice of using race a factor in its admissions decisions was constitutional. Fisher filed an appeal arguing the Fifth Circuit did not follow the Supreme Court’s direction when conducting the subsequent review.

While the ultimate outcome of this case will certainly impact affirmative action programs of institutions of higher education, its effects on other types of non-admissions affirmative action programs, such as though enforced by OFCCP, remains unknown.

ARTICLE BY Laura Mitchell of Jackson Lewis P.C.
Jackson Lewis P.C. © 2015
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US Supreme Court Ruling Impacts Jail Operations

On June 22, 2015, the United States Supreme Court issued an important decision for all North Carolina counties operating county jails in which individuals are held detainees awaiting trial. In Kingsley v. Hendrickson, No. 14-6368, the Supreme Court, in a 5-4 opinion authored by Justice Stephen Breyer, ruled that in excessive force claims brought by pretrial detainees, the plaintiff need only show the force used against him was objectively unreasonable, not that the officer subjectively intended to injure him. This case is important because the court had never before articulated what standard applies to the excessive force claims of those individuals charged, but not yet convicted, of crimes. For private citizens not charged or convicted of a crime, the standard is one of objective reasonableness (someone being arrested). For prisoners who have been convicted of a crime, the standard is higher and requires the plaintiff to show the officer subjectively intended to cause the harm. As accused but not convicted individuals, pretrial detainees fall somewhere between these two categories, and the court determined the standard applicable to their excessive force claims should be the lesser showing of objective unreasonableness.

Kingsley involved the claims of Michael Kingsley, an individual who was arrested on a drug charge and detained in a Wisconsin jail. He failed to make bail, so he was housed in the jail waiting for his trial.  One day, an officer noticed a piece of paper covering a light fixture in Kingsley’s cell.  Kingsley was ordered to remove the paper, but he refused. The officers then handcuffed him and forcibly removed him from the cell. The parties disagreed over what happened next, with Kingsley claiming the officers slammed his head into a concrete bunk and the officers claiming Kingsley resisted their efforts to handcuff him.  Everyone agreed, however, that one officer deployed his Taser to stun Kingsley for approximately five seconds. The officers left Kingsley in the cell for fifteen minutes, then returned and removed the handcuffs. Kingsley filed a lawsuit alleging the officers’ use of force was excessive.  At trial, the jury found in favor of the officers, but Kingsley appealed, arguing the jury was instructed on an incorrect standard – that of subjective reasonableness.

The Supreme Court agreed. The divided court held a jury must consider whether the force was objectively reasonable, a determination that turns on the “facts and circumstances of each particular case,” taking into account the perspective of a reasonable officer on the scene, not with the 20/20 vision of hindsight. The jury should also consider the legitimate interests a jail has in maintaining internal order and discipline. But to find an officer liable for excessive force under the U.S. Constitution, a jury need not find an officer maliciously and sadistically intended to punish or injure the detainee. Rather, the question for a jury in a pretrial detainee’s excessive force claim is simply whether the officer’s use of force was objectively reasonable, without considering the officer’s intent. This will likely lower the bar for Plaintiffs bringing 1983 claims because the jury instruction for subjective reasonableness required them to prove the officer acted maliciously and sadistically, which is often very difficult to prove. Jurors should still be instructed that 20/20 hindsight can’t be used to decide this issue, but defendants may now have a harder time presenting these cases to juries.

© 2015 Poyner Spruill LLP. All rights reserved.
Wedding and engagement rings

Same-Sex Marriage Equality: What Employers Need to Know After Obergefell

Same-sex couples have a Constitutional right to marry and have their marriages recognized nationwide. In a 5-to-4 decision, the U.S. Supreme Court concluded that states are required to license a marriage between two people of the same sex under the Fourteenth Amendment. Obergefell v. Hodges, 576 U.S. ___ (2015). As a result, same-sex couples may now legally marry in all states. This ruling has massive implications, as rights and benefits extended to opposite-sex spouses will be available to same-sex spouses across the United States.

