This week in suits by suits:

• On Tuesday, the U.S. Court of Appeals for the First Circuit heard oral argument in the case brought by Starbucks baristas alleging that the company violated the Massachusetts Tip Law by requiring the baristas to share their tips with shift supervisors .  We reported on this case earlier and will be on the lookout for the First Circuit’s decision.  The key question in the case – whether or not Starbucks shift supervisors have “managerial responsibility” – was argued to the court early on Tuesday.
• The IRS awarded a record $104 million to former UBS employee and whistleblower Bradley Birkenfeld, who had previously been convicted of tax fraud for advising UBS clients to avoid paying income taxes.  Birkenfeld's testimony disclosed how UBS was offshoring client assets to evade U.S. income tax; as a result, UBS agreed to pay $780 million in criminal fines and release data for nearly 5,000 accounts.
• Author and playwright David Macaray has written a provocative article for the Huffington Post entitled "The Golden Parachute is Un-American" (and, he also argues, "curious," "bizarre," and "con jobs").

• The Inbox

This isn’t a political blog; although the lawyers here at Suits by Suits certainly have political opinions (and often strong ones at that!), we’re more of a roll-up-your-sleeves-and-get-things-done bunch.  We want to help high-level employees and their employers be aware of the potential pitfalls that exist in the workplace and to rely on our experience as litigators when something does go wrong.

But sometimes those pitfalls are red or blue; sometimes employers (Chick-Fil-A, anyone?), or high-profile employees get into trouble precisely because they’ve made their political opinions public. 

Eleven years ago today – and one day after the 9/11 attacks on the World Trade Center and the Pentagon – then-University of Colorado Professor Ward Churchill published an essay entitled “Some People Push Back:  On the Justice of Roosting Chickens.”  

Through some strange circumstances (which we discuss below), that 9/12 essay sparked controversy nearly three and a half years later, after which, Prof. Churchill alleges, he was wrongfully terminated by the University of Colorado in retaliation for the opinions he expressed.  Although he won at trial, the jury verdict was set aside by the trial court judge on a motion for judgment as a matter of law; on Monday, that ruling was upheld by the Colorado Supreme Court.  Professor Churchill has vowed to appeal to the U.S. Supreme Court.  If and when he does – and if the Supreme Court grants certiorari – we’ll continue to cover this case.

Although Professor Churchill’s 9/12 article is unusual, we know that individuals – whether speaking for themselves or on behalf of their employer – are going to speak out on the issues that matter most to them, particularly in an election year, just as Professor Churchill did on the day after 9/11.  Is there anything we can learn from those 9/12ers?

• Wrongful Termination

Two quick news notes from the broader employment law world: Governor Jerry Brown of California has signed into law a bill that creates a higher bar for employers that would move employees wearing clothing or hairstyles based on religious beliefs – such as turbans or hijabs – out of public workspaces and into back rooms.  The new law will require employers to show an undue hardship, essentially a particular difficulty or expense, to accommodate those employees.   It's clearly a response to a lawsuit involving this exact issue and Disneyland --  which colleague Andrew Torrez covered here. 

And from the New York Times Magazine comes this great article with the fitting headline “How Not To Fire A College President,” about the attempted ouster of University of Virginia President Theresa Sullivan.  Perhaps the key takeaway from this cavalier move: when planning to remove a liked and respected C-level executive, try to get leaders of affected constituencies within the organization to buy in before the ouster. 

• Religious Discrimination‎

Section 922 of the Dodd-Frank Act of 2010 has received a lot of attention in legal circles.  That provision established a whistleblower program under which a person who voluntarily provides the Securities & Exchange Commission with information about an employer’s wrongdoing can receive an award.    To help strengthen the program, Section 922 also protects whistleblowers from retaliation for disclosing information that they report directly to the SEC. 

On August 21, the SEC announced its first payment of a whistleblower award under the new program.  

• Whistleblowers

This week's latest in Suits by Suits:

• A trombonist and former leader of the Glenn Miller Orchestra is in the mood for some litigation.  Gary Tole, who is white, has sued the orchestra’s production company claiming that he was fired in retaliation for him promoting and hiring African Americans and Hispanics.  Among other things, Tole alleges that the president of the company questioned his hiring of two African American musicians, saying at the time to Tole that “[T]his is the Glenn Miller Orchestra, not the Count Basie Orchestra,” or words to that effect.

