Yesterday a California Court of Appeal issued its decision in Sanchez v. Swissport, Inc., addressing whether an employee fired after exhausting her 16 weeks of pregnancy disability leave could assert valid claims against the employer for pregnancy discrimination and failure to accommodate a disability. The court said yes.
In Sanchez, the plaintiff employee only worked for Swissport for about a year and one-half when she learned she was pregnant and that she had a high-risk pregnancy requiring bed rest. She informed her employer that she needed a leave of absence from February through at least her due date in October. Her employer provided her with the full 16 weeks of pregnancy disability leave required under California's pregnancy disability leave law. The employer also allowed her to use an additional three weeks of accrued vacation, bringing the employee's total leave to 19 weeks. The employee was unable to return to work at the end of that 19 weeks, as it was only July and she was not due to give birth until October. Swissport terminated her employment. Can you guess what happened next?
You guessed it. The employee sued. Swissport promptly moved to dismiss the case, arguing that because it provided the maximum leave (16 weeks) required for pregnancy disability in California, the employee's claims for pregnancy discrimination, gender discrimation, and failure to accommodate a disability were invalid as a matter of law. The trial court agreed and threw out the case. Not so fast, though...the employee successfully appealed.
In yesterday's decision, the California Court of Appeal held that the trial court should not have thrown out the case at the motion to dismiss stage. The court held that an employer's providing of the 16 weeks of leave for pregnancy disability does not automatically shield the employer from claims for failure to accommodate a disability or for gender/pregnancy discrimination under FEHA. The court reasoned that an extended leave of absence (beyond 16 weeks of pregnancy disability leave) may be a "reasonable accommodation" for a disability required under FEHA, and that Swissport may have been required to provide the additional leave time absent a showing of undue hardship. The case was, therefore, remanded to the trial court level so that the employee's FEHA claims could be litigated.
The Sanchez v. Swissport case (available here) is a good reminder for employers that simply complying with maximum leave entitlements provided under laws such as California's pregnancy disability leave law and/or FMLA/CFRA does not necessarily satisfy an employer's obligation to a disabled employee. Employers who terminate disabled employees simply because they have exhausted statutory leave entitlements are likely to face claims for failure to accommodate and disability discrimination. Employers should always engage in an interactive process with the employee at or near the expiration of the leave to assess how much additional leave time (or other accommodations) the employee needs and determine whether additional leave can be provided as a reasonable accommodation and without undue hardship to the employer.
This week the California Supreme Court was busy deciding whether to review some notable employment decisions. In favorable news for employers, the Court denied review in See's Candy Shops v. Superior Court (Silva), the time rounding case in which a California Court of Appeal recently held that time rounding policies are permitted under California law. Our prior post on the See's Candy case is here. The Court granted review of Richey v. Autonation, a case addressing whether employers can assert an "honest belief" defense to liability on a claim under the California Family Rights Act. In the Richey case, the employer had a somewhat ambiguous policy prohibiting employees from engaging in other employment while on CFRA leave. An employee took a CFRA leave of absence, but while on the leave, engaged in his own self-employment. The employer believed the employee was abusing his CFRA leave and terminated his employment. The employee sued, the case was ordered to arbitration pursuant to an arbitration agreement between the parties, and the arbitrator found in favor of the employer on the ground that the honest belief defense provides a complete defense to liability. The employee appealed, and a California court reversed, which is unusual given the narrow standards for review and reversal of arbitration decisions. The court of appeal held that the employer could not avoid liability under CFRA based solely on an "honest" belief that the employee was abusing the leave. The court held that the employer must produce evidence demonstrating that the employee actually was abusing the leave. The California Supreme Court has now granted review of that decision.
Finally, the Court this week granted review of Franco v. Arakelian, another case addressing enforceability of employment arbitration agreements in California. (See our prior post here.) The Franco court held, contrary to some other California courts, that PAGA claims cannot be compelled to arbitration and that the United States Supreme Court decision in AT&T v. Concepcion does not preempt California law on enforceability of class action waivers in the employment context. The California Supreme Court has granted review in several similar cases, and this week's grant of review in Franco was on a "grant and hold" basis pending the Court's decision in Iskanian v. CLS Transportation. Stay tuned for guidance from the California Supreme Court on these important employment law issues.