Marriage Equality Prevails

In an opinion authored by Justice Kennedy, the Court recognized that same-sex couples were not seeking to devalue the institution of marriage, but instead sought for themselves the respect, rights, and responsibilities that accompany a legal marriage. The Court held that under both the Due Process and the Equal Protection Clauses of the Fourteenth Amendment, same-sex couples have the fundamental right to marry.

The Due Process Clause provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” The Court determined that same-sex couples may exercise the right to marry under this Clause for four reasons:

  1. the right to make the personal choice of who to marry is inherent in the right of individual autonomy; choices concerning family relationships, whether to have children, and whether to use contraception are protected intimate decisions that extend to all persons, regardless of sexual orientation;
  2. the right of couples to commit themselves to each other and enjoy intimate association extends to same-sex couples just as it does to opposite-sex couples;
  3. protecting same-sex marriage safeguards children and families because without the recognition and stability of marriage, children of same-sex couples suffer harm and humiliation as well as material costs because of the stigma attached to “knowing their families are somehow lesser” than families of opposite-sex couples; and
  4. marriage is a “keystone” of our country’s social order and national community; governmental recognition, rights, benefits and responsibilities depend in many ways on marital status and same-sex couples should not be denied the benefits that accompany marriage.

The Court also ruled that the right of same-sex couples to marry is a liberty protected by the Fourteenth Amendment’s guarantee of equal protection of the laws. The Court admonished that state laws that ban same-sex marriage deny same-sex couples the benefits afforded to opposite-sex couples, disparage same-sex couples’ choices, and diminish their personhood. The Equal Protection Clause prohibits such “unjustified infringement of the fundamental right to marry.”

Recognition of Marriages Performed in Other States

The Court also ruled that a state may not refuse to recognize the same-sex marriages lawfully performed in another state. The result is that any lawful marriage that has already taken place in the United States, whether same- or opposite-sex, must be recognized in all 50 states.

What This Means for Employers

Multi-state employers that have been dealing with state-specific policies that were dependent on state-law recognition of same-sex marriages may now want to implement a uniform policy that applies to all locations. Here are steps you should consider in light of the legalization of same-sex marriages nationwide:

  • FMLA leave: Same-sex spouses will be deemed spouses under the Family and Medical Leave Act (FMLA) no matter where the marriage took place or where the employee resides. This means that you need to permit eligible employees to take FMLA leave to care for their same-sex spouse with a serious health condition, for qualifying exigency leave if the spouse is being deployed and other qualifying reasons. Update your FMLA policies, forms and practices to permit this leave.
  • Bereavement and other leaves: If you offer bereavement leave for the death of a spouse or in-laws, you should update your policy to reflect that this leave includes same-sex spouses and relatives of the same-sex spouse. If you offer any other leaves that define immediate family or extend to familial situations, such as non-FMLA medical leave or military leave, update those definitions as well.
  • Marital status discrimination: If you operate in states that prohibit discrimination based on an employee’s or applicant’s marital status, you will be prohibited from discriminating based on same-sex marriages.
  • Emergency contacts and beneficiaries: Employees with a same-sex spouse may want to update their emergency contact or beneficiary information listed on group life insurance or retirement plans. Be prepared to administer these changes.
  • Employee benefits: Group insurance, retirement and other employee benefit plans will need to be reviewed and updated. Be certain to consult your benefits attorney and plan administrators for advice on required changes.
  • W-4 Forms and tax updates: In light of potential income tax implications for newly recognized same-sex spouses, some employees may want to change their tax withholding information. Be prepared to update W-4 and state withholding amounts upon request.

These and additional policies and procedures impacted by the Court’s ruling may require that you update your employee handbook, policies on your intranet, plan documents, forms, beneficiary designations and other personnel documents. Be sure to notify and train your human resources professionals and supervisors on all changes.

The Court’s landmark decision grants “equal dignity in the eyes of the law” to same-sex couples. Take this opportunity to review your employment policies and practices so your company does the same.

Copyright Holland & Hart LLP 1995-2015.

