Human resources & employment law cumulative case briefs

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  that firing three employees shortly after they had made their Facebook posts complaining about working conditions constituted an unfair labor practice,
  
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  the recommendation to order the company to reinstate the employees with back wages, and
  
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  the requirement that the company to post a nationwide notice because of an unlawful policy in its handbook.
  

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  Thurber v. Aetna Life Ins. Co., (2^nd Cir., ); http://www.ca2.uscourts.gov/decisions/isysquery/0913c327-f742-463f-bb6b-aef21ee67e45/1/doc/12-370_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/0913c327-f742-463f-bb6b-aef21ee67e45/1/hilite/;
  
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  http://www.gpo.gov/fdsys/pkg/USCOURTS-ca2-12-00370/pdf/USCOURTS-ca2-12-00370-0.pdf [enhanced lexis.com version].
  

The 2^nd Circuit Court of Appeals, agreeing with the 1^st, 3^rd, 6^th and 7^th Circuits, ruled that

an ERISA plan participant does not defeat the plan’s right to reimbursement under ERISA Section 502(a)(3) by spending or comingling funds from which the plan seeks reimbursement. That statutory section allows “appropriate equitable relief” to enforce ERISA plan terms that require reimbursement., but often there are situations in which the plan pays disability benefits to a plan participant who later receives other disability benefits (such as SSDI) from a non-plan source, and the initial plan has provisions requiring reimbursement:

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  Often, plan participants have spent their disability payments by the time they receive the third party payments.
  
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  In Thurber, the situation arose when plan paid medical benefits for injuries caused by a third party and the injured party later received payment from that third party.
  

Wage and Hour: length of time of company requirements, exit security clearance check, lunch break clock-out

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   a somewhat lengthy security clearance check when leaving work and
   
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   a five-minute clock-out delay when breaking for lunch.
   

The employer’s concern was possible theft, often euphemistically referred to as “shrinkage”. This check could take up to 25 minutes and consisted of removing metal from pockets and passing through a metal detector. In ruling that the claimants had a plausible claim for relief, the appellate court allowed that issue to proceed to trial.

These were located far from the lunchroom, where the employer required employees to eat lunch. The claimants contended they were not “completely relieved from duty”, and thus entitled to pay under the Portal-to-Portal Act., which the appellate court rejected as applying only to walking before the workday begins.

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  “Discovery” of such evidence refers to trial preparation rules and methods by which a party can what evidence and/or testimony the opposition might have so that a litigant knows about it and has the opportunity to properly prepare for trial and not be surprised by it being disclosed during the trial [i.e., no trial by ambush].
  
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  “In camera” is a legal term meaning in the privacy of the judge’s chambers (Latin = camera) or the privacy of judicial office space, in order provide privacy as the evidence is reviewed for relevance and materiality [i.e. legal significance].
  

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  Milliely Nieves, a minor child over the age of 14, was claiming damages for physical and psychological injuries, which included inability to engage in social activities, anxiety, depression, and posttraumatic stress disorder.
  
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  The defendant had successfully shown to the court that the her Facebook profile contained photographs:
  
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    relevant to proof on the issue of the extent of her alleged injuries, and
    
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    that it was reasonable to believe that other portions of her Facebook records might contain further evidence relevant to that issue.
    

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  ordered the trial court to conduct an in camera review unless to do so would be unduly burdensome, or if so, then
  
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  the trial court could direct the plaintiff to conduct an initial review of her own Facebook account to limit the in camera inspection to those items whose discoverability is contested by the plaintiff.
  

U.S. Supreme court recent decisions

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  ERISA: clear and unambiguous subrogation reimbursement language was left unmodified – 3^rd Circuit Court of Appeals not allowed to revise based on its ideas of what was “fair and equitable.” McCutchen v. U.S. Airways, No. 11-1285 (4/16/13); http://www.supremecourt.gov/opinions/12pdf/11-1285_i4dk.pdf [enhanced lexis.com version].
  