Today the California Supreme Court issued its decision in Harris v. Santa Monica, addressing the “mixed motive” defense to discrimination claims under FEHA. This case addresses whether a discrimination plaintiff suing under California law must prove that a discriminatory motive was (1) the "but for" cause for the adverse employment decision, (2) a lesser standard, that the discriminatory motive was a motivating factor behind the decision, even if not the dispositive factor, or (3) something in between. The California Supreme Court went with "something in between." In short, the Court held that in mixed motive cases, if an employee proves that an employment action was substantially motivated by discrimination (but also motivated in part by legitimate, non-discriminatory reasons), the burden shifts to the employer to prove that it would have made the same decision for legitimate, non-discriminatory reasons. If the employer succeeds in proving this, then the employer wins, right? Not so fast. The Court today held that if the employer proves that it would have made the same decision for legitimate reasons, the employee may not recover back pay, reinstatement, or emotional distress damages. However, the Court held that the employee may still be entitled to declaratory relief (a court declaration that the employer engaged in unlawful discrimination), injunctive relief (a court order requiring the employer to refrain from similar acts of discrimination in the future) and—the real kicker—attorneys’ fees.
In the Harris case, the plaintiff-employee was a bus driver for the City of Santa Monica. Harris had a less than stellar performance record, to put it nicely. Shortly into her initial 40-day training period, she had an accident determined to be her fault and which caused minor damage to the bus. She then had a second at-fault accident within her first three months and while still a probationary employee. In addition to these accidents, within the first few months of her employment (also while she was still a probationary employee) she reported late to her shift twice and failed to give the dispatcher at least one hour’s notice as required by policy. Applicable policies clearly indicated that these circumstances warranted termination of employment. Indeed, following these incidents, the transit services manager and the assistant director concluded that Harris did not meet the standards for continued employment. However, prior to any termination decision actually being made and communicated to Harris, Harris had a chance encounter with her immediate supervisor (not the transit manager or assistant director), who noticed Harris’ uniform shirt sloppily hanging loose and he told her to tuck it in. At that time, Harris informed the supervisor that she was pregnant. Harris claims her supervisor looked displeased at the news. He asked her to get a doctor’s note clearing her to continue to work, which she did. A few days later, Harris’ supervisor was called to a meeting at which time he was given a list of probationary employees who were not meeting the performance standards for continued employment. Harris was on the list. Her employment was then terminated.
Harris sued for pregnancy discrimination, and the claim managed to survive summary judgment and get to trial. At trial, the City requested that the jury be instructed on the “mixed motive” defense and, more specifically, that even if the jury concluded that pregnancy discrimination was a motivating factor in the termination decision (along with legitimate reasons), the City would not be liable if it proved that it would have terminated Harris for the legitimate business reasons even without pregnancy discrimination as a motivating factor. The trial court refused to give this instruction to the jury. The trial court instead instructed the jury that the City was liable if Harris proved simply that pregnancy discrimination was “a motivating factor” in the termination decision. The jury thereafter concluded that discrimination was a motivating factor and awarded Harris about $150,000 for emotional distress and $25,000 for wage loss. In addition, because a prevailing employee is entitled to recover attorneys’ fees incurred to successfully litigate a discrimination claim, the court awarded Harris some $400,000 in attorneys’ fees.
The City appealed, and the court of appeal reversed the judgment, holding that the trial court should have given the jury instruction requested by the City. Harris then petitioned for review to the California Supreme Court, which granted review.
Today the Supreme Court issued its decision, agreeing with the court of appeal in part. The Court held that an employer is entitled to assert the mixed motive defense but that successful proof of the defense does not absolve the employer of all liability. The Court reasoned that if an employee proves that discrimination was a substantial factor behind an adverse employment action, it would be contrary to public policy and the purpose of FEHA to allow the employer to escape all liability. However, the Court held that where an employer proves that it would have made the same decision for legitimate business reasons irrespective of any partly discriminatory motive, the employee may not recover damages or reinstatement. In such instances, though, the trial court could still award declaratory and/or injunctive relief against the employer and also award attorneys’ fees to the employee as the prevailing party.
