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    The Lawletter Blog

    Suzanne L. Bailey

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    EMPLOYMENT LAW: EPA Prohibits Using Prior Salary in Establishing Initial Pay

    Posted by Suzanne L. Bailey on Thu, Nov 29, 2018 @ 10:11 AM

    The Lawletter Vol 43 No 7

    Suzanne Bailey—Senior Attorney, National Legal Research Group

                The Equal Pay Act ("EPA") provides as follows:

                No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to . . . (iv) a differential based on any other factor other than sex[ .]

    29 U.S.C. § 206(d)(1) (emphasis added). 

                The Ninth Circuit Court of Appeals has stated that "[t]he [EPA] stands for a principle as simple as it is just: men and women should receive equal pay for equal work regardless of sex." Rizo v. Yovino, 887 F.3d 453, 456 (9th Cir. 2018) (en banc), pet. for cert. filed (Aug. 30, 2018), pet. for cert. docketed (Sept. 4, 2018).  The Act "'creates a type of strict liability' for employers who pay men and women different wages for the same work: once a plaintiff demonstrates a wage disparity, she is not required to prove discriminatory intent." Id. at 459 (citation omitted). The employer can avoid liability, however, by establishing one of the four affirmative defenses enumerated in the Act. In Rizo, the Ninth Circuit considered, en banc, whether prior salary was "a differential based on any other factor other than sex" within the meaning of the EPA that would permit an employer to escape liability for paying disparate wages to a female employee.

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    Topics: Suzanne Bailey, employment law, Equal Pay Act, prior salary use, wage disparity

    CRIMINAL LAW:  Second Circuit Upholds Restrictions on Removing "Premises Licensed" Handguns from Premises

    Posted by Suzanne L. Bailey on Fri, Jun 15, 2018 @ 11:06 AM

    The Lawletter Vol 43 No 3

    Suzanne Bailey—Senior Attorney, National Legal Research Group

         Coming in the midst of a national discussion on reasonable limits on the Second Amendment right to bear arms prompted by high school students’ reaction to the Parkland, Florida, school shooting, a decision from the Second Circuit Court of Appeals upholding a New York City regulation restricting the ability of individuals with a "premises license" handgun permit to remove the gun from the specified premises has special resonance. In New York State Rifle & Pistol Association, Inc. v. City of New York, 883 F.3d 45 (2d Cir. 2018), a firearms owners' association and individual holders of premises handgun licenses sued the City of New York and the New York City Police Department‑License Division (collectively, the "City"), the local office authorized by the New York State Penal Code to issue handgun permits in the City, challenging New York City Rule 5‑23(a) on the grounds that it violates the Second Amendment, the dormant Commerce Clause, the fundamental right to travel, and the First Amendment right to expressive association. The district court granted the City's motion for summary judgment, upholding the regulation on all grounds, and the Second Circuit affirmed.

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    Topics: criminal law, handguns, gun restrictions, premises-licensed handgun

    CRIMINAL LAW: No Right to Use Forfeited Substitute Assets to Pay for Appeal Counsel

    Posted by Suzanne L. Bailey on Fri, Dec 15, 2017 @ 10:12 AM

    The Lawletter Vol 42 No 9

    Suzanne Bailey, Senior Attorney, National Legal Research Group

                A recent decision from the Fourth Circuit Court of Appeals is a reminder of both the strength of federal forfeiture laws and the limits on the right to appellate counsel. On a practical level, it illustrates the danger of assuming that assets that might be subject to postconviction forfeiture will be available to pay for an appeal.

