Joel Dillard

Representing Mississippi Workers

The Mississippi Workers' Rights Blog



It is a crime to retaliate against a public employee for doing her job.

In my never-ending search for ways to protect the free speech rights of employees, I have recently developed a legal theory that I think has a lot of promise.

The problem: the law protecting internal whistleblowers in state/local government is weak or nonexistent

The problem is that, as discussed in a prior post, a government employee's whistleblowing up the chain of command is not protected by the First Amendment of the U.S. Constitution. And as discussed in another post, only official discipline is considered retaliation under the First Amendment. There is a Mississippi Whistleblower Protection statute, but it also only applies to a small category of protected speech - typically reports to specific public officials like the AG, DA, etc. that most whistleblowers never think to call.

After all, most government employers have strict (and illegal) rules prohibiting reporting misconduct outside the Agency, and act as if they have an open door policy (whatever that means) for reporting up the chain of command or to HR. (Guess what, it's a trap!) Which means that most whistleblowers have only made their reports internally. There are a lot of serious limits on our ability to protect these whistleblowers in state and local government using the U.S. Constitution.

The solution: McArn plus Miss. Code § 97-9-127

In Mississippi, the tort of wrongful discharge is named after the case​McArn v. Allied Bruce-Terminix Co., Inc., 626 So. 2d 603 (Miss. 1993). Under the​McArn doctrine, as subsequently developed, it is tortious to terminate any person’s employment because the employee reported a crime - either internally or externally. Morris v. CCA of Tenn., LLC, (Cause No. 3:15-CV-00163-MPM-RP​)(N.D. Miss. May 16, 2017).

So far so good. That solves the problem for reports up the chain of command. These are protected by McArn. But the trouble is that most such reports by whistleblowers are not necessarily of a crime - at least, you would not think so initially.

But what is very common is that the whistleblower makes a first report of misconduct, is threatened by the supervisor, and then reports both the threat and the original misconduct further up the chain. The key point here is that now we just may have a protected report of a crime on our hands. The key question is what the threat was. If the thing threatened is unlawful - not necessarily criminal - then the threat is a crime. If the employee is later fired, there may be a real McArn claim.

The crime is Retaliation, Miss. Code § 97-9-127. It is much, much broader than retaliation is under the First Amendment. A person commits the offense of retaliation if he intentionally or knowingly harms or threatens to harm another by any unlawful act in retaliation for anything lawfully done in the capacity of public servant, witness, prospective witness or informant. Retaliation is a Class 2 felony. Young v. State, 119 So. 3d 309 (Miss 2013) (holding that the threat itself need not be unlawful, so long as the threat is to do an unlawful act);​Wilcher v. State, No. 2015-KA-01008-SCT (Miss. March 23, 2017) (upholding statute from constitutional challenge). In the statute, threats are defined as any menace, however communicated and harm is defined as loss, disadvantage or injury, or ​anything so regarded by the person affected. This would clearly include threats to fire or discipline. (It may be possible to use the statute more directly to establish a public policy exception for terminations for reporting non-crimes as applicable to public employees.) As one court said, [i]n the court's view, this state law authority may well buttress plaintiff's state law claim that his termination was in violation of Mississippi public policy.Boisseau v. Town of Walls, Miss., 138 F. Supp. 3d 792, 808 (N.D. Miss. 2015). And the employee does not necessarily have to know about the statute to benefit from it, as long as he makes a good faith allegation of retaliation. Roop v. S. Pharm. Corp., 188 So. 3d 1179, 1188 (Miss. 2016). Though it still isn't airtight by any means, it solves many of the key problems with the First Amendment and McArn cases.



Free Speech Fundamentals: How bad does it have to get before you have a retaliation lawsuit?

The firm is pretty preoccupied right now with the issue of free speech, particularly the free speech rights of government employees. It is something we've written about before. (Links are at the bottom of this post.)