U.S. Supreme Court Finds a Constitutional Right to Same-Sex Marriage: Implications for Employee Benefit Plan Sponsors

On June 26, 2015, the U.S. Supreme Court issued a historic decision in Obergefell v. Hodges, holding that the Fourteenth Amendment’s Due Process and Equal Protection Clauses require states to allow same-sex marriage and to recognize same-sex marriages performed in other states.  The decision comes exactly two years to the day from the Court’s decision in Windsor defining “spouse” to include same-sex spouses for purposes of federal law.

As a result of the Court’s decision, the existing 14 state bans on same-sex marriage are invalid, and same-sex spouses are entitled to all of the rights extended to opposite-sex spouses under both federal and state law.

From an employee benefits perspective, it appears thatObergefell may most significantly impact sponsors ofinsured health and welfare plans in states that currently ban same-sex marriage.  Employers and other plan sponsors in those states will be required to offer insured benefits to same-sex spouses because state insurance law will require that the term “spouse” be interpreted to include them.  Based on government guidance issued following the Windsor decision, it seems unlikely that the decision would have retroactive effect, though such claims are possible.

For sponsors of self-insured benefit plans, a question may exist as to whether Obergefell directly impacts a sponsor’s decision not to provide health coverage to same-sex spouses (because state law does not apply to such plans).  However, it would appear that there would be heightened risks under federal and state discrimination laws for plans that define “spouse” in a manner that is inconsistent with the federal and state definitions, particularly since the Court held that marriage is a fundamental right under the Constitution, and an ERISA preemption defense likely would be weaker in this new climate.

It is also noteworthy that, as a result of the Court’s decision, there will no longer be imputed income for state tax purposes with respect to employer-provided health coverage for same-sex spouses, allowing for consistent administration in all states in which an employer operates.  Since Windsor, there have not been federal tax consequences with respect to these benefits, but some states continued to impute income for state tax purposes.

Finally, with respect to federally-regulated benefits such as qualified retirement plans and Code Section 125 benefits (for example, flexible spending accounts), the Court’s decision does not necessarily warrant any change, since those plans have been required, since Windsor, to recognize same-sex spouses.  Of course, plan language should be reviewed for consistency with the decision, and employers in some states may find that there are new spouses seeking benefits under those plans.  There also will be some administrative and enrollment issues, similar to when Windsor was decided.

Employers, particularly those operating in states that currently ban same-sex marriage, should review their benefit plans and policies and consider whether any changes need to be made in light of Obergefell.  Some employers may also reconsider their domestic partner benefits programs now that same-sex couples have the right to marry and have their marriage recognized across the entire country.

We expect that there will be guidance from the U.S. Department of Labor and the Internal Revenue Service regarding the employee benefit plan issues that emanate from Obergefell, so stay tuned.

© 2015 Proskauer Rose LLP.

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Supreme Court Fair Housing Ruling: Will Plaintiff Housing Victory Help Employers?

Today, in a 5-4 decision, the Supreme Court made clear that disparate impact discrimination claims are cognizable under the Federal Housing Act (“FHA”) despite the lack of explicit language authorizing such a cause of action. Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.

In the process of justifying its ruling, the majority opinion spoke generally about disparate impact and cited to several prior rulings applying disparate impact in the employment context. The Court’s broader guidance on disparate impact liability may be helpful for employers faced with disparate impact lawsuits.

Brief Primer on Disparate Impact Law

Sometimes referred loosely as “unintentional discrimination,” disparate impact claims arise when an employer’s (usually) neutral employment practice has a disparate impact against a group protected by Title VII. For example, in the criminal background context, the EEOC asserts that failing to hire employees based on prior criminal activity has a disparate impact against racial minorities. These lawsuits are largely statistical in nature.

In a Title VII disparate impact lawsuit, the initial burden is on the plaintiff to point to a policy or practice that causes a statistical disparity. If the plaintiff establishes impact, the employer must then show that the policy or practice is job related to the position in question and consistent with business necessity. Over the years, with varying degrees of success, plaintiffs have argued that the “job related and consistent with business necessity” defense is a high hurdle. The Supreme Court itself has struggled to properly define this defense.