Given that the attorneys’ fees often exceed the damages awarded to a prevailing plaintiff in a discrimination case (such as was the case here), this still provides significant exposure to employers litigating this type of claim, even if successful in their defense. To be clear, however, an employer will not be liable for declaratory relief, injunctive relief, or attorneys’ fees in a FEHA case unless the employee proves that discrimination was a “substantial” motivating factor behind the adverse employment action. There is no bright line rule for what type of evidence will suffice, but the evidence of discriminatory motive must be substantial, not slight (e.g. a stray or isolated discriminatory remark likely would not be considered “substantial” evidence). The full Harris decision is here.
As readers of this blog know, over the last year the NLRB has issued a number of decisions unfavorable to non-unionized employers, including decisions relating to at-will employment policies, social media policies and related terminations, and arbitration policies. Some of these decisions were made by an NLRB Board, comprised largely of members appointed by President Obama as recess appointments in January 2012. This means that the members were not confirmed by the Senate as typically required. Senate Republicans refused to confirm President Obama's NLRB appointments at the time, so President Obama decided to get around the Republicans' obstacle by exercising a right to appoint people to fill vacancies in government agencies during a tiime when Senate approval cannot be obtained due to the Senate being in recess. A legal challenge was mounted to the President's recess appointments to the NLRB on the ground that the Senate was not really in recess at the time these appointments were made, and thus the appointments are unconstitutional. Today, the D.C. Circuit Court of Appeals agreed. In Noel Canning v. NLRB, the Court held that "recess" means the period of time during which the Senate is formally adjourned following a two-year session. It does not mean any period of time when the Senate is not in session for one or more days (such as was the case last January when the President made the "recess" appointments). As such, the Court held that the NLRB recess appointments were unconstitutional. This is hugely significant given that the NLRB needs at least three members to act, and three of the four members of the NLRB in 2012 were recess appointments--likely rendering invalid all NLRB decisions issued during this time.
It is anticipated that the D.C. Circuit decision will be appealed to the United States Supreme Court. We will post developments here.
Yesterday a California court affirmed a summary judgment win for the employer on an employee's claims of gender discrimination, retaliation, and defamation. The case, McGrory v. Applied Signal Technology, Inc., contains a lot of favorable language for employers litigating these types of claims in California courts, particularly in the context of seeking summary judgment on the claims.
McGrory was a male department manager who issued performance discipline to a subordinate female employee who was gay. The female employee refused to accept the discipline and instead lodged a complaint with HR that the discipline was motivated by McGrory's discriminatory bias against lesbians. The complaint prompted the company to retain an outside investigator to conduct an investigation. The investigator later issued a report finding that McGrory did not discriminate against the female employee and that the female employee did have performance issues that needed to be addressed. However, the investigation revealed that McGrory had engaged in inappropriate conduct in the workplace, including regularly making inappropriate sexual and racial/ethnic remarks in violation of the employer's policies. The investigator also concluded that McGrory (and one other male employee who was interviewed during the investigation) was not truthful in responding to all of her questions during the interview and was not fully cooperative in the interview process. Based on the investigation report, the employer terminated McGrory's employment.
McGrory sued for wrongful termination in violation of public policy, arguing that his termination was because he was male and that it was also against public policy for an employee to be terminated based on his participation in an investigation. Finally, the employee alleged that he was defamed as a result of HR telling one or more employees that he was terminated for not cooperating with the investigation (McGrory disputed he was uncooperative and claimed this conclusion was false).
The trial court granted the employer's motion for summary judgment, finding that McGrory's claims had no legal merit. McGrory appealed, but the appellate court agreed with the trial court's decision.
First, the court held that there was no evidence to support McGrory's claim that his termination was somehow motivated by the fact that he was a man. There was no direct evidence of any gender bias on the part of the decisionmakers, and the fact that McGrory0 disagreed with the conclusions of the investigation report was not sufficient to establish a discriminatory motive. The court reiterated the principle that discrimination cannot be proven simply by establishing that the employer's actions were unwise, unsound, or even incorrect. The actions must be more than wrong; there must also be evidence that the actions were motivated by discriminatory intent. McGrory had no such evidence.
Second, the court rejected McGrory's claim that his participation in the investigation was "protected activity" and that he should not have been terminated based on that particpation. The court rationally explained that while it is true that California's anti-discrimination law, FEHA, protects participation in investigatory interviews, it does not protect dishonesty during an investigation or failure to fully cooperate in an investigation. McGrory's termination was based in part on the employer's belief that McGrory was not truthful during the investigation and refused to provide certain information requested by the investigator. This is not protected activity.