The issue for today is: how bad does the retaliation have to be for you to have a federal case for free speech retaliation? The Supreme Court gave one answer in an interesting footnote, the First Amendment . . . already protects state employees . . . from even an act of retaliation as trivial as failing to hold a birthday party for a public employee . . . when intended to punish her for exercising her free speech rights. Rutan v. Republican Party of Ill., 497 U.S. 62, 75 n.8 (1990) (quotations omitted).

What have the courts done with that? The answer: it depends where you live. The courts are split on the issue. In almost the entire country, there is one answer, but in Mississippi, Louisiana, and Texas we have a different answer.

Most places have tried to scale back a little bit on that broad language. They say that only things which would actually deter speech are actionable. In New England, the court said the question is whether an employer's acts, viewed objectively . . . would have a chilling effect on the employee's exercise of First Amendment rights. Barton v. Clancy, 632 F.3d 9, 28 (1st Cir. 2011). In the upper Mid-Atlantic, the court said the question is whether the alleged retaliatory conduct was sufficient to deter a person of ordinary firmness from exercising his First Amendment rights. Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000). In the Mid-West, the court said that anything likely to deter the exercise of free speech is actionable. Power v. Summers, 226 F.3d 815, 820 (7th Cir.2000). And in the West and West Coast the court has said the same. Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000);Dahlia v. Rodriguez, 735 F.3d 1060, 1078-79 (9th Cir. 2013).

But what about here in the freedom-and-small-government deep south? Surely the Fifth Circuit - which covers Texas, Louisiana and Mississippi - will be true to the Supreme Court's dicta on this one.

I'm joking, of course. The Fifth Circuit's version of the analysis is far worse. Only official discharges, demotions, refusals to hire, refusals to promote, and reprimands are actionable.​Pierce v. Texas Dept. of Crim. Justice, Inst. Div., 37 F. 3d 1146, 1149 (5th Cir. 1994). Even oral threats or abusive remarks and investigations are not actionable retaliation. Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000). Even though it is pretty obvious that this retaliation would frighten and silence the employees, the court does not care. The court has declined to expand the list. . . . noting that some things are not actionable even though they have the effect of chilling the exercise of free speech, because expanding the list may enmesh federal courts in relatively trivial matters. Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000).

Let that one sink in. Apparently, the Breaux court thinks chilling free speech is a trivial matter. As wrong-headed as it may be, the Fifth Circuit's test does have one benefit - it is (in theory) pretty easy to apply. Any official disciplinary action is covered, and anything else is not. For example, in Harris v. Victoria Independent School Dist., 168 F. 3d 216 (5th Cir. 1999), the court held that a teacher had retaliation case because, among other things, she was given an official reprimand by her supervisor because of her protected speech.

The term “reprimand” in the caselaw is a business term used in the sense of the act of telling somebody officially that they have done something wrong, whether verbally or in writing. Cambridge Business English Dictionary, Cambridge University Press, 2011. Of course, every employer uses its own language to describe this kind of discipline - and some may have reprimands in many different flavors with different names indicating different severity. They may call it an admonishment or a counseling or a write-up or a reprimand, but this is not the legal issue: the legal question is whether this is employment discipline by the employer itself or mere criticism on the supervisor’s own initiative.

More on free speech of government employees:



Civil rights and the Church's own employees

While Bostock gets all the headlines - and rightly so - a couple of other short opinions from the Supreme Court this term on religion in the workplace have caught my eye.

First is Our Lady of Guadalupe School v. Morrisey-Berru. In this case, the Supreme Court decided that it was unconstitutional to protect religious school teachers from age discrimination, disability discrimination, and other civil rights violations. This was because it is a violation of the Church's First Amendment rights to interfere in any way in questions of administration concerning the Church's ministers - a doctrine known as the ministerial exception.

I agree that there should be a strong ministerial exception. The last thing we want is government involvement in internal Church affairs. But I think the Court got this particular case wrong.

First, clear rules are needed. The Supreme Court frequently fails to understand that, practically speaking, they don't get to make most of the decisions. A collection of diversely biased lower court judges do. By refusing to adopt a bright line and using a vague standard, there will be great danger that the courts will vary the test according to how much each judge likes the religion at issue - a terrible result from a Constitutional perspective. In my view, both majority and dissent missed the mark on this point.

