As its term nears its annual close, the Supreme Court has issued a couple of opinions of interest to employers and employees. What is surprising is that the Court was unanimous in both decisions. This morning, the unanimous Supreme Court agreed that only federal law applied to off-shore drilling platforms under the Outer Continental Shelf Lands Act (“OCSLA”) and that the laws of adjacent states only applied when applicable and there is no other federal law on the issue. Parker Drilling Management Services Ltd v. Newton, No 18-389 (6-10-19). Accordingly, only the Fair Labor Standards Act and not California wage and hour laws applied to the plaintiff’s class action claims that he was improperly not paid for standby-time when he could not leave his rig. Last week, the Court ruled that a defendant employer’s failure to include an objection to a plaintiff’s failure to file a religious discrimination Charge of Discrimination with its Rule 12(b) defenses in a responsive pleading in a Title VII action forfeited the defense. Therefore, the employer could not later challenge the court’s subject matter jurisdiction to defeat a claim for religious discrimination which had not been raised in her EEOC Charge (which had only asserted sexual harassment and retaliation). Fort Bend County Texas v. Davis, No. 18-525 (6-3-19). “Title VII’s charge-filing instruction is not jurisdictional, a term generally reserved to describe the classes of cases a court may entertain (subject-matter jurisdiction) or the persons over whom a court may exercise adjudicatory authority (personal jurisdiction). . . . Prerequisites to suit like Title VII’s charge-filing instructions are not of that character; they are properly ranked among the array of claim-processing rules that must be timely raised to come into play.” In other words, “a rule may be mandatory without being jurisdictional, and Title VII’s charge-filing requirement fits that bill.”
In Davis, the plaintiff had filed a Charge of Discrimination with the EEOC alleging that she had been sexually harassed and retaliated against for complaining. After her Charge had been filed, she was fired for missing work while she attended a church service even though she had previously objected to the work schedule as conflicting with the church service. While she intended to amend her EEOC Intake Questionnaire, she never amended the formal Charge document which is sent to the employer at the beginning of an EEOC investigation. The trial court granted summary judgment on all claims, but the Court of Appeals reversed judgment on the religious discrimination claim. At that point, the employer raised for the first time that the plaintiff had not amended her Charge to include a claim for religious discrimination and this deprived the court of subject matter jurisdiction. The trial court granted the employer’s motion to dismiss for lack of subject matter jurisdiction, but the Court of Appeals reversed on the grounds that filing a Charge is not a jurisdictional issue and the defense had been forfeited when it had not been raised earlier in the litigation. Although the Court had previously refused to grant certiorari on the religious discrimination claim, it granted certiorari as to whether filing a Charge of Discrimination is a jurisdictional prerequisite to pursuing a civil action.
Justice Ginsburg observed that “the word “jurisdictional” is generally reserved for prescriptions delineating the classes of cases a court may entertain (subject matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction).”
The Court has therefore stressed the distinction between jurisdictional prescriptions and nonjurisdictional claim-processing rules, which “seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.” . . . A claim processing rule may be “mandatory” in the sense that a court must enforce the rule if a[n opposing] party “properly raise[s]” it. But an objection based on a mandatory claim processing rule may be forfeited “if the party asserting the rule waits too long to raise the point.”
. . .
Title VII’s charge-filing requirement is not of jurisdictional cast. Federal courts exercise jurisdiction over Title VII actions pursuant to 28 U. S. C. §1331’s grant of general federal-question jurisdiction, and Title VII’s own jurisdictional provision . . . .Separate provisions of Title VII, §2000e–5(e)(1) and (f )(1), contain the Act’s charge-filing requirement. Those provisions “d[o] not speak to a court’s authority,” . . . , or “refer in any way to the jurisdiction of the district courts,”
. . .
And recognizing that the charge-filing requirement is nonjurisdictional gives plaintiffs scant incentive to skirt the instruction. Defendants, after all, have good reason promptly to raise an objection that may rid them of the lawsuit filed against them. A Title VII complainant would be foolhardy consciously to take the risk that the employer would forgo a potentially dispositive defense.
In sum, a rule may be mandatory without being jurisdictional, and Title VII’s charge-filing requirement fits that bill.
In short, employers may still move to dismiss claims where the plaintiff failed to file a Charge of Discrimination, but they raise and preserve that defense as required by Civil Rule 12(b) instead of waiting years to challenge the court’s subject matter jurisdiction.
In Newton, the plaintiff worked on drilling platforms off the coast of California. His 14-day shifts consisted of 12-hour work hours (paid well above minimum wages) and 12 unpaid hours of standby time when he was required to remain on the platform. He filed a class action in California state courts under California law challenging the failure to pay him and his co-workers for standby time. While the parties acknowledged that the OCSLA applied, the plaintiff asserted that consistent state laws still applied on the Outer Continental Shelf (OCS). The trial courts applied Fifth Circuit law that state law only applied when there were gaps in federal law and dismissed the claims because the FLSA did not leave gaps. The Ninth Circuit reversed and held that state law continued to apply unless it was incompatible with federal law. The statute itself provided that state laws applied ““to the extent that they are applicable and not inconsistent with this subchapter or with other Federal laws and regulations of the Secretary now in effect or hereafter adopted . . . “
Justice Thomas explained that the statute’s use of “applicable” and “not inconsistent” required an interpretation that gave meaning to both terms. If a state law applied merely because it was relevant and addressed the subject, then the statute would not need to only apply “applicable” state laws. On the other hand, if state law only applied when there would gaps, it could be difficult to imagine how such a law could possibly be inconsistent when federal law was silent on the subject, although that could happen when federal law was intentionally silent on an issue or the law could be inconsistent with a federal law on a different issue. In light of the fact that federal law had exclusive jurisdiction over the OCS, and there is no overlapping jurisdiction, “these provisions convince us that state laws can be ‘applicable and not inconsistent’ with federal law under §1333(a)(2)(A) only if federal law does not address the relevant issue.”
Federal law has exclusive jurisdiction and only borrows certain state laws when federal law is silent on the issue. Also, in light of the supremacy of federal law and the lack of overlapping jurisdiction, it would make little sense to treat the OCS as a mere extension of the adjacent state where federal law only applies when it conflicts with state law. Rather, the OCS is treated more like a federal enclave.
There, the Court held that “if a federal law addresses the issue at hand, then state law is not adopted as federal law on the OCS.” In applying this standard, the Court easily dismissed the state law wage and hour claims because the Fair Labor Standards Act already addressed those issues. “Therefore, the California minimum wage is not adopted as federal law and does not apply on the OCS.”
Because the lower courts had not analyzed all of the plaintiff’s claims, the Court remanded the matter so that those issues could be examined under the standard announced in this case.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