Welcome Words from the Supreme Court

In the Inclusive Communities majority opinion, the Supreme Court found the FHA disparate impact defense to be “analogous” to the Title VII defense. The court went on to cite to language from employment discrimination precedent indicating that the “job related and consistent with business necessity” defense should not be an impossible hurdle for employers:

  • Quoting the seminal Title VII ruling Griggs v. Duke Power Co.: an employer may maintain a practice which is a “reasonable measurement of job performance.”

  • Citing Griggs again: “policies are not contrary to the disparate impact requirement unless they are artificial, arbitrary, and unnecessary barriers.”

  • Stressing that limitations on disparate impact claims are “necessary to protect potential defendants against abusive disparate-impact claims.”

  • “Were standards for proceeding with disparate-impact suits not to incorporate at least the safeguards discussed here, then disparate-impact liability might displace valid governmental and private priorities, rather than solely removing artificial, arbitrary and unnecessary barriers.”

In short, the Court has provided support for employers to argue that an employer meets the “job related and consistent with business necessity” defense if its practice is reasonable and “necessary to achieve a valid interest.”

The majority opinion also provided explicit instructions to lower courts:

  •  To be on guard for disparate impact lawsuits that might interject “racial considerations” into decision making.

  • To hold plaintiff’s to sufficient pleading standards: “a plaintiff who fails to allege facts at the pleading stage or produce statistical evidence demonstrating a causal connection cannot make out a prima facie case of disparate impact.”

Time will tell if lower courts rigorously apply Inclusive Communities’ “safeguards” and “limitations” in the employment context. In the meantime, management attorneys will be doing their best to remind lower courts of the need to show restraint when evaluating disparate impact claims.

Jackson Lewis P.C. © 2015
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Obamacare Survives in 6-3 Vote – Supreme Court Issues Opinion on King v. Burwell

This morning, the Supreme Court of the United States issued its final decision on King v. Burwell regarding the survival of Obamacare. The decision, issued by Chief Justice Roberts and joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, effectively allows millions of people to to keep the tax subsidies provided so they can afford health insurance.

The Affordable Care Act (ACA) explicitly states that the tax subsidies were provided for individals to purchase insurance through state-based changes. The Court was charged with determining whether they could be used to purchase insurance through the federally run marketplace as well. The creators of the law contend that the law’s intent is to make affordable care available to people across the country through both channels by providing a federal exchange where states did not establish one.

The Court agreed -federal government can subsidize health insurance premiums for residents of states that did not establish a state health insurance exchange. In the Court’s opinion, Chief Justice Roberts wrote “The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral… It is implausible that Congress meant the Act to operate in this manner.”

Chief Justice Roberts reinforces the role of the Court – as an interpreter of the law, not its creator:

[I]n every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan. Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. (emphasis added)

This is a developing story. Please stay tuned for more updates and legal commentary.

SCOTUS Upholds Exchange Subsidies – King v. Burwell

Supreme Court Upholds Affordable Care Act Insurance Subsidies

Copyright ©2015 National Law Forum, LLC

Same-Sex Divorces in New Jersey

On September 27, 2013, in a landmark case for the state, Garden State Equality v. Dow, New Jersey Superior Court Judge Mary Jacobsonruled that the state must allow same-sex couples to marry. While Governor Chris Christie immediately stated that his administration would be appealing the ruling, he eventually withdrew his appeal, and the first same-sex marriages in the state were performed just after midnight on October 21, 2013. Prior to this date, same-sex couples were only allowed to enter into civil unions in the state, which were not recognized by the federal government.

Same-sex couples in New Jersey now have the same rights as opposite-sex couples. These rights are most frequently recognized during the divorce process; namely with regards to the equitable distribution of assets acquired during the marriage and alimony that may be paid to the dependent spouse. Both of these concepts are dealt with by the court and determined through application of a variety of factors. One of the most important factors at issue with same-sex divorces is the length of the marriage. Obviously, same-sex marriages are likely to be shorter in duration than heterosexual marriages simply because same-sex couples were not legally allowed to marry until almost two years ago, and were only permitted to enter into civil unions since 2007 when The Civil Union Act was signed into law by then-Governor Jon Corzine.

