FedSoc Forums

Ronald Meisburg, former National Labor Relations Board Member and General Counsel, joined us to discuss recent updates to joint employment law. Joint Employment is defined under the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Workers Protection Act as a form of employment that “exists when an employee is employed by two (or more) employers such that the employers are responsible, both individually and jointly, to the employee for compliance with a statute.” -- This issue has risen to the forefront of labor law as President Obama’s Department of Labor has become more aggressive in his last year and as businesses grapple with the coming of a new administration. -- Featuring: Hon. Ronald Meisburg, Special Counsel, Hunton & Williams.

In May, the Department of Labor announced a new overtime regulation, which would require all employers to pay overtime to their salaried employees who make under $47,476 annually. The rule was set to take effect on December 1, 2016. However, 21 states filed suit against the federal government claiming that the rule violated the Fair Labor Standards Act (FLSA) and states’ rights by increasing the overtime threshold, which was $23,660 under the FLSA, so drastically and by setting automatic increases to the threshold every three years. The states argue the rule will decrease full-time employment while increasing unemployment and will burden state governments unlawfully under the 10th Amendment by forcing them to conform to the new regulations. The U.S. Chamber of Commerce and a coalition of business groups also filed their own suit against the law. The cases were consolidated. -- On November 16, Judge Mazzant of the District Court for the Eastern District of Texas heard the states' motion for a preliminary injunction to temporarily block the rule. On November 22, Judge Mazzant granted the states’ motion and issued a preliminary injunction prohibiting the Department of Labor from implementing and enforcing the new rule. Solicitor General Lawrence VanDyke, Michael Hancock of Cohen Milstein, and Jesse Panuccio of Foley & Larner LLP joined us to discuss the court's ruling and the future of the overtime rule under the new administration. -- Featuring: Mr. Lawrence Van Dyke, Solicitor General of Nevada; D. Michael Hancock, Of Counsel, Cohen Milstein; and Jesse Panuccio, Partner, Foley & Lardner LLP.

The Federalist Society's Legal Classics Revisited series returns to the writing of Professor Alexander Bickel and his last work, The Morality of Consent. In a July 11, 2016 Teleforum, we discussed Bickel's Least Dangerous Branch. The Morality of Consent is far shorter and was in manuscript form when Bickel died. Based on notes of magazine articles and lectures rather than on the author's plan for a single text, the book is unified by its larger themes rather than a conventional outline. -- Professor Bickel viewed the mid-20th century as a time when the American legal system was challenged by the civil rights movement, the Vietnam protests, and a national reaction led by Richard Nixon. Each raised questions about obedience to the law as it existed. These events from generations ago led Bickel to consider the process by which Americans made law and came to accept and obey it. He worked hard to define the paradox presented by civil disobedience which seemed to be established within American law and yet carried the potential to destroy both law and ordered society. Contemporary readers will find the effort instructive and successful, at least in part. But questions remain. Bickel addressed other topics which "touch and concern" his questions, his misgivings, and his faith in the enterprise of Law. Bickel grappled with questions that resist final answers in each chapter of his book, a legal classic worth a visit in our own day. -- Featuring: Dean Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine; James A. Haynes, Former Attorney and Alternate Judge, U.S. Dept of Labor, Employees Compensation Appeals Board; and John J. Park, Jr., Of Counsel, Strickland Brockington Lewis LLP.

On October 27th, 2016, on a 3-2 party line vote, the Federal Communications Commission adopted controversial new privacy and data security rules for broadband ISPs. The FCC determined such rules were necessary because its Open Internet Order reclassified broadband providers as Title II common carriers. Prior to this reclassification, broadband ISPs operated under the generally applicable privacy and data security framework set forth by the Federal Trade Commission. However, the FCC’s new rules differ from the FTC’s framework in significant ways. Did the FCC need to adopt these new rules to protect consumers, and if so, why? Are there good reasons for these rules to differ from the FTC’s approach, which governs the rest of the Internet? What will be the practical effect of these new rules on companies, competition, and consumers? What might we see from the courts and Congress on this issue in the future? Our panelists discussed these questions and more in a lively Teleforum. -- Featuring: Dallas Harris, Policy Fellow, Public Knowledge and Michelle Rosenthal, Senior Corporate Counsel, T-Mobile. Moderator: Neil Chilson, Attorney-Advisor to Commissioner Maureen Ohlhausen, Federal Trade Commission.