Second, the two employees here were pretty typical school teachers. Although the Court said they educated their students in the Catholic faith, the school did not even require them to be practicing Catholics - let alone avowed religious - to have this job. Yet the Court said they were ministers protected by the exception. This seems bizarre. The Church is basically saying we have decided not to regulate these teachers' religious life; that would seem to me to be disclaiming a ministerial exception.

I wonder if Catholic hospitals could take doctors and nurses under the ministerial exception by simply requiring them to conform end-of-life patient advice to the teachings of the church? Or perhaps by requiring them to post religious messages in the hallways? This could be pretty broad.

In my opinion, the rule should be that the ministerial exception applies to every single employee that is required to be a member in good standing of the religious organization in order to have the job - and to no one else. It ties the exception to a clear indication that the Church has decided that the religious life of this person is relevant to the job. It makes for a clear and bright-line rule. Most religions have some kind of criteria for inclusion or membership, even though the level of formality varies.

And for those religions that have no membership or inclusion/exclusion criteria at all, I cannot see why they would need a privilege to exercise a power to exclude that they have religiously chosen to abandon. This would also have the benefit of encouraging each church to clearly choose: is this particular part of the organization doing a truly religious function? If so, then why would they think someone who is not even religious could do the job?



Homosexuality and Bostock's sex discrimination analysis

You may have heard something about our subject for today. As the headlines shouted it Supreme Court outlaws discrimination against gays or something like that. And yes, that is the most important practical element of the Court's decision. It is something that a lot of people have been working on for quite some time - including here at this firm, as we have discussed more than once on this blog.

But the headline just scratches the surface. Most people probably do not realize just how important this case will be - and for reasons that having nothing to do with homosexuality. It will probably be cited tens of thousands of times in the next few years, often in cases having nothing to do with sexual orientation. I've already cited it twice, and the case has only been out a week or so. The logic of the case is revolutionary - simple, but transformative.

The key is the word because. Title VII says an employer cannot discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin. As I have said previously, the logical view is that this means that any employer action which differentiates between the sexes is unlawful sex discrimination.

In Bostock the Court agreed. It interpreted because as meaning a strict kind of what is called but for causation. The analysis is simple: if you imagine the same person in the same situation, and simply switch the sex, would they be treated differently? If so, this is discrimination because of sex. It does not matter what else is going on, what other factors are at play. Thus, it isn't discrimination based on homosexuality which is illegal, per se. It is just that discrimination based on sexual orientation will typically also be sex discrimination. It's about biological sex, not sexuality.

For example, imagine a man named Pat is fired. Is it discrimination? To find out, just imagine Pat were a woman. Change absolutely nothing else. Would Pat still have been fired? So, for example, if Pat is fired for sleeping with Larry. Does it matter that Pat is a man? If the answer is yes then this is sex discrimination. If the answer is no then it is not. No matter why the answer is what it is, the mere fact the answer is different because Pat is a man means it is discrimination against Pat for being a man - not for being gay necessarily, but for being a man.

This logic has surprising consequences. To take one example, there will be no more man's dress code and woman's dress code: no man can be penalized for wearing hair or clothes that meet the woman's dress code, or vice versa. Decades of caselaw goes out the window. Willingham v. Macon Telegraph Publishing Co., 507 F. 2d 1084 (5th Cir. 1975).

In fact, at first glance the decision would appear to mandate complete sex-blindness by employers. (One minor exception remains the Bona Fide Occupational Qualification (BFOQ), which we've discussed before.) Putting aside the BFOQ, any rule or decision which - even in an indirect or circuitous way - acknowledges the existence of sexual differences between employees needs careful consideration.

So, to take an even more surprising example, those subject to the Act can no longer penalize people for joining single-sex clubs.

What does this mean for efforts to combat discrimination - particularly sexual harassment? Does this mean the employer cannot see sex differences when trying to eliminate discrimination in the workplace? Not quite. It can consider the sex of the victims, but not the sex of the perpetrator.

