A story in today’s St. Petersburg Times about a Department of Labor investigating the failure of a state agency to pay proper overtime, mentions lawsuits against the Department of Children and Families under the Fair Labor Standards Act.
While the federal government can sue states for violation of the FLSA, the Supreme Court has held that there is no private right of action against the state. See Alden v. Maine.
So at least right now, the employees are likely to lose their case, unless they can get the Department of Labor to take their case or there is a change in how the Supreme Court views these cases.
– City of Ontario, California v. Quon. This case involved a police officer’s text messages being reviewed by the City. The Court sidestepped the question whether public employees have an expectation of privacy, but in any event unanimously found that the city’s search of a worker’s text messages at issue in the case was reasonable under the Fourth Amendment.
– New Process Steel v. National Labor Relations Board. The NLRB due to political battles only had 2 members for a very long time. The NLRB should have 5 members. A majority of the Court held that a two-member NLRB does not have the legal authority to do the business of the board. This decision may have a major impact upon the Board, as there were over 500 decisions issued during the more than 2 years that the Board functioned with only 2 members.
Updated
The Huffington Post is reporting that Elena Kagan will be President Obama’s Supreme Court Nominee.
Unlike Justice Sotomayor who had at least some history for employment lawyers to look at to try to guess how she might decide issues, see here, Solicitor General Kagan does not any written opinions to look at. As a result, we look to things like the fact that while Dean of Harvard Law School, in 2004, she refused military recruiters access to campus facilities to protest the “don’t ask, don’t tell” policy. She also clerked for Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit and for Supreme Court Justice Thurgood Marshall.
One thing that I have been able to locate is that her student note was titled: “Note, Certifying Classes and Subclasses in Title VII Suits, 99 Harvard Law Review 619 (1986).” I think that this probably represents a good sign for employment lawyers.
The number of legal articles Kagan has writen is pretty slim. What she did write suggests an interest in First Amendment issues, again something that I take as a good sign for employment lawyers.
- Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 University of Chicago Law Review 413 (1996).
- When A Speech Code Is A Speech Code: The Stanford Policy and the Theory of Incidental Restraints, 29 University of California at Davis Law Review 957 (1996).
- Confirmation Messes, Old and New (Book Review), 62 University of Chicago Law Review 919 (1995).
- Regulation of Hate Speech and Pornography After R.A. V, 60 University of Chicago Law Review 873 (1993). An abbreviated version of this article appears in Laura Lederer and Richard Delgado, eds., The Price We Pay (Hill & Wang 1995).
- The Changing Faces of First Amendment Neutrality: R.A. V v St. Paul, Rust v Sullivan, and the Problem of Content-Based Underinclusion, 1992 Supreme Court Review 29.
I will continue to see what I can locate on Solicitor General Kagan.