Human resources & employment law cumulative case briefs
Jurisdiction: Fifth Circuit
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Jurisdiction: Fifth Circuit Halliburton, Incorporated v. Administrative Review Board, No. 13-60323 (5th Cir., 11/12/14) [enhanced lexis.com version];
The employer alerted whistleblower's colleagues by email that the SEC was initiating an inquiry:
Not surprisingly, the entire appellate court panel [per curium] concurred that the Act had been violated. Appellate court summary: Anthony Menendez, an employee of Halliburton, used the company’s internal procedures to submit a complaint to management about what he thought were “questionable” accounting practices. Menendez also lodged a complaint about the company’s accounting practices with the Securities and Exchange Commission (“SEC”), which led the SEC to contact Halliburton and instruct it to retain certain documents during the pendency of the SEC’s investigation. When Halliburton received the SEC’s notice of the No. 13 - 60323 investigation, the company inferred from Menendez’s internal reports that Menendez must have reported his concerns to the SEC too. Halliburton sent an email to Menendez’s colleagues that instructed them to start retaining certain documents because “the SEC has opened an inquiry into the allegations of Mr. Menendez.” Once his identity as the whistleblower was disclosed, Menendez’s colleagues, who m he had essentially accused of fraud, began treating him differently, generally refusing to work and associate with him. The Administrative Review Board of the Department of Labor determined that the company’s disclosure to Menendez’s colleagues of his identity as the SEC whistleblower who had caused an official investigation , thus resulting in Menendez’s workplace ostracism , constituted illegal retaliation under § 806 of the Sarbanes - Oxley Act (“ SOX ”) . See 18 U.S.C. § 1514A(a) . For the reasons that follow, we affirm. ADA, Title VII: adverse employment action, retaliation, indirect discrimination – McDonnell Douglas – no prima facie case, isolated comments, lack of causal connection, summary judgment affirmed Jurisdiction: Tenth Circuit Melin v. Verizon Business, Inc., No. 14-3071 (10th Cir., 11/25/14) [enhanced lexis.com version]; http://www.ca10.uscourts.gov/opinions/14/14-3071.pdf. This case is primarily of interest to litigators because it involves failure of proof of essential elements of the discrimination acts, though others might benefit from reviewing the applicable law. Appellate court summary: Curt C. Melin sued his employer, Verizon Business, Inc., for violations of the Americans with Disabilities Act (ADA) and Title VII. Mr. Melin alleged that Verizon discriminated against him based on his disability and retaliated against him for complaining about the discrimination. Verizon moved for summary judgment on Mr. Melin’s claims and the district court granted the motion. Mr. Melin now appeals. Exercising our jurisdiction pursuant to 28 U.S.C. § 1291, we affirm. Civil Procedure, FLSA:
Jurisdiction: Tenth Circuit Sivetts v. Board of County Commissioners., No. 14-1050 (10th Cir., 11/13/14): http://www.ca10.uscourts.gov/opinions/14/14-1050.pdf [enhanced lexis.com version]. Any attempt to brief this detailed case would risk omitting one or more important matters. The case summary below apprises you of the issues, and Judge McHugh presents an excellent detailed discussion of them at pp. 3-20 of opinion:
Appellate court’s conclusion: Irrespective of whether the district court committed a technical violation of Rule 12(g)(2) when it considered the County’s successive 12(b)(6), it did not affect the substantial rights of the parties. Therefore, any presumed error was harmless. The Third Amended Complaint fails to state a claim upon which relief can be granted because the facts alleged indicate the County calculated overtime rates consistent with the requirements of the FLSA. Finally, the district court did not abuse its discretion when it denied leave to amend the Third Amended Complaint. We therefore AFFIRM the decision of the district court. Litigation, ADA: EEOC, subpoena, adverse employment action
Jurisdiction: Eleventh Circuit Equal Employment Opportunity Commission v. Royal Caribbean Cruises, Ltd., No. 13-13519 (11th Cir., 11/6/14) [enhanced lexis.com version]:
The entire panel of judges held that the EEOC’s administrative agency subpoena demanded production of more items than were relevant to the discrimination charge. [What this means is that the agency can have what it reasonably needs on an issue or issues, but it cannot conduct a “fishing expedition” in hopes of finding other violations.] Appellate court pertinent portions: The Equal Employment Opportunity Commission (“the EEOC” or “the Commission”) appeals the district court’s denial of the EEOC’s application for enforcement of its administrative subpoena issued to Royal Caribbean Cruises, Ltd. (“RCCL”). After careful consideration and with the benefit of oral argument, we affirm. BACKGROUND In June 2010, Jose Morabito, an Argentinean national who was employed by RCCL as an assistant waiter on one of its cruise ships, filed a charge of discrimination with the EEOC. Mr. Morabito alleged that RCCL violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112, when RCCL refused to renew his employment contract after he was diagnosed with a medical condition. Mr. Morabito had been diagnosed with HIV and Kaposi Sarcoma, but he had been declared fit for duty by his physician. RCCL responded to the charge with a position statement contending that (1) the ADA was inapplicable because Mr. Morabito was a foreign national who was employed on a ship flying the flag of the Bahamas and (2) because RCCL’s ships are registered under the law of the Bahamas, RCCL was required to follow the Bahamas Maritime Authority (“BMA”) medical standards for seafarers, which allegedly disqualified Mr. Morabito from duty at sea. After receiving RCCL’s position statement, the EEOC requested a list of all employees discharged by RCCL since 2010 pursuant to the BMA medical standards. RCCL objected, asserting that the ADA did not cover foreign nationals working on foreign-flagged ships and that the information sought was not relevant to Mr. Morabito’s charge. * * * In investigating allegations of unlawful employment practices, the EEOC is entitled to inspect and copy “any evidence of any person being investigated or proceeded against that relates to unlawful employment practices . . . and is relevant to the charge under investigation.” 42 U.S.C. § 2000e-8(a) (2012). * * * “The ‘relevance’ of documents in an administrative proceeding is a mixed question of law and fact, which implies that our standard of review of such determinations should look either to ‘legal error’ or to ‘clear error,’ depending on the circumstances.” Id. at 317–18. We review the district court’s balancing of the relative hardships and benefits of enforcement for abuse of discretion. Id. at 318. We find no error in the district court’s opinion. Breaks, Meals: “make available standard”, “alternative ensure standard”, availability, opportunities, choose to skip or leave early, class action certification denied Jurisdiction: California In re Walgreen Company Overtime Cases, No. B230191 (Ca.l.Ct.App.Dist2.Div1., 11/13/14):
This case actually is about meal breaks and whether they are compulsory or optional, can be “banked” for being used to leave early. As one might surmise from the court summary below, one ought to read the law firm article first in order to quickly grasp what the case is actually about, plus to learn the many possibilities that break time can be used for, whether an employer can require breaks to be taken, etc. Appellate court summary: This class action is about meal breaks at work. Lead plaintiff Darryl Collins charged that Walgreens violated employees’ rights to meal breaks. The trial court denied Collins’s motion for class certification. We affirm. Walgreens is a drug store chain. In a coordinated action, Collins moved for class certification on the theory that Walgreens’s stated policy on meal breaks was proper, but that Walgreens’s actual practice departed from its stated policy in an illegal and classwide way. * * * II The trial court used the proper criteria and analysis to analyze Collins’s motion. A California employers must give workers time off to eat meals at work. The law on meal breaks became clearer while this appeal was pending. In 2011, this court stayed briefing of this appeal to await the decision in the Brinker case. In 2012, our Supreme Court rendered its decision in Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal.4th 1004. Brinker illuminated the law. Before Brinker, courts were divided over (1) whether an employer must merely make meal breaks available, or (2) whether the employer must actually ensure employees take the breaks. This difference between the make available standard and the ensure standard is inobvious at first, and it does not seem that important either. But the practical consequences turn out to be great. Under the make available standard, the employer merely must make meal breaks available. That is, the employer must relieve the employee of all job duties for the meal break, and then the employer may allow employees to decide for themselves whether to take the break. This make available standard thus allows an employee to choose to skip the break and, for instance, to leave work early instead. If the employer provides a break opportunity to the worker, the employer incurs no liability if the employee then decides to skip or delay the break. * * * B The trial court used the right analysis because it correctly predicted the Brinker holding. The court said Walgreens must make breaks available for its employees, but the employer need not ensure employees actually take the meal breaks. FLSA, Civil Procedure: FRCP Rule 8 – complaint – pleading requirements, minimum wage – overtime wage Jurisdiction: Ninth Circuit Landers, et al., Quality Communications, Inc., et al., No. 12-15890 (9th Cir., 11/8/14) [enhanced lexis.com version]:
Appellate court staff summary: The panel affirmed the dismissal, pursuant to Rule 8 of the Federal Rules of Civil Procedure, of an action under the Fair Labor Standards Act, alleging failure to pay minimum wages and overtime wages. The panel held that under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), it is not enough for a complaint under the FLSA merely to allege that the employer failed to pay the employee minimum wages or overtime wages. Rather, the allegations in the complaint must plausibly state a claim that the employer failed to pay minimum wages or overtime wages. Agreeing with the First, Second, and Third Circuits, the panel held that detailed factual allegations regarding the number of overtime hours worked are not required, but conclusory allegations that merely recite the statutory language are not adequate. A plaintiff asserting a claim to overtime payments must allege that she worked more than forty hours in a given workweek without being compensated for the hours worked in excess of forty during that week. The panel held that the complaint in this case did not state a plausible claim because it did not allege facts showing that there was a specific week in which the plaintiff was entitled to but denied minimum wages or overtime wages. Title VII, ADEA, ADA: race – harassment, national origin, age, disability, adverse employment action Jurisdiction: Tenth Circuit Torres v. Bodycote International Aerospace and Defense and Energy, et al., No. 14-3115 (10th Cir., 11/19/14): http://www.ca10.uscourts.gov/opinions/14/14-3115.pdf [enhanced lexis.com version]. Summary judgment dismissal of plaintiff’s discrimination and retaliation claims was affirmed. They were based on race, national origin, age, and disability – such as, among other things, racial harassment, facility transfer denial, and being put on a twelve-hour shift. NLRB: amended remedy – fee shifting, policy – extent of “inherent authority” Jurisdiction: All HTH Corporation, et al., 361 NLRB No. 65 (10/24/14) [enhanced lexis.com version]:
According to the article, this case may indicate that aggressive policy changes can be anticipated. The employer operates a hotel in Honolulu and has a long history of unfair labor practice charges and not complying with Board and court orders, such as:
This continuing conduct resulted in the Board majority members stating that it was exercising its “inherent power” to control its proceedings by ordering the employer to:
See page 4, and following, where these remedies were described as “clearly compensatory”, not punitive, and were ordered to preserve the integrity of Board processes, serve as a deterrent to violations of Board Orders, and protect the rights of parties. On its own initiative, it also indicated that under appropriate circumstances it might order front pay rather than reinstatement. The minority strongly dissented. Breaks; meals, rest, California, Federal Aviation Administration Authorization Act of 1994 (FAAAA) – no preemption Jurisdiction: California Godfrey v, Oakland Port Services Corp., No. A139274 (Cal.Ct.App.Dist1,Div2, 10/28/14) [enhanced lexis.com version]:
California wage and hour laws for meal and rest period requirements are not preempted by the FAAAA. Appellate court summary: Named plaintiffs Lavon Godfrey and Gary Gilbert initiated this class action lawsuit against Oakland Port Services Corp., doing business as AB Trucking (AB). They alleged that AB did not pay its drivers for all hours worked, misclassified some drivers as non-employee trainees and did not pay them at all, and failed to provide required meal and rest breaks. Plaintiffs sought certification of the class of drivers who performed work for AB out of its Oakland, California facility. The trial court granted the class certification motion, and the case proceeded to a bench trial. Plaintiffs prevailed on most of their causes of action and the court awarded the class a total of $964,557.08. In a postjudgment order, the court awarded attorney fees, litigation expenses, and class representative enhancements to plaintiffs. On appeal, AB relies primarily on the argument that federal law preempts application of California’s meal and rest break requirements to motor carriers. AB also argues in passing that the court order granting class certification was unsupported by substantial evidence, but without addressing the evidence presented on the motion; that the court should have reserved individual determinations of damages for the claims administration process; that AB’s drivers are expressly excluded from coverage under Industrial Welfare Commission (IWC) Order No. 9-2001; and that the award of attorney fees and class representative enhancements should be reversed. We find no merit in AB’s preemption or other arguments and affirm. NLRB: NLRA § 303 – 29 U.S.C. § 158(b)(4)(ii)(B), secondary boycott activities, Cal. Labor Code § 1138.1(a), preemption, protesters – free speech, mall common areas – property rights, offensive misconduct, disruption, intimidation, trespass Jurisdiction: Ninth Circuit, California The Retail Property Trust v. United Bhd. of Carpenters & Joiners of Am., et al., No. 12-56427 (9th Cir., 9/23/14):