However, because same-sex marriage is a relatively new concept in New Jersey, there have been significantly fewer same-sex divorces in the state and, therefore, case law addressing the award of alimony and equitable distribution in same-sex divorces are in infancy and not yet developed.

N.J.S.A. 2A:34-23(b) provides for different forms of alimony and requires the court to consider a variety of factors, one of which is the duration of the marriage, in awarding alimony to one party. However, this is the exact scenario in which same-sex couples are more disadvantaged then heterosexual couples because they only received the right to marry.

Consider a hypothetical situation in which a couple is divorcing in 2015. They have been together as if they were a married couple since 2008, but were only officially married in 2014. How should the court address the “length” of the couple’s marriage? In reality, they have only been married for a year, but the relationship itself has lasted much longer. If the court took the “length of marriage” factor literally, construing it from the day of actual marriage (one year ago), the dependent spouse could be awarded a comparatively minimal amount of alimony, considering the relationship has existed longer than just one year. The dependent spouse could potentially argue that they should be awarded a greater alimony award because the court should consider the fact that they were not legally allowed to get married and this is why the marriage is technically so short. Again, same-sex marriage and thus, same-sex divorce, is in its infancy in the Garden State, so it is impossible to know precisely how a court will rule in a scenario like this.

Another issue is cohabitation. Same-sex couples in New Jersey have had no other option but to live together without legal recognition. While there have not been cases that have addressed pre-marital cohabitation in regards to same-sex couples, this issue has been addressed for the purposes of alimony as it relates to heterosexual couples. In McGee v. McGee, the New Jersey Superior Court, Appellate Division held that the “extent of actual economic dependency, not one’s status as a spouse, must determine the duration of support.” Therefore, because pre-marital cohabitation may be considered for the purposes of alimony in an opposite-sex divorce, it is likely that such cohabitation, especially for individuals who could not get married, will be a factor in same-sex divorces.

The argument regarding the “length” of a same-sex marriage in New Jersey is further complicated by the fact that civil unions have existed in New Jersey since 2007. In Lewis v. Harris, the New Jersey Supreme Court held that the State must provide the same rights and benefits of marriage to committed same-sex couples that were given to opposite-sex couples. The reason why this complicates the equitable distribution of assets and the award of alimony in same-sex marriages is because it weakens the dependent spouse’s argument that the marriage would have been longer had New Jersey permitted same-sex marriage to be performed. The supporting spouse could argue that marriage-like status (civil union) was available to the couple and they did not take advantage of the civil union because they did not have a desire to and, therefore, the “length of marriage” should be calculated from the date of the actual marriage, rather than the beginning of the relationship.

Just like the calculation of alimony, the equitable distribution of assets attained while in a same-sex relationship is also analyzed considering a factor of “length of marriage.”

Overall, alimony and equitable distribution in same-sex marriages is new territory in New Jersey. Because there is no case law on point explaining whether same-sex marriages will be calculated based on the length of the relationship, or the definite day of marriage, careful review of the specific facts of each case will be necessary to accomplish and fair and reasonable outcome for the divorcing parties. That is why it is recommended that you speak with an attorney to discuss the specifics of your case.

ARTICLE BY Megan E. Smith of Stark & Stark
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Gone, But Not Forgotten – A Deactivated Facebook Account Can Be Discoverable

Courts have long grappled with social media in a legal context. The struggle to understand social media issues — and to craft coherent applicable legal policy — renders Crowe v. Marquette Transportation Co. Gulf-Inland, LLC amusing to show how the less-than-honest actions of an employee-plaintiff can make these difficult legal questions fairly simple for a court.

In May of 2014, Brannon Crowe sued Marquette Transportation, his employer, for an injury to his knee that he claimed to have suffered in an accident at work. Interestingly, however, Crowe allegedly sent a co-worker a message on Facebook which stated that he received the injury during a fishing trip, and not at work. When confronted with the message to the co-worker by opposing counsel during a deposition, Crowe stated the account the message was sent from was Brannon “CroWe,” and it couldn’t be his because he didn’t have a capital “W” in his last name.