                Following his convictions for a host of drug, conspiracy, and money laundering offenses, and following the court's order for forfeiture in the amount of $51.3 million, the defendant in United States v. Marshall, 872 F.3d 213 (4th Cir. 2017), made a motion in the district court to release $59,000 in the defendant's credit union account in order to pay for his appeal. The motion correctly noted that the order of forfeiture did not specifically mention the $59,000 credit union assets. Although the Government previously had filed a bill of particulars providing notice that it intended to seek the forfeiture of the $59,000 in the credit union account, the bill did not indicate whether the Government classified the credit union funds as assets derived from the crimes pursuant to 21 U.S.C. § 853(a) or substitute assets pursuant to 21 U.S.C. § 853(p), that is, assets that are a substitute for assets derived from the crime that cannot be located due to an act or omission of the defendant.

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    Topics: criminal, forfeiture laws, substitute assets, payment for appeal

    CRIMINAL LAW: Due Process Demands Return of Court Costs, Fees, and Restitution When Conviction is Overturned

    Posted by Suzanne L. Bailey on Fri, Jul 14, 2017 @ 16:07 PM

    The Lawletter Vol 42 No 5

    Suzanne Bailey, Senior Attorney, National Legal Research Group

                Following the exhilaration accompanying a reversal of a criminal conviction, the former defendant must begin efforts to mitigate the damage, not the least of which may be repairing the financial harm of participating in the criminal justice system. In a seven to one decision (Justice Gorsuch did not participate), the U.S. Supreme Court addressed the Colorado statutory scheme for the refund of costs, fees, and restitution paid pursuant to the invalid conviction and concluded that the Compensation for Certain Exonerated Persons Act (Exoneration Act), Colo. Rev. Stat. §§ 13-65-101 to -103 (2016), violated due process by requiring defendants whose convictions have been reversed or vacated to prove their innocence by clear and convincing evidence in order to obtain a refund.  Nelson v. Colorado, 137 S. Ct. 1249 (2017).

                There were two petitioners in Nelson: (1) Shannon Nelson sought a refund of $702.10 withheld from her inmate account with the Colorado Department of Corrections toward an assessment of $8,192.50 in court costs, fees, and restitution following a reversal of her conviction for sexual and physical abuse of her four children and acquittal after retrial; and (2) Louis Alonzo Madden asked for a refund of $1,977.75 he paid toward assessed court costs, fees, and restitution totaling $4,413 after his conviction for patronizing a prostituted child was reversed on direct appeal, his conviction for attempted third-degree sexual assault by force was vacated on postconviction relief, and the State elected not to appeal or retry the case. Neither petitioner proceeded under the Exoneration Act. The Colorado Supreme Court held that the Exoneration Act was the sole means of seeking a refund, and, thus, the courts were without authority to refund the money paid. Moreover, the Colorado court found no due process problem because the Act provided sufficient process to defendants seeking refunds. Justice Ginsberg, writing for the U.S. Supreme Court, disagreed.

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    Topics: criminal law, refund of court costs, fees, and restitution, overturned conviction, Colorado Exoneration Act violates due process

    EMPLOYMENT LAW: NLRB "Search-for-Work" and "Interim Employment"

    Posted by Suzanne L. Bailey on Mon, Oct 17, 2016 @ 15:10 PM

    he Lawletter Vol 41 No 9

    Suzanne Bailey, Senior Attorney,National Legal Research Group

              For almost 80 years, the National Labor Relations Board ("NLRB" or "Board") has awarded "search-for-work" and "interim employment" expenses as part of its broad discretionary authority under section 10(c) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 160(c), to provide a make-whole remedy for those injured by unfair labor practices in violation of section 8 of the NLRA, 29 U.S.C. § 158.  See Crossett Lumber Co., 8 N.L.R.B. 440, 497-98, enforced, 102 F.2d 1003 (8th Cir. 1938).  Such expenses include, for example, increased transportation costs necessitated by seeking or commuting to interim employment, room and board while seeking employment and/or working away from home, and the cost of moving if necessary to assume interim employment. During those almost-80 years, the NLRB has awarded these expenses to those individuals who have suffered discrimination under section 8 of the NLRA in the form of an offset to interim earnings, rather than as a separate element of a back-pay award.  The result of treating the award as an offset to interim earnings was that (1) individuals who were unable to find interim employment did not receive any compensation for their search-for-work expenses, and (2) individuals who found jobs that paid wages lower than the amount of their expenses did not receive full compensation for the search-for-work and interim employment expenses.