Lets revisit Pat. If Pat supervises two employees, Nancy and Tom, and Pat treats Nancy much better than Tom because Pat prefers women, then the employer can fire Pat for doing so - as long it would fire Pat regardless of whether s/he is herself a man or woman. It is not about Pat's sex, but the sex of Pat's victims.

Back to an employer having a rule punishing people for joining same-sex clubs. Here we are getting into weird, speculative considerations. But suppose Pat joins the Drones club. The club has a rule that only men can join. If Pat were a woman and successfully managed to join, she would not be punished. But because Pat is a man, he is punished. Thus the punishment is itself discriminatory. What then, can be done to combat this kind of sex discrimination without committing sex discrimination in the process? Change what you are penalizing Pat for. Don't penalize Pat for joining the Drones, penalize Pat (when Pat is on the admissions committee of the Drones) for refusing to admit Nancy while admitting Tom. This is not about Pat's sex - you would penalize Pat for discriminating against Nancy regardless of whether Pat was a woman - but about the sex of Pat's victims, which is an acceptable consideration.

Finally, note that the same logic applies to race. Anything other than pure race-blindness will be entering a mine-field - regardless of the employer's good intentions. It will be interesting to think about the consequences there. Suppose a supervisor named Derrick posts on Facebook There is no country on earth where black people have more opportunities than America. Anyone who disagrees can just get out. Hard to imagine Derrick's own race won't determine whether the employer punishes Derrick. And how should an employer treat employees that join a racially exclusive club?

And religion may be an even more fascinating area.



Free Speech Fundamentals: Government employees have free speech rights only when they speak as private citizens.

The Supreme Court has said that government employees do not leave their constitutional rights at the door when they go to work. They have the same rights to free speech as any other citizen. But things can be tricky because - in a sense - they are the government. And the people in charge in government are supposed to be able to control what the government does, including its speech. In other words, when government employees speak, and the speech is part of their job as government employees, then the government boss can control the speech as it wishes.

This is the reason for the Supreme Court's Garcetti rule. Among other things, the Garcetti rule says that a government employee's speech is protected only if they are speaking as a private citizen, and not as a public employee.

This should be pretty straightforward. It should mean that PR people and others with responsibility for speaking to the public or the media are unprotected when engaging in that public speech. Unfortunately, the Court has interpreted it far too broadly, to include even purely internal speech, such as when an employee blows the whistle on a supervisor's misconduct by reporting it up the chain of command. The Court says this is usually part of the government job, and so unprotected.

But there is a limit. When an employee goes outside the chain of command and blows the whistle directly to the public or the media, it is typically not part of the job. The courts have made it quite clear in caselaw interpreting Garcetti that when a public employee takes his job concerns to persons outside the workplace in addition to raising them up the chain of command at his workplace, then those external communications are ordinarily not made as an employee, but as a citizen. Davis v. McKinney,​518 F.3d 304, 313 (5th Cir. 2008). This remains true when speech concerns information related to or learned through public employment. Lane v. Franks, 134 S. Ct. 2369, 2377 (2014). The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties. Id. at 2379.

One interesting Fifth Circuit case on this point is Anderson v. Valdez, 845 F. 3d 580 (5th Cir. 2016). In​Anderson, a staff attorney for a state court sent a letter to the state supreme court and filed a disciplinary complaint with the State Commission on Judicial Conduct describing what he believed to be malfeasance by one of his bosses. His boss (the judge he had reported) retaliated by preventing him from working with another judge. The Court held that it was well established law that these sorts of complaints to people outside the employer are typically speech as a private citizen, and thus protected by the First Amendment.

Unfortunately, however, that was not the end of the saga. Three years later (five years after the retaliation) the case was still dragging on, and the employer tried again to throw the case out and made a slightly different argument. Anderson v. Valdez, 913 F. 3d 472 (5th Cir. 2019). This time the government claimed that the staff attorney had promised - as part of his job duties and oath of office - that he would report misconduct to the state commission. For this reason, the report was part of his job and not speech as a private citizen. This time, the Fifth Circuit agreed with the employer and noted that this was an exception to the usual rule. Because his job duties specifically included reporting to the commission it was not protected speech.