Facebook e-discovery in employment litigationAt the deposition, Crowe also said that he no longer had an account after the previous October, and his response to a discovery request for the contents of his account was that, in addition to such a request being vague, overbroad and unduly burdensome, he didn’t presently have a Facebook account. The court ordered Crowe to provide the contents of his account for the court to review in camera to determine if the contents of the account should indeed be discoverable. Later, however, Crowe’s counsel submitted to the court 4,000 pages of Facebook account information from the Brannon CroWe account, with an interesting wrinkle – the records of the account indicate that the account was deactivated – not deleted – four days after the discovery request for the account’s contents.

The court was understandably unamused, and suggested that the in camera review of 4,000 pages of Facebook account information would be a waste of time since this account information should have been produced earlier in response to Marquette’s request. The contradiction with Crowe’s testimony alone was enough to render the account information discoverable. Rather than review the documents fully in camera, the court ordered Crowe to turn over every single page of the Facebook account history to Marquette, as well as any login information for any Facebook accounts Crowe had at that time or in the past, and Crowe was ordered to consent to any authorization for Marquette to subpoena his Facebook information.

In effect, Crowe made the contents of the account discoverable through his attempts to keep it from being discovered, and that made the court’s decision on the issue clear. Luckily for Crowe, he only deactivated the account rather than deleted it, since he had a duty to preserve evidence in litigation. Spoliation of evidence is the negligent or intentional destruction or alteration of evidence that may be required in a lawsuit. Even though the evidence doesn’t look good for Crowe in the present case, had he deleted the account entirely, he would have been subject to the spoliation inference, which is a negative evidentiary inference in favor of the opposing party. A showing that a party has destroyed relevant evidence can lead to punitive sanctions against him as well.

Social media provides an abundant resource of data about a litigant, and both employers and employees alike should be a wary of even private messages sent to others in that context. When employees raise issues against employers in a legal setting, their interactions with coworkers on social media may be discoverable. This case also raises questions about how far those involved in legal proceedings can or should go to protect themselves with regard to their social media accounts. As courts become increasingly comfortable with the legal implications of social media and technology, issues such as evidence spoliation through deactivation and deletion will become more and more prominent as a trap for the unwary.

© 2015 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.

Kimble v. Marvel – Supreme Court Sticks With Brulotte Rule on Royalty Payments

In a rather breezy opinion filled with Spiderman puns and references, Justice Kagan, writing for a 6/3 Court, affirmed that Brulotte v. Thys Co., 379 U.S. 29 (1964) controlled the outcome of this dispute over Marvel’s decision to halt royalty payments on a web-slinger toy that it had apparently agreed to make “for as long as kids want to imitate Spider-Man (doing whatever a spider can).” Slip op. at 2. (A copy of the opinion is found at the end of this post.)

The toy was patented by Kimble, and the patent expired in 2010. The ninth circuit affirmed the district court’s grant of S.J. confirming that, in accord with Brulotte, a patentee cannot receive royalties for sales made after his/her patent’s expiration. Cert. was granted and the Court affirmed that stare decisis was operable to keep Brulotte as controlling law, particularly since the dispute involved statutory interpretation – [as opposed to, e.g., first amendment rights?] – and that Congress had rejected attempts to amend the law.

I posted on the “back-story” earlier – see here– so a lot of repetition seems unnecessary, but the Court spent some time discussing various work-arounds to the Brulotte bar. These include deferred royalty payments, licensing non-patent rights and alternative “business arrangements,” that universities and other developers of early stage technology might use to temper the loss of patent protection prior to the generation of maximum income from the patented technology. Slip op. at 5-6. Nonetheless, as Justice Kagan wrote: “Patents endow their holders with certain superpowers but only for a limited time.”

Click here to read the Supreme Court Decision in Kimble v. Marvel

© 2015 Schwegman, Lundberg & Woessner, P.A. All Rights Reserved.

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