Finally, the court rejected McGrory's defamation claim. In this regard, McGrory claimed that after he was terminated, HR told a co-worker that McGrory was terminated for not cooperating with the investigation. McGrory claimed this was a false statement (because he cooperated) and that it defamed him. The employer argued that it could not be liable for defamation because its statements were protected by the "common interest privilege." The common interest privilege protects statements made in the employment context by one interested party to another, as long as those statements are not made "maliciously." Malice generally means that the allegedly defamatory statement must have been motivated by hatred or ill will or with no reasonable grounds for believing the statement to be true. McGrory argued that there was no reasonable ground for the employer to believe that he failed to cooperate with the investigation. The court held that this argument was not supported by the evidence and that the investigator (and hence, the employer who relied on the investigator's report) had grounds for believing McGrory was less than cooperative. The court explained that it did not really matter whether this conclusion was correct or fair. Thus, McGrory's defamation claim could not succeed.
The full text of this decision is available here.
January 17, 2013
Posted by Cal Labor Law in Immigration
The U.S. Department of Homeland Security recently announced that certain foreign nationals who are in the U.S. who either entered the U.S. illegally, or entered legally and overstayed, will be eligible for waivers of the bar to receiving their immigrant visa from abroad. The program begins March 4, 2013 and only certain individuals will qualify.
As a brief background, most individuals must be in status in order to obtain a green card in the U.S. However, some individuals who either had no status or were out of status were nonetheless still able to do so if they had immigrant petitions filed by employers or certain family members prior to April 30, 2001. Individuals who were out of status and had immigrant petitions filed after April 30, 2001 are not eligible to adjust status in the U.S. to obtain permanent residency and must instead obtain an immigrant visa abroad from a U.S. Consulate.
Complicating matters was that Congress created a "ten-year bar" in 1996 whereby individuals who were out of status and then left the U.S. were not allowed to return for 10 years unless they can show extreme hardship to a U.S. Citizen spouse or parent. As a result, many people left the U.S. to file their waiver applications from abroad, only to get stuck abroad (usually at Ciudad Juarez, Mexico) for up to a year while their hardship waiver applications laggard in a long queue.
Fortunately, under the newly announced program, eligible individuals can apply for their waiver state side and then upon approval, they will only need to spend 2 weeks abroad.
Eligible individuals must first have an approved immigrant petition filed by a sponsor and be able to show extreme hardship to a U.S. Citizen spouse or parent if the waiver of the 10-year bar is not approved. Ironically, a showing of extreme hardship to U.S. Citizen children does not qualify under the law as written by Congress back in 1996. 3Also, if an individual has other grounds of inadmissibility (crimes, prior deportation, misrepresentation etc.) then the I-601A waiver will not apply.
The announcement from Secretary Janet Napolitano can be viewed here.
January 10, 2013
Posted by Cal Labor Law in CDF News & Events
On January 22, 2013 from 10:00 a.m. - 11:00 a.m. PST, CDF Partner Todd Wulffson will host a complimentary webinar discussing the anticipated impact of the President's second term on employers. With the 2012 election behind us, businesses need to plan for anticipated changes in government regulations and administrative enforcement. The last four years under the Obama Administration have brought significant changes in federal enforcement involving employers. The President has established an aggressive, pro-employee approach in both his Executive Orders and his administration’s agencies. With the current divided Congress, employers should expect a similar approach in the future – namely, increased regulations from administrative agencies to avoid the likely gridlock that would occur over trying to pass new laws. Based on the tide of new regulations flowing out of Washington, the last four years may have just been the warm-up act. There are significant, and potentially costly, trends emerging at the federal agency level. In addition, the Democrats now have a supermajority in both California legislative houses along with a Democratic Governor. To get a brief, but very helpful, look into what our experts expect to see in the coming year from Washington and Sacramento, this is a webinar you will want to attend.
In this webinar, we will review:
- New enforcement actions and trends by the Department of Labor with more actions and higher penalties. This will likely include more focus on employee misclassification and overtime issues.
- A significantly more active OSHA (and Cal-OSHA), including stricter injury and illness reporting duties, and focus on areas such as electronic communications and smartphones used at work and while driving.