The major issue was whether the union conduct was free speech and activity protested by the NLRA, or rather efforts by the shopping mall owner’s protection of property interests and concerns property owners for customers. California had very specific laws on the matter, and the mall had express written policy governing conduct on its property. Appellate court staff summary: Reversing the district court’s grant of a motion to dismiss state-law claims and a motion for judgment on the pleadings, and affirming the dismissal of a federal claim, the panel held that § 303 of the Labor Management Relations Act did not preempt state-law claims for trespass and private nuisance related to union activity that may also have constituted secondary boycott activity. Disagreeing with the Seventh Circuit, the panel held that federal law does not so thoroughly occupy the field that it always preempts such claims. The panel held that the LMRA did not conflict with the plaintiff mall owner’s trespass and nuisance claims because the claims touched interests deeply rooted in local feeling and responsibility, and the plaintiff sought only to enforce time, place, and manner restrictions against union protesters. The panel remanded the case to the district court for consideration of the state-law claims. Non-compete: injunction, unenforceable agreement, generally known information Jurisdiction: Missouri Sigma-Aldrich Corp. v. Vikin, No. ED100575, (Mo.Ct.App.EDist,Div4, 10/14/14) [enhanced lexis.com version]:
Appellate court rationale: Sigma did not meet its burden in demonstrating that the information Defendant possessed was not known outside the business, that the information was not widely known within the company or to others involved in the business, or that Sigma had taken measures to guard the secrecy of the online marketplace and aggregation of such. Sigma further did not meet its burden in showing the value of the information to Sigma and to competitors, the amount of effort or money it had expended to develop the information, and that it would be difficult for another company to duplicate or acquire the information. Benefits, Marijuana: unemployment compensation denied, Michigan Medical Marijuana Act (MMMA) – registered patient – identification card Jurisdiction: Michigan Braska v. Challenge Manufacturing Company, No. 313932 (MICA.Dist6, 10/23/14) [enhanced lexis.com version]:
Study the decision and article. This is a developing area of the law with many complicated factors, so prudent business practice is to obtain advice from a competent employment attorney in your jurisdiction.] MMMA: A qualifying patient shall not be subjected to a “penalty in any manner” for the use of medical marijuana allowed by the Act. Though the Act broadly preempts all inconsistent statutes, it does not broadly exempt all situations, such as:
The difference between this case and Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012) [enhanced lexis.com version] was:
Appellate court summary: In these consolidated appeals, the Department of Licensing and Regulatory Affairs, Unemployment Insurance Agency (Department), appeals by leave granted circuit court orders holding that claimants were entitled to unemployment benefits. In Docket No. 313932, the Department appeals a November 9, 2012 Kent Circuit Court order reversing a decision of the Michigan Compensation Appellate Commission (MCAC) that claimant Rick Braska was disqualified from receiving unemployment benefits. In Docket No. 315441, the Department appeals a March 5, 2013 Ingham Circuit Court order reversing the decision of the MCAC that claimant Jenine Kemp was disqualified from receiving unemployment benefits. In Docket No. 318344, the Department appeals a September 5, 2013 Macomb Circuit Court order reversing the decision of the MCAC that claimant Stephen Kudzia was disqualified from receiving unemployment benefits. The common issue presented in the three cases is whether an employee who possesses a registration identification card under the Michigan Medical Marihuana Act (MMMA), MCL 333.26421, et seq., is disqualified from receiving unemployment benefits under the Michigan Employment Security Act (MESA), MCL 421.1 et seq., after the employee has been terminated failing to pass a drug test. For the reasons set forth in this opinion, we affirm the circuit court orders finding that claimants were entitled to unemployment benefits. [State actor: http://en.wikipedia.org/wiki/State_actor.] Title VII, Tennessee Human Rights Act (THRA): race, national origin discrimination, hostile workplace, adverse employment action, retaliation, disparate treatment, malicious harassment, jury verdict affirmed, remand on damages issues Download 5.55 Mb. Share with your friends:
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nstructed them to maintain all relevant documents, but