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Something fishy with the majority's approach to this case?

Something fishy with the majority's approach to this case? If an employment agency for nurses enters into an agreement with those nurses forbidding them from working overtime, must the employment agency nevertheless pay enhanced overtime wages to nurses who work overtime in breach of that agreement with the agency?

This question lurks in the background of an interesting ruling that a three-judge panel of the U.S. Court of Appeals for the Second Circuit issued today.

In his separate opinion concurring in part and concurring in the judgment, Chief Judge Dennis Jacobs writes, "The justification offered by the majority opinion is that 'application of the Tennessee Coal test to the facts of this case is something of a red herring.' I do not find this ichthyological approach useful." A quick Westlaw search reveals that Senior First Circuit Judge Bruce M. Selya hasn't used the word ichthyology in a published opinion since 1994.

Full post as published by How Appealing on January 24, 2008 (boomark / email).