- EEOC claims are already at an all-time high (as are DFEH claims in CA). The EEOC is expanding its outreach efforts to help generate employee job-bias claims. The agency is also focusing on “systematic” bias, and particularly on emerging issues, such as using Title VII to protect members of the LGBT community in the workplace.
- The NLRB will continue its foray into the non-unionized employer world and will continue to try to make it easier for unions to organize. We will discuss how we expect pro-employee/pro-union rulings and memos to continue to be issued by this agency during Obama’s second term.
- Buoyed by a significant majority in both houses, we expect to see an aggressive push of pro-employee legislation from our friends in Sacramento this term, including, but not limited to, bills addressing minimum wage, providing expanded leave rights, and making it easier for employees to prove retaliation.
We hope you will join us for this engaging and informative webinar!
MCLE & HRCI Credit is available (approvals are currently pending).
For more information and to register, click here.
The NLRB was busy in December issuing more decisions that are noteworthy and concerning for unionized and non-unionized employers alike. First, the NLRB issued a new decision (Supply Technologies, LLC, 359 NLRB No. 58) finding that a non-union employer’s policy requiring arbitration of employment disputes violated Section 7 of the NLRA. The NLRB relied on its prior decision and reasoning in D.R. Horton to invalidate the agreement, determining that the language of the agreement was ambiguous and would reasonably lead employees to believe they could not file unfair labor practice charges with the NLRB.
The Supply Technologies decision is not particularly surprising, given the NLRB’s prior decision in D.R. Horton which the NLRB is currently defending on appeal before the Fifth Circuit. Employers should note that several courts in many different states, including California, have rejected D.R. Horton’s analysis. Oral argument before the Fifth Circuit is scheduled for February 5, 2013. The ultimate decision and outcome in the D.R. Horton case may well impact the NLRB’s future handling of this issue.
In other December news, the NLRB upheld an earlier decision of an ALJ, finding that the termination of several employees for improper Facebook posts violated the NLRA. In Hispanics United of Buffalo, 359 NLRB No. 37 (Dec. 14, 2012), the NLRB held that a non-union employer’s termination of five coworkers based on certain Facebook posts was unlawful, and awarded the employees reinstatement and backpay. In this case, one coworker spoke critically of the work of several co-workers. One of those co-workers responded by posting a comment on her Facebook page about the criticism and inviting comments from her fellow criticized co-workers. Four co-workers posted their own responses to the criticism and about the co-worker who initiated the criticism. The employee who initiated the criticism asked the co-workers to stop their “harassing and bullying” posts, and made a complaint to her supervisor regarding the harassment and bullying. The employer ultimately terminated the five co-workers for bullying and harassing behavior. The NLRB found the terminations unlawful, reasoning that the Facebook posts were protected activity engaged in for mutual aid and benefit (banding together to defend against job-related criticism). This NLRB decision is a reminder to employers (union and non-union alike) to carefully consider discipline and terminations relating to social media in light of the NLRB’s continuing anti-employer posture on these issues.
Lastly, in December, the NLRB overturned decades-old precedent categorically exempting witness statements gathered during an employer’s internal investigation from disclosure to a union in response to a union request for information (which typically arises in connection with a grievance). In Piedmont Gardens, 359 NLRB No. 46 (Dec. 15, 2012), the NLRB held that witness statements are not automatically exempt from disclosure to unions. Instead, employers must consider the confidentiality interests in each specific case and apply a balancing test to evaluate whether there is a “legitimate and substantial confidentiality interest” and, if so, whether it outweighs the union’s need for the information. In addition, the employer must “raise its confidentiality concerns in a timely manner and seek an accommodation from the other party.” The Piedmont Gardens case muddies the waters in this area and obliterates any bright-line rule for treatment of witness statements as confidential. Each case will instead have to be decided on its unique facts.
Further muddying the waters in this area, the NLRB issued a similar decision the day before Piedmont Gardens, this time addressing what constitutes a witness statement in the first place. (If something isn’t a witness statement, it isn’t exempt from disclosure in response to the union’s request for information). In Hawaii Tribune Herald, 359 NLRB No. 39 (Dec. 14, 2012), the NLRB held that a document is only a witness statement if (1) the witness, in some way, either through reading or reviewing the statement or having it read to him, adopted the statement as his own; and (2) the witness received an assurance that the statement would remain confidential. In the Hawaii Tribune case, the NLRB held that an employer’s refusal to turn over a statement to the union was unlawful because the document did not constitute an actual “witness statement.” The statement in question was documentation of an employee’s account of an event he witnessed in the workplace. Although the statement was prepared by a supervisor, the employee was given the opportunity to make changes to the statement and then signed it as revised. Sounds like a witness statement, right? Not so, said the NLRB. According to the NLRB, the employee was not assured the statement would remain confidential and, as such, it did not qualify as a witness statement.