• Discrimination
• The Inbox
• Title VII
• Wrongful Termination

This story from law.com starts with a truism: “Litigation and anger can be a dangerous mix.”  The story explains why: it’s about how Eaton Corporation , which makes devices that manage energy, has spent eight years suing six of its engineers. Along the way, according to the story, Eaton and its counsel engaged in discovery violations, incurred sanctions, and may have hired an outside counsel who engaged in ex-parte (one-side-only) communications with a judge hearing the case.  In addition to damaging its reputation, the casualty list includes two outside law firms that were terminated and two in-house lawyers who lost their jobs.   The saga continues for Eaton: while one part of its suit against the engineers is still active, the engineers (who have had criminal charges against them dismissed), still have a counterclaim against the company, and shareholders have filed a suit against the company’s directors and officers, alleging they “bungled the case."

When we promised yesterday that we would have more on the Lilly Ledbetter Fair Pay Act of 2009 later this week, we hadn’t realized that Ms. Ledbetter would be speaking to the Democratic National Convention about it last night.  As Ms. Ledbetter reminded the crowd last night, the law named after her was the first bill that President Obama signed into law. 

In a nutshell, the Ledbetter Act was Congress’s response to the U.S. Supreme Court’s holding in Ledbetter v. Goodyear Tire & Rubber Co., Inc., that Ms. Ledbetter, a nearly 20-year employee of Goodyear, did not timely file an EEOC charge against Goodyear alleging that, in violation of Title VII, Goodyear paid her less because of her gender.

• Discrimination
• Equal Pay
• The Basics
• Title VII

On Friday, the Texas Supreme Court dismissed a suit brought by Dr. Diljit K. Chatha, a professor at Prairie View A&M University, against the University (there was a dissenting opinion). 

Dr. Chatha, who is of Indian national origin, claimed that she was paid less than other professors because of her race and nationality.   The Texas Supreme Court found that Dr. Chatha’s claims were “jurisdictionally barred” because she did not file a complaint under the Texas Commission on Human Rights Act (TCHRA) within 180 days of the University promoting her to full professor in 2004, which was when Dr. Chatha was informed of the University’s allegedly discriminatory pay decision.  Instead, Dr. Chatha filed the complaint about two years later.

• Discrimination
• Equal Pay
• Title VII

The pre-Labor Day highlights of Suits by Suits:

• A producer of Martin Scorcese’s next film, The Wolf of Wall Street, filed a lawsuit against the production company for reducing her role.  The New York Post reports that Alexandra Milchan alleges that she was owed $700,000 in fixed payments and the right to produce the film.  The article includes a photo of Leo DiCaprio wearing … you guessed it … a suit.

• Breach of Contract
• Discrimination
• Releases

OK, that’s an old joke.  But Labor Day is about more than back-to-school sales and beaches.  This is a short post looking back at the history of Labor Day. 

But wait, you say: isn’t this a blog about disputes between high-level employees and their companies, often where there’s an employment contract at issue?  Yes, absolutely it is.  That’s the bullseye of our focus.  Look broadly at that target, though, and what you see is friction: friction in the relationship between an employer and its employees.  We are most intrigued when the friction involves a senior executive and a company.   We are also intrigued when disputes arise because an employer asked a job applicant about his religious beliefs or required him to disclose his Facebook password in order to apply, or a company fired an employee shortly after learning that she was pregnant, or a company claims that a former sales agent violated the non-compete provision in her contract by selling a competitor’s products in the company’s territory – even when that job applicant or employee is not at the C-level.  That’s because the same laws against discrimination apply to all of us, and courts apply the same principles of contract interpretation regardless of whether the employment contract is between a CEO and a Fortune 500 company, or a first-year sales associate and a family-owned business.

This weekend, the labor movement – involving employers, employees, and, ultimately, complicated and regulated contracts – is drawing our attention.  So, enough about why we’re writing about Labor Day: let’s get to it.