The Anderson saga provides many, many lessons for us as lawyers - sad, unfortunate, cynical lessons. But for the employee the main lesson should be to take great care to consult with an attorney about what will and will not be protected speech if you are planning to go out on a limb and blow the whistle on your boss. The steps you need to take are likely to be counterintuitive.

This post is part of a series on free speech rights of government employees. Read the rest below:



Appellate advocacy

You'd like to have a little help...

Here you are, finally, after working your tail off in discovery and intense preparation, ready to try the case, ready to win. You're a magician on cross examination, and the jury eats out of your hand... then the Judge screws it up. Everything now depends on the appeal. A cold, distant battle of legal intellects, virtually all on paper, is the only hope to save your case.

But you're a trial lawyer. Treatises and libraries are not your thing. Besides, you've been working on this case for so long you can no longer see it objectively. The arguments feel obvious, tired and rote.

As a judge I know once said, It is easy to tell when the trial lawyers are pursuing their own appeal. They are too close to the case, and they don't really understand how appellate judges think.

So you need to get a fresh perspective. Maybe you could convince some appellate nerd out there to do the appeal for you?

I'm here to help out.

If this is you, I'd be happy to help. Over the last decade-plus, I've had the opportunity to clerk for Judge Timothy B. Dyk on the Federal Circuit Court of Appeals and to litigate on behalf of the federal government in appellate courts all over the country. I love legal treatises and libraries to an almost unhealthy extent. I once spent the better part of a month-long vacation in the Library of Congress researching intellectual property law. For a time I read every single Supreme Court opinion which came out (around 2,000 pages per year).

Of course, I no longer have time for such excesses of legal nerdery. I have a robust private practice in plaintiff's-side employment law. So why am I offering to help you with this work? Because, though I love trial work, my favorite part of the job remains legal research and briefing.

As for the terms, I'm happy to discuss a variety of options with you, including hourly, flat-rate and - in the right case - a hybrid contingency arrangement to help limit up-front costs.

And not just on appellate briefing. If you are facing a legally complex dispositive motion and need help, let me know.

Work samples



Poker: Lawyers playing games in litigation

Studying games is a good way to understand strategy in real life situations - including in litigation. We discussed the ultimate game of perfect information - chess - last time. Today, the opposite: poker.

Poker: incomplete information, probability and psychology

Chess we described as a game of perfect information and no luck. In poker we find things quite different. In, for example, Texas Hold'em, you start betting when you only know two of the cards in play, when there are going to be 2x + 5 cards in play by the end of the hand. The game depends on two qualities in the player:

Probabilities in poker

Before you can even begin guessing who is bluffing and how to play your hand, you have to know how strong it is. The simplest part of this task - that every casual player can manage - is to know which hand you have, and which other hands it wins and loses to. This is fundamental, like understanding how the chess pieces move.

Next you have to know during the game the probable strength of what you will have when the hand is over. For example, before any cards are laid down, which has better chances to win, a pocket pair of 10s or AK - and how much better? Later on, what are the chances that you complete your flush on the turn or the river? or your straight? You cannot bet intelligently without knowing the answer.

At the final level of statistical sophistication, you can improve further by understanding not only your own probabilities, but, based solely on the cards on the table (and in your hand), the probabilities of the strength of hand of other players.

Once these probabilities are mastered, you can generate a theoretically correct value for each hand at each moment. This is the baseline of information needed to decide how to bet. Most casual players do not take advantage of all this reliable information revealed by the game.

In a very short game, luck outweighs probability and it doesn't matter so much. But as more hands are played, the balance shifts. In theory, over an infinite number of poker hands, the end result should approach that of true calculation.

Betting psychology

Psychology begins with the player understanding and managing himself. How do you react to an unlucky loss? How do you react to a win? A strong grounding in the probabilities helps manage these tendencies.

And then we get to what most people think of as the essence of poker: unreliable information. This comes in two types: information from the bets themselves, and information from tells and other understandings of psychological tendencies.