Stay tuned for more unusual developments from the NLRB, which we will endeavor to timely post on this blog.
We recently posted about California's adoption of new pregnancy disability regulations, which took effect December 30, 2012. On December 18, California further adopted general disability regulations governing accommodation requirements for non-pregnancy related disabilities. The disability regulations took effect December 30, 2012 and are available here. The new regulations are 23 pages in length and contain definitions of mental and physical disabilities, explain essential versus non-essential job functions, and provide detail on employer and employee responsibilities in engaging in the interactive process and providing reasonable accommodation. The new regulations incorporate the broad disability definitions and standards set forth under the recent amendments to the federal ADA, making the analysis of whether an employee is disabled much more similar under California and federal law than it used to be. In simplest terms, it is rather easy to qualify as "disabled" under California (and federal) law. Thus, in disability discrimination cases, the pivotal liability analysis will focus on the employer's response to the disability, not whether the employee qualifies as disabled. In short, almost any condition (save and except very minor conditions, such as a common cold or scrape) qualifies as a disability as long as it limits a major life activity in some way. The California regulations make clear, like the recent amendments to the ADA, that mitigating measures (such as glasses or contact lenses) may not be considered when determining whether a condition limits a major life activity. Additionally, where the major life activity of working is considered, a condition can be determined to limit an employee's ability to work even if the condition only limits the employee's performance of one particular job (as opposed to an entire class of jobs).
While the new regulations are too lengthy to summarize in their entirety in this post, there are some interesting points worth noting. First, the regulations contain a lot of discussion about considerations of transferring a disabled employee to a vacant alternative position as a reasonable accommodation. This concept is not new in and of itself. However, what is new is that the regulations expressly state that employers are required to give preference to disabled employees when filling a vacant position. The only exception is that the employer is not required to ignore a bona fide seniority system.
The regulations also discuss the circumstances under which employers may require medical documentation to support a request for reasonable accommodation. Interesting in this regard is that the regulations imply that an employer is not entitled to request medical documentation in every circumstance. The regulations instead say that the employer may request medical documentation "when the need for reasonable accommodation is not obvious." Furthermore, in situations where the employer seeks medical documentation, the employer must communicate its requests (whether initial or supplemental) through the employee (not directly to a medical provider). California (unlike federal law) continues to disallow employers from seeking diagnosis information or any medical information not necessary to determine the need for reasonable accommodation. Finally, where the employee needs reasonable accommodation for over a year, the employer may request further medical certification on a yearly basis. The regulations do not allow requests for recertification at earlier or more frequent intervals.
All California employers (in particular, their Human Resources or other personnel responsible for managing leave requests or accommodation requests) should review the new disability regulations to ensure that their practices comply with the standards set forth therein.
Following the California Supreme Court's long-awaited decision in Brinker last year, lower courts were left to resolve the numerous meal and rest break cases that had been held pending Brinker. As we recently reported, a number of these cases have been favorably decided for California employers, with courts holding that class certification was improper on meal break claims due to the predominance of individual issues bearing on a determination of liability. We reported on two of these specific cases, In re Lamps Plus Overtime Cases and Hernandez v. Chipotle here and here. Following their losses, the plaintiffs in each of these cases petitioned for review to the Supreme Court. Yesterday, the Supreme Court denied review but depublished both cases--suggesting that the Supreme Court did not agree with the court of appeals' analysis in some fashion. This is unfavorable news for California employers and possibly an indicator that the highest court in this state will continue to view class certifcation standards in wage and hour cases with an employee-friendly eye.
In related news, the California Supreme Court granted review yesterday of Reyes v. Liberman Broadcasting--another case addressing the enforceability of employment arbitration agreements and issues of FAA preemption (see our post here). Review was granted on a "grant and hold" basis pending the Court's decision in Iskanian v. CLS (see our related posts here). It appears the Court will continue to grant review on a grant and hold basis of cases dealing with these same issues until the lead case is decided.