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    Topics: The Lawletter Vol 41 No 9, Suzanne Bailey, employment law, NLRB, interim employment expenses, search for work, make-whole relief

    EMPLOYMENT LAW: FMLA: Individual Liability and the Need for Clear Communication

    Posted by Suzanne L. Bailey on Wed, Jun 1, 2016 @ 10:06 AM

    The Lawletter Vol 41 No 5

    Suzanne Bailey, Senior Attorney, National Legal Research Group

         A recent case from the Second Circuit Court of Appeals sets forth new Second Circuit standards for addressing certain issues under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601–2654, and the employment discrimination provisions of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12111–12117, and provides a set of facts on how not to respond to an employee's request for FMLA leave. Graziadio v. Culinary Inst. of Am., No. 15-888-CV, 2016 WL 1055742 (2d Cir. Mar. 17, 2016).

         The plaintiff, Cathleen Graziadio, had been employed at the Culinary Institute of America ("CIA") as a Payroll Administrator for five years on June 6, 2012, when she notified her direct supervisor that she needed to take FMLA leave to care for her 17-year-old son, who had been hospitalized as a result of previously undiagnosed Type I diabetes. At Graziadio's request, the necessary FMLA paperwork was forwarded to her by the appropriate employee. Graziadio returned to work on June 18, 2012, and on or about June 27, 2012, she submitted a medical certification supporting her need for leave to care for the 17-year-old son. That same day, June 27, Graziadio's 12-year-old son underwent surgery after having fractured his leg playing basketball, and Graziadio promptly notified her supervisor that she would need immediate leave to care for her son and that she expected to return the week of July 9 at least part-time.

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    Topics: employment law, Americans with Disabilities Act, Suzanne Bailey, Lawletter Vol 41 No 5, Family and Medical Leave Act

    CIVIL PROCEDURE: Scope of the Commercial Activity Exception to the Foreign Sovereign Immunities Act

    Posted by Suzanne L. Bailey on Thu, Jan 28, 2016 @ 13:01 PM

    The Lawletter Vol 41 No 1

    Suzanne Bailey, Senior Attorney, National Legal Research Group

         The Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602–1611, shields foreign governments and their agencies from suit in U.S. courts unless the suit falls within an exception specifically enumerated in the Act. In a recent decision, OBB Personenverkehr AG v. Sachs, 136 S. Ct. 390, 392 (2015), a unanimous U.S. Supreme Court considered the commercial activity exception, 28 U.S.C. § 1605(a)(2), and concluded that the exception did not extend to the purchase of a Eurail pass in the United States.

         Carol Sachs, a California resident, purchased a Eurail pass over the Internet from a Massachusetts-based travel agent. Eurail passes allow holders unlimited passage for a set period of time on participating Eurail Group railways, including OBB Personenverkehr AG ("OBB"), the Austrian state-owned railway. As she was attempting to board an OBB train in Innsbruck, Austria, Ms. Sachs fell from the platform onto the tracks, where a moving train crushed her legs, requiring amputation of each leg above the knee. She brought suit for her injuries in the U.S. District Court for the Northern District of California on the grounds of (1) negligence, (2) strict liability for design defects in the train and platform, (3) strict liability for failure to warn of the design defects, (4) breach of an implied warranty of merchantability for providing a train and platform unsafe for their intended uses, and (5) breach of an implied warranty of fitness for providing a train and platform unfit for their intended uses.