Is that big bet a sign of confidence in a strong hand, or a bluff designed to drive out the competition and win by default? Is a small bet a sign of weakness, or is it designed to increase the size of the pot by keeping people in the game for longer?

Then there are tells, the most famous element of poker. This is how the pros eat the online poker nerds at the table in Vegas. It involves reading another person's physical mannerisms for information about their emotional state and thus the strength of their hand. Experience and close observation reveal tells over time. Sunglasses, hats, carefully maintained breathing and posture, and even video replay review - these are the tools used at the highest levels to try to limit a player's own tells.

Poker and litigation

Litigation is more like poker than chess, especially in two crucial phases. First, in the pre-trial phase, during discovery, all the participants have incomplete information and must make intelligent guesses of how to value the case, and where to look to improve its value. Later, at trial, the psychology of the jury becomes key. In voir dire, the lawyers read tells to help pick a jury. And during trial, the lawyer is always probing where the jury is psychologically and adjusting his approach in response.



Chess: Lawyers playing games in litigation

Studying games is a good way to understand strategy in real life situations - including in litigation. And what better games to study than two of the all-time greats: chess and poker?

Chess: perfect information and imperfect players

The two key things to realize about chess are that it is - in theory - a game of perfect information and no luck.

More than that: there is a database containing every significant game ever played for decades - including every significant game you have played, and that your opponent has played. Before you play a game, you and your opponent each have the opportunity to study this information in any way you like in order to prepare.

And even beyond that: in today's game you and your opponent will each have access to supercomputer programs that are far better at understanding and playing chess than any human ever has been. Before the game, you and your opponent each have the opportunity to learn from these computers and the way they analyze games.

So what determines the outcome? Our limits and imperfections as players.

There are at least four ways to win (or lose): Tactics, Preparation, Strategy, and (lets call it) Luck. First, if you can see further ahead tactically than your opponent, you will probably win. You will be able to see when your opponent has made a mistake and how to punish it. You will be able to see opportunities and threats that your opponent will overlook. You can set traps: inviting-looking moves that appear to win immediately, but which in fact end up losing just a few more moves down the road.

To win this way, you must have strong logical powers, short-term memory capacity and raw cognitive speed - what they call calculation - as well as practice in recognizing tactical patterns in the game. In forcing lines - where there are only one or two choices that make any sense in a series of moves - the best players will be able to calculate a dozen moves or more down the road to see who comes out ahead. The same is true in endgames, where there are only a few pieces left. But no matter how deeply you calculate, if you overlook just one option along the way, it could cost you the game.

Second, you can win a game by being better prepared than your opponent, studying particular lines in the opening that they will not expect and surprising them with some home-cooked preparation that you understand better than they do.

To win this way takes a lot of research and private study of games, analyzing different options to great depth. It also requires a nearly perfect long-term memory, so you can carry all that information with you into the heat of combat in every game.

Third, you can win if you have a better strategic understanding of certain situations. Things like what tends to makes a pawn weak, whether it is better to have an open or closed position given the placement of the pieces, which spaces or sides of the Board will be most critical to control, whether it is better to get a material advantage or the initiative in a given moment, where to put pieces now so they will be most effective later in the game.

When players are evenly matched in tactics and preparation, strategy will usually decide the outcome. This requires a very different kind of study than preparation. This is about studying and understanding the reasons behind different moves and ideas. This is also where the greatest rewards of thoughtful experience are found. Trying ideas and seeing what happens, analyzing your positions, helps develop an intuition about what works and doesn't strategically in a game, a general sense that a certain situation calls for pursuing a certain idea for how to improve the position.