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  FLSA: collective action dismissed because her suit was moot and no longer justiciable when she failed to accept an offer of judgment from her employer and she “had no personal interest in representing putative, unnamed claimants, nor any other continuing interest that would preserve her suit from mootness." Genesis Healthcare Corp. et al. v. Symczyk, No. 11–1059 (4/16/13); http://www.supremecourt.gov/opinions/12pdf/11-1059_5ifl.pdf [enhanced lexis.com version].
  

FLSA: successor corporation liable

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  Did the successor company have notice of the pending lawsuit?
  
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  Could it have been able to provide the relief sought in the lawsuit before the sale?
  
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  Could it have provided relief after the sale?
  
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  Can it provide the relief sought?
  
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  Was there continuity between the operation and work force of the predecessor and the successor?
  

FMLA: individual notice requirement, 29 CFR 825.300(b), summary judgment

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  FMLA Insights article, The Importance of Providing Individual FMLA Notices to Employees: http://www.fmlainsights.com/employer-notice/the-importance-of-providing-individual-fmla-notices-to-employees/
  
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  Regulation: http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=d178a2522c85f1f401ed3f3740984fed&rgn=div5&view=text&node=29:3.1.1.3.54&idno=29#29:3.1.1.3.54.3.489.1
  
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  Form: http://www.fmlainsights.com/WH-381%20Notice%20of%20Eligibility%20and%20Rights%20%26%20Responsibilities.pdf
  
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  Case citation: http://www.fmlainsights.com/Young%20v.%20The%20Wackenhut%20Corporation.pdf
  

Though this is a trial court opinion, the article and case provide an important reminder that employees must receive individual notice of FMLA eligibility. The employer failed to do that and the trial judge awarded summary judgment in favor of the employee.

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  had failed to substantiate its contention that it was unable to pay under the existing terms, thus violating the NLRA and
  
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  by so doing had committed a ULP.
  

The Second Circuit reversed the NLRB:

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  Concerning “ability to pay”, it found that the following were not the same as claiming an “inability to pay”:
  
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    Stating that the parent company might withdraw funding in the future if it did not get labor costs under control.
    
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    Contending during bargaining that the employer would be at a competitive disadvantage if it increased labor costs in its pricing structure.
    

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  However, and very significantly, even if the employer did have a legal obligation to provide the financial statement, it did not act in bad faith because it offered the union several opportunities to inspect the financial statement at various venues during the negotiation process. As a practical matter, then, there was an offer of disclosure that the union failed to take , which meant there was no bad faith by the employer – rather, there was good faith on its part.
  
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  ULP: It found that because Stella D’oro did not commit a ULP by refusing to provide a copy of the financial statement during the bargaining process, it did not commit a ULP when it declared an impasse in the bargaining process.
  

For these reasons, the appellate court ruled that Stella D’oro was not legally obligated to make the striking workers whole.

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  A nursing home previously unionized was purchased Grane Healthcare Co.
  
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  Grane then created Cambria Care Center to operate the facility.
  
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  The employees of the purchased entity had been represented by two unions that Grane refused to recognize after purchasing the nursing home.
  
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  Grane offered employment to most of the facility’s employees, but did not offer employment to four out of the five officers of one union, nor to an employee represented by the other union active in an earlier strike.
  

Summary by the appellate court:

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  prohibits wage discrimination based on an employee’s gender
  
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  applies to all employers with at least four employees
  
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  allows employees to bring wage discrimination claims directly in court, without first filing with any administrative agency
  
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  remedies include injunctive relief, damages, attorney’s fees, punitive damages, and potential treble damages
  

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  Relied on AT&T Mobility, LLC v. Concepcion, No. 09-893 (4/27/2011); http://www.supremecourt.gov/opinions/10pdf/09-893.pdf [enhanced lexis.com version];131 S. Ct. 1740 (2011),
  
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  Found:
  
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    an agreement that provides for a split in the cost of arbitration must be analyzed on a case-by case basis; and
    
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    a truncated statute of limitations contained outside of the arbitration clause should be reviewed by the arbitrator.
    
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  Overturned the District Court of Maryland’s March 2011 pre-Concepcion ruling.
  

Class Action: FRCP 23 classwide certification denied, damages must be measurable on a class-wide basis