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    Topics: civil procedure, Suzanne Bailey, The Lawletter Vol 41 No 1, Foreign Sovereign Immunities Act, commercial activity exception

    LABOR LAW: More on Deflategate

    Posted by Suzanne L. Bailey on Thu, Oct 22, 2015 @ 11:10 AM

    The Lawletter Vol 40 No 9

    Suzanne Bailey, Senior Attorney, National Legal Research Group

         Whether you believe that quarterback Tom Brady was aware that the New England Patriots were using allegedly deflated footballs during the January 18, 2015 AFC Championship Game between the Patriots and the Indianapolis Colts or whether you are unsure what sport the Patriots and Colts play or whether they play the same sport, the recent decision by U.S. District Judge Richard M. Berman in National Football League Management Council v. National Football League Players Ass'n, Nos. 15 Civ. 5916 RMB JCF, 15 Civ. 5982 RMB JCF, 2015 WL 5148739 (S.D.N.Y. signed Sept. 3, 2015), appeal filed, No. 15-2805 (2d Cir. Sept. 3, 2105), vacating the arbitration award in favor of the National Football League ("NFL"), provides a valuable primer on basic notice and hearing requirements under the Federal Arbitration Act ("FAA").

         As has been well publicized, shortly after the conclusion of the January 18, 2015 game, the NFL retained Theodore V. Wells Jr. and the law firm of Paul, Weiss, Rifkin, Wharton & Garrison ("Paul, Weiss"), to conduct an independent investigation—along with NFL Vice President and General Counsel Jeff Pash—into the use of underinflated balls. The source of authority for the investigation was the NFL Policy on Integrity of the Game and Enforcement of Competitive Rules ("Competitive Integrity Policy").

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    Topics: labor law, Suzanne Bailey, The Lawletter Vol 40 No 9, deflated football, Tom Brady

    IMMIGRATION LAW: Analyzing State Drug Paraphernalia Offense for Purposes of Removal Under INA

    Posted by Suzanne L. Bailey on Thu, Jul 9, 2015 @ 10:07 AM

    The Lawletter Vol 40 No 5

    Suzanne Bailey, Senior Attorney, National Legal Research Group

         Section 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA") provides:

         Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.

    8 U.S.C. § 1227(a)(2)(B)(i).1 In Mellouli v. Lynch, 135 S. Ct. 1980 (2015), the U.S. Supreme Court held that INA section 237(a)(2)(B)(i) was not triggered by a Kansas state law drug paraphernalia conviction for concealing four orange tablets in a sock. The defendant acknowledged that the tablets were unprescribed Adderall, but the criminal complaint did not identify the substance as Adderall. In so holding, the Court reversed the judgment of the Eighth Circuit Court of Appeals, Mellouli v. Holder, 719 F.3d 995 (8th Cir. 2013), which had affirmed the decision of the Board of Immigration Appeals ("BIA") upholding the deportation order.

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    Topics: removal, immigration, The Lawletter Vol 40 No 5, drug paraphernalia, Suzanne Bailey, Mellouli v. Lynch, deportation

    CRIMINAL LAW: Prosecutorial Misconduct in Closing Argument

    Posted by Suzanne L. Bailey on Wed, Mar 25, 2015 @ 11:03 AM

    The Lawletter Vol 40 No 1

    Suzanne Bailey, Senior Attorney, National Legal Research Group

         A recent en banc decision from the Supreme Court of Washington serves as a reminder of the bedrock upon which our criminal justice system stands, that is, that every defendant is entitled to a presumption of innocence, which is overcome only when the State proves guilt beyond a reasonable doubt as determined by an impartial jury based on evidence presented at a fair trial. In State v. Walker, 341 P.3d 976 (Wash. 2015) (en banc), the defendant was charged as an accomplice to aggravated first-degree premeditated murder, first-degree felony murder, first-degree assault, first-degree robbery, first-degree solicitation to commit robbery, and first-degree conspiracy to commit robbery in connection with an armored truck robbery at the Walmart where the defendant's live-in girlfriend was employed. The defendant was convicted of all charges, and he subsequently appealed, claiming, inter alia, that he had been denied a fair trial due to prosecutorial misconduct in closing argument.

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    Topics: criminal, guilt beyond reasonable doubt, prosecutorial misconduct, presumption of innocence

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