Lastly, there is what I have called luck, but which really isn't luck at all. Remember, there is no luck in chess, no chance events, no accidents. This is actually about psychology. For example, if you happen to lose a brilliant strategic game by a stupid tactical mistake, it can be hard to forget it and move on to the next game. You can go on tilt, where you find yourself unable to focus properly, and so make a series of additional mistakes. A player can also get tired, sick, hungry, or distracted for any other reason. Or perhaps someone underestimates you, and takes a risk that they don't think you will be able to punish them for, and you manage to find the right way to respond. In this way great players can lose to lesser ones. Or perhaps they take a risk that it seems like you ought to be able to punish, and you overpress trying to take advantage, and wind up with greater weaknesses yourself as a result. Or maybe someone is, because of the tournament situation or a psychological reason, too desparate to force a win when they should be content with a draw. They can wind up losing.

Chess and litigation

Trial practice is most like chess after the discovery process is concluded, when (in theory) all the information that can be presented at trial has come out and there are no more secrets lying in wait. The Judge and the opponent are known quantities. Their past actions are all public, on the docket, ready for study. The jury is unknowable - they are more like a toss of the dice - but there are some similarities to a game of perfect information at this point. The same four elements are key: Tactics, Preparation, Strategy and Luck.

But before trial itself, probably the better model is poker. That will be the subject of our next post.



The new paid leave law for coronavirus, in plain english

Between April 2, 2020 and December 31, 2020, certain amounts of mandatory paid leave will be available to certain employees under federal law. This is the result of H. R. 6201, called the Families First Coronavirus Response Act. But as usual, news reporting is weak and unclear, and the law itself is very technical and a mess to read. The law has eight sections and the text is forty-three pages long. And you basically need to already know what it says - and what both the Fair Labor Standards Act and Family Medical Leave Act say - in order to understand it.

Want to know what the law says in plain english? You are in the right place.

The law has some significant appropriations to health departments in the government, sections addressing free/reduced school lunch during Covid-19 school closures, unemployment insurance, free Covid-19 testing, and other important issues. But our focus right now will be on the sections dealing with leave.

There are two completely separate types of Covid-19 leave in the law. The first is broad but short, and gives two weeks paid leave for various Covid-19 impacts. The second is much longer, but deals only with leave to care for children during school/daycare closure. (A third section gives a tax credit to employers to pay for the leave. We won't be discussing it here.) The two provisions are very different, and so it is crucial to avoid getting the different requirements and benefits mixed up.

But at the outset it is important to note three big limits in the law. First, the law does not apply to large employers (more than 500 employees). Second, the application to small employers - those with fewer than 50 employees - is at this point a bit unclear (as will be discussed below). Third, it is also inapplicable to healthcare employees and those working in emergency response. With that said, let's get down to it.

DIVISION E: Two-weeks Covid-19 paid leave

You are entitled to two weeks of fully- or partially-paid coronavirus leave for any of the following reasons:

  1. You are issued an official quarantine order from any government body (full pay, but capped at a max of $511 per day)
  2. A treating doctor or nurse has advised you to self-quarantine (full pay, $511/day cap)
  3. You have symptoms of Covid-19 and are going to get diagnosed (full pay, $511/day cap)
  4. You are caring for someone (anyone?) on quarantine or self-quarantine under #1 and #2 above (2/3rds full pay, $200/day cap)
  5. You are caring for your son or daughter during a school/daycare Covid-19 closure (2/3rds pay, $200/day cap)
  6. Other circumstances (looks like HHS will make a rule defining this) (2/3rds pay, $200/day cap)
Some key points about this leave:

Lastly, there is one great big caveat. The law authorizes DOL to issue a rule to exempt small employers when the leave would jeopardize the viability of the business as a going concern. At this point, it is completely unknown what this will mean in practice. I have doubts that a blanket exemption of businesses with fewer than 50 employees would pass judicial review, but it is difficult to tell at this point how DOL (or the judiciary) is going to approach this issue.

DIVISION C: Longer leave for school/daycare closure due to the pandemic

The second type of leave is described in Division C of the Act. It provides for a longer period of leave (as under the FMLA), but it is only available if the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency. In other words, this only covers leave to watch your child during a school closure. Leave for your illness or others' illnesses is still limited to the normal unpaid FMLA leave. This does not provide paid leave to avoid exposure or practice general social distancing.

