Supreme Court and Eighth Circuit Update 2012

1. Supreme Court and Eighth Circuit Update 2012 Jonathan Gallagher BrownWinick 666 Grand Avenue, Suite 2000 Des Moines, IA 50309-2510 Telephone: 515-242-2422 Facsimile: 515-323-8522 E-mail: gallagher@brownwinick.com

2. Christopher v. SmithKline Beecham Corp. • Issue: Whether pharmaceutical sales representatives are exempt under the FLSA as “outside salesmen.” • Result: Pharmaceutical sales representatives are exempt “outside salesmen” under the FLSA even though they can only secure nonbinding commitments from physicians to prescribe their companies’ drugs.

3. Knox v. Service Employees Intern. Union, Local 1000 • Issue: Whether the First Amendment allows a public-sector union to require objecting nonmembers to pay a special fee for the purpose of financing the union’s political and ideological activities. • Result: No, public-sector unions may only impose a special assessment if it provides a Hudson notice of the new fee and allows nonmembers to opt in to the special fee rather than requiring them to opt out.

4. Arizona v. United States • Issue: Whether an Arizona law making it a crime for “an unauthorized alien to knowingly apply for work, solicit work in a public space or perform work as an employee or independent contractor” is lawful when no federal counterpart to this State law exists. • Result: No, since the federal government passed a comprehensive immigration policy that generally does not impose criminal penalties on unauthorized workers, states may not create such penalties.

5. Other Significant Supreme Court Cases • Coleman v. Maryland Court of Appeals: The Court held that lawsuits against states under the self-care provision of the FMLA are barred by sovereign immunity. • Elgin v. Department of Treasury: The Court held that the CSRA provides the exclusive route to judicial review for federal employees challenging adverse employment actions on the theory that a federal statute is unconstitutional. • Filarsky v. Delia: The Court held that a private attorney retained by a municipality to investigate a personnel matter is eligible for qualified immunity in a lawsuit alleging a constitutional violation committed in the course of the investigation. • Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C.: The Court held that the “minister exception” applies to bar lawsuits brought by ministers against their churches for employment discrimination.

6. Kallail v. Alliant Energy Corporate Services, Inc. • Issue: Whether the ADA requires an employer to provide a reasonable accommodation of providing a straight shift versus a rotating schedule to a disabled employee or providing a promotion to an administrator position. • Result: Under the facts of the case, the employer was not required to provide a straight shift or a promotion because working a rotating shift was an essential function of the job and because an employer need not make a promotion to satisfy the ADA.

7. Davis v. Jefferson Hospital Association • Issue: Whether a hospital discriminated against a doctor on the basis of the doctor’s race when it revoked his hospital privileges, given the doctor’s mistreatment of the staff and poor performance. • Result: Under the facts of the case, the hospital did not discriminate against the doctor principally because the doctor could not prove that other doctors with similar performance issues were not revoked.

8. E.E.O.C. v. CRST Van Expedited • Issue: Whether the E.E.O.C. engaged in sufficient investigatory and conciliatory efforts prior to filing suit in a Title VII, gender discrimination matter when the Commission filed the lawsuit and used the ensuing discovery to identify the individuals on whose behalf they were seeking relief. • Result: No, while the E.E.O.C. may seek relief on behalf of individuals beyond the charging parties and for alleged wrongdoing beyond those originally charged, it must discover such individuals and wrongdoing during the course of its pre-litigation investigation and must attempt conciliation.

9. Website: www.brownwinick.com Toll Free Phone Number: 1-888-282-3515 OFFICE LOCATIONS: 666 Grand Avenue, Suite 2000 Des Moines, Iowa 50309-2510 Telephone: (515) 242-2400 Facsimile: (515) 283-0231 616 Franklin Place Pella, Iowa 50219 Telephone: (641) 628-4513 Facsimile: (641) 628-8494 DISCLAIMER: No oral or written statement made by BrownWinick attorneys should be interpreted by the recipient as suggesting a need to obtain legal counsel from BrownWinick or any other firm, nor as suggesting a need to take legal action. Do not attempt to solve individual problems upon the basis of general information provided by any BrownWinick attorney, as slight changes in fact situations may cause a material change in legal result.