Private attorneys representing government entities are entitled to assert qualified immunity as a defense to civil rights claims, the U.S. Supreme Court unanimously ruled on Tuesday in Filarsky v. Delia.  The Court’s decision allows private attorneys to rely on the same protections that their public counterparts use.

The decision reverses a ruling of the Ninth Circuit Court of Appeals that held a private attorney could not rely on qualified immunity.

The City of Rialto, California hired a private attorney to conduct an internal affairs investigation of a firefighter taking sick leave after cleaning up a toxic spill. The firefighter’s superiors suspected that he was not ill because he had been the subject of disciplinary action immediately prior to the spill.

The firefighter claimed that he was forced to allow a warrantless inspection of his home as part of the investigation.  He sued both the City and the attorney who conducted the investigation under 42 U.S.C. § 1983, claiming violations of his civil rights. 

Section 1983 is the enforcement arm of the Fourteenth Amendment, which guarantees equal protection of rights under federal and state laws, and establishes a cause of action against persons who violate constitutional rights under color of state law.

Speaking for a unanimous Court, Chief Justice John G. Roberts, Jr. cited historical examples of the protections available to persons who worked for the government when Congress passed the statute in 1871.  He concluded that the protections provide did not vary depending on whether the person worked full time or part time for the government.

“The government’s need to attract talented individuals is not limited to full-time public employees,” the Chief Justice wrote.  “Indeed, it is often when there is a particular need for specialized knowledge or expertise that the government must look outside its permanent workforce to secure the services of private individuals.”

The Court noted that the private lawyer had specialized experience in conducting internal affairs investigations, and that the City had no permanent employees with comparable qualifications. 
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Supreme Court Hears Glaxo Overtime Pay Case

Posted on April 17, 2012 05:54 by Scott Gibson

The U.S. Supreme Court heard oral argument Monday on the hotly questioned issue of whether pharmaceutical sales representatives are subject to the outside sales exemption under the Fair Labor Standards Act.  

The case, Christopher v. SmithKline Beecham, Corp., challenges the Ninth Circuit’s decision that sales representatives were subject to the outside sales exemption of the FLSA.  That decision conflicts with a prior decision of the Second Circuit holding that pharmaceutical sales reps are entitled to overtime compensation.

The reps – and the Department of Labor – argue that they are not subject to the exemption because they do not interact with the patients and hospitals that ultimately purchase the medications from wholesalers.  Rather, they promote medications to physicians, who write prescriptions for their patients.
The case impacts employment conditions of tens of thousands of sales representatives, and could give rise to astronomical claims for unpaid overtime compensative.  In January, for example, Novartis agreed to pay $99 million to settle a similar case after receiving an adverse ruling on appeal.
As important as the overtime issue is, the case raises a second issue that could prove to be more wide reaching in its effect, specifically, the deference owed to the Secretary of Labor’s interpretation of regulations.

The Supreme Court should issue its decision in June.
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Mom was right:  if you can’t say anything nice, don’t say anything at all.  Former Yahoo! CEO Carol Bartz may soon wish that she had followed Mom’s advice.

In a recent interview with Fortune magazine, Bartz spared no punches in describing her termination, referring to her fellow board members as “doofuses” who “f---ed me over.”  

Bartz’s colorful language may prove to be extremely costly.  She reportedly has a non-disparagement provision in her employment contract that stood to pay her an additional $10 million in compensation.

As a result of the interview, Bartz has 10 million more reasons why she doesn’t like the Yahoo! Board.

Non-disparagement provisions are often included in employment contracts and settlement agreements to ensure that the parties play nicely with each other.  The downside of disparagement is usually so steep that the provisions are rarely tested in court.  

Prudent employers should include non-disparagement provisions in executive contracts, particularly when the employee will be receiving deferred compensation.  The provisions minimize the likelihood that an employee will trash the company in public.  

Prudent employees, on the other hand, should heed Mom’s advice.



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