It also does not apply if you are able to telework. Which means that you will be expected to watch your children while working from home. (It is unclear how employer rules prohibiting this will be applied. If the employer has a rule which prohibits simultaneously teleworking while providing childcare, then the employee is probably eligible for Covid-19 leave from work for school closures. Practically, I expect this means the employers will suspend this rule during the outbreak.)

School-closure leave: Paid or unpaid? Both.

The first 10 days of school-closure leave is unpaid - likely because you are expected to take your general Covid-19 leave under Division E during this time. In addition, if you have accrued annual or sick leave you can use it during these ten days to get paid. After that, the leave is still only sorta paid leave. It is actually only 2/3rds pay - not full pay - and is capped at $200 per day and $10,000 total per employee during the closure.

School-closure leave: Employers and employees covered

Unlike the one-year period under the FMLA, leave under this section is available to an employee who has been employed for at least 30 calendar days.

As for which employers are covered, on its face it initially looks like almost all will be. But this is an area where the language and intent of Congress has gotten awfully confused.

First of all, once again, mega employers with over 500 employees are not covered. And DOL is authorized to pass a rule exempting employers with fewer than 50 employees when the law would jeopardize the viability of the business as a going concern.

Second and even more problematic, if an employer with fewer than 50 employees breaks the law, the employee cannot sue in court. Instead, it looks as though the only way the employee can enforce this part of the law against an employer with fewer than 50 employees is to bring a complaint with DOL and convince them to initiate an enforcement action.

One final note, by the way, I love Congress.gov. The Mississippi legislature should take note. Our legislature's methods, record-keeping and public information platforms are about a century out of date. In addition to its bizarrely session-focused procedures and deadlines, there is no legislative history, no real way to track what is happening and what it means. We should all be deeply embarrassed for them. I think it is time for a reboot.



The NLRB gaslights labor lawyers with its absurd Alstate Maintenance decision.

For some time now I’ve been meaning to write about the National Labor Relations Board’s decision in Alstate Maintenance, LLC, 367 NLRB No 68, which came out last year. But I just can’t.

It’s too outrageous. I cannot even fathom how the Board somehow thinks it is free to rewrite Supreme Court decisions. This issue was settled, resolved, completely put to bed by perhaps my favorite case of all time, NLRB v. Washington Aluminum, 370 U.S. 9 (1962).

And the majority doesn’t even mention it. It makes no effort to try to distinguish or explain what it is doing on this backdrop. Almost like the majority is completely unaware of the case. Which they aren’t. Every single one of those guys read this case in law school, I can promise you. And the dissent, in the very first sentence, pointed out the great big Washington Aluminum problem the majority was ignoring.

Thing is, they could confront the issue and explain their reasoning, try to explain why Washington Aluminum proved unworkable, or somehow problematic, and justify a change in the rules. But they cannot just ignore it. They just can’t.

In Washington Aluminum an employee said to his coworkers something to the effect of it is too cold in this factory with the heaters broken, we can't work in these conditions. Lets get out of here. And they left. This was concerted activity, because they acted together to address an issue at work.

In Alstate Maintenance an employee (a Skycap) said to his coworkers something to the effect of these guys don't tip, and they are always terrible to work with, let's not serve them. And so they refused them service. The Board said this was not concerted because... I don't know, um, reasons? I still cannot tell what the actual reasoning is here.

I could see saying what the Skycaps did in Alstate Maintenance was perhaps unprotected if they crossed the line to inappropriate conduct, but to say it was not CONCERTED? They f....... I mean, they walked off. THEY walked off. As a group. TOGETHER. That’s what concerted means. It was literally the facts of Washington Aluminum. And it was obviously about the terms and conditions of work. Tips are compensation under the FLSA. To say they are just a matter between the customer and employee is basically making every customer harassment or mistreatment case outside the purview of the Act. Every single sentence in Alstate Maintenance makes me feel like I’m losing my mind, like somehow maybe I’m the crazy one, as if I’m missing something somewhere. The Board is gaslighting me.

So I guess I’m not going to write a blog post about Alstate Maintenance. I just cannot handle it right now.

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