On November 7, the Supreme Court heared oral argument in National Labor Relations Board v. SW General, Inc., which deals with presidential appointment powers and centers on a dispute over provisions of the Federal Vacancies Reform Act of 1998 (FVRA). The case challenges a 2013 National Labor Relations Board (NLRB) determination of unfair labor practices at an Arizona ambulance company, SW General. SW General contends that under the FVRA, President Obama's appointment of an acting general counsel, Lafe Solomon, for an NLRB vacancy was illegal, and therefore the case against them should be dismissed. -- The U.S. Court of Appeals for the District of Columbia Circuit agreed that the acting general counsel Solomon's tenure violated the FVRA and invalidated the decision. The federal government now seeks relief from the High Court, based on alternative statutory interpretation that the President's appointment was fully permissible under the law. -- Featuring: John Elwood, Partner, Vinson & Elkins LLP.

Although a territory of the United States and subject to the Constitution’s guarantees of non-discrimination, Guam law permits only those who meet the definition of “Native Inhabitants of Guam” to vote in a future status plebiscite. Guam thus excludes most citizens of the United States from voting in the plebiscite. Supporters of the plebiscite are forcing a reexamination of the role of the United States on this strategically important island without giving all citizens a voice in the process. What are the implications for the reach of the U.S. Constitution and U.S. national security? An ongoing lawsuit against Guam will be discussed. -- Featuring: J. Christian Adams, Election Lawyer Center.

Mr. Kirk will discuss the successful challenge brought by the leaders of the Virginia General Assembly to Governor Terry McAuliffe’s attempt to repeal Virginia’s constitutional prohibition against felon voting by Executive Order. The Executive Order purported to exercise the Governor's clemency power to restore political rights (including the rights to vote and to sit on juries) to over 200,000 convicted felons. Mr. Kirk will focus in particular on issues that could arise in connection with other states’ prohibitions against felon voting, including the argument that such provisions discriminate on the basis of race. -- Featuring: Michael Kirk, Partner, Cooper & Kirk PLLC.

On Tuesday, November 1, the Supreme Court heard oral argument on the case State Farm Fire and Casualty Co. v. U.S. ex rel. Rigsby. The defendant, Cori Rigsby, violated the seal requirement of the False Claims Act (FCA) by disclosing her complaint against State Farm before the defendant was served. Although Rigsby won her original case against State Farm under the FCA, the U.S. Court of Appeals immediately dismissed the case due to the procedural violation. The question the Supreme Court must answer is what standards should be used to determine whether a claim made under the False Claims Act should be dismissed because the complaining party violated the seal requirement? -- Featuring: Cory Andrews, Senior Litigation Counsel, Washington Legal Foundation.

In 2014, the Students for Fair Admissions ("SFFA"), a membership organization comprised of students, parents, and concerned citizens, sued both Harvard University and the University of North Carolina at Chapel Hill for racial discrimination in the admissions process. SFFA alleged that the universities were capping the number of Asian Americans they admit and using racial classifications to engage in discrimination. After a brief stay pending resolution of Fisher v. University of Texas, both cases are now moving forward. This call will provide a litigation update on these and other cases. -- Featuring: Mr. William Consovoy, the lead attorney for SFFA, Partner, Consovoy McCarthy PLLC.

Recent opinions from the Supreme Court and policy debates within the halls of Washington have placed a renewed focus on the amount of judicial deference administrative agencies receive when interpreting statues. Kent Barnett of the University of Georgia Law School and Christopher Walker of Ohio State’s Moritz College of Law have authored a law review article entitled Chevron in the Circuit Courts that empirically examines the effect of so-called Chevron, and its weaker cousin Skidmore, deference on cases heard by the federal intermediate appellate courts. Their article features circuit and agency-specific data on when and where Chevron really matters. Stephen Vaden will moderate a discussion with the papers' authors in a teleforum that should be of interest to both administrative law practitioners and those engaged in the debate over the size and role of the administrative state. -- Featuring: Prof. Kent Barnett, Associate Professor of Law, University of Georgia Law School and Prof. Christopher Walker, Associate Professor of Law, Ohio State University, Michael E. Moritz College of Law. Moderator: Stephen Vaden, Associate, Jones Day.