Human resources & employment law cumulative case briefs

;http://www.nmcompcomm.us/nmcases/NMCACurrent.aspx/NMCA/2011/11ca-117.pd

{2} In March 2008, a union filed a petition with the State Public Employer Labor Relations Board to represent full-time faculty on nine-month contracts at the College. The petition was dismissed by the state board and remanded to the Board on the College’s motion. At the local Board, the College challenged the appropriateness of the proposed bargaining unit as too narrow and sought to include all full-time faculty on nine- and ten-month contracts, as well as full-time instructional professionals with 100%, 80%, 60%, and 50% instructional duties. These percentages reflect a division in the workload for those persons between instructional and administrative duties. For instance, the 60% instructional professional would also be employed to perform 40% of their work as an administrator. The Board held a hearing and took testimony and other evidence. At the hearing, Michael Tacha, Vice President for Learning, testified to the faculty structure at the College and gave his opinion that, as to the fractional duties of employees, management and administrative duties were comparable. The Board issued its decision that the appropriate bargaining unit would include full-time faculty on both nine- and ten-month contracts, and full-time instructional professionals with 100% instructional duties. The bargaining unit would exclude full-time instructional professionals with less than 100% instructional duties, administrative and managerial staff, and all others.

ontrolling law? Check with your employment law attorney on the possible implications of this case for your company and employees. On December 13, 2011, in Sullivan v. Oracle Corporation the 9^th Circuit confirmed that nonresident employees are subject to California's overtime laws when they perform work in that state. Thus, employers with operations or even temporary work in California probably will be required to comply with the California Labor Code, depending on the specific situation. Further, be aware that California labor law requires that overtime must be paid for time over eight hours in a work-day, as opposed to over forty hours in a work-week [http://www.dir.ca.gov/dlse/faq_overtime.htm]. So, consult with your employment attorney rather than hiding from the requirements.

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  Sullivan and Evich resided in Colorado, and
  
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  Burkow resided in Arizona.
  

for overtime pay:

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  In the plaintiffs’ federal class action lawsuit, the trial court granted Oracle's summary judgment motion and held that California's overtime laws did not apply to nonresidents who work primarily in other states.
  
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  In 2008, the Ninth Circuit reversed the district court and held that California's overtime laws apply to nonresident employees when they perform work in California.
  
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  Later, the Ninth Circuit later withdrew its 2008 opinion and requested the California Supreme Court to issue an opinion concerning the application of California overtime laws to nonresident employees.
  
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  The California Supreme Court came to same conclusion as the Ninth Circuit's 2008 opinion and held that California's Labor Code applies to nonresidents.
  
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  In its 2011 opinion, the Ninth Circuit applied the reasoning of the California Supreme Court's opinion, plus it addressed Oracle's arguments that applying California law to nonresidents violated Oracle's rights under the federal due process clause and the commerce clause. Rejecting both of Oracle’s arguments, the 9^th Circuit reasoned that Oracle had sufficient contacts with California to warrant the application of California law to its employees and cited the fact that Oracle's headquarters and principal place of business were located in California, and that the decision to classify the plaintiffs as instructors and deny them overtime pay was made in California, and the work in question was performed in California.
  

[Note: This is a clear notice to employers of the need to review their pay policies and practices it light of the facts and law in this.]

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  Previously Singh had performed successfully in high school and college. However, she scored low on the Medical College Admission Test (MCAT), and thus was admitted into GWU’s decelerated program that allowed students to complete the standard first-year curriculum over a two year period.
  
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  Following that she struggled with her coursework, receiving failing grades or grades below GWU’s standard deviation requirement in multiple courses. That called her to the attention of GWU’s Medical Student Evaluation Committee (MSEC) that makes recommendations to the Dean regarding the dismissal of students for deficient academic performance.
  
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    Twice she was advised to retake courses she had failed and to take certain steps to improve her performance.
    
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    At her third appearance before the MSEC, in January 2003, MSEC recommended to the Dean that she be dismissed for poor academic performance.
    
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  GWU has a center providing disability support services, and Singh also met with a psychologist for diagnostic testing. In February of 2003 the psychologist reported that Singh had dyslexia and a mild processing disorder that affected her ability to take tests, and the psychologist recommended a number of accommodations.
  
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  In March 2003, and after receiving a copy of the report, the Dean notified Singh that she was dismissed from GWU.
  

Singh sued based on a claim alleging failure to accommodate in violation of the ADA. The case was tried to a judge sitting with no jury (apparently she waived jury trial). The district court concluded that though she demonstrated that she had a mental impairment, she had failed to show that the impairment caused a substantial limitation in the major life activities of learning, in general, and test-taking, in particular, and thus entered judgment in favor of GWU. Note, too, that the dean testified that the psychologist’s report played no role in that decision.

1. 
   the district court used an incorrect comparison group to analyze whether Singh was substantially limited in a major life activity, stating it ought to have analyzed her limitation in comparison to the general population, and
   
2. 
   the district court framed the term “major life activity” too narrowly, i.e., as ability to take tests rather than ability to learn.
   

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  It was unnecessary to reach the issue of whether Singh had a sufficient impairment or whether that alleged impairment substantially limited a major life activity because the “district court’s factual finding on causation . . . alone doom[ed] her case.”
  
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  The district court “identified ‘many reasons aside from [Singh’s] impairment that might explain why [she] has done relatively poorly on extremely time-limited tests.” Singh had anxiety over the difficulty of the medical school environment, was extensively involved in extracurricular activities, had poor study habits, and experienced distress over the attacks of September 11, 2001 – any of which could have affected her academic performance.
  
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  Though Singh demonstrated that she consistently performed more poorly on multiple-choice tests (which are the typical assessments used in medical school) than on other types of assessments, the district court found that evidence “failed to close the causal gap between her mental impairment and her limitation in learning, as distinct from test-taking alone”
  

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  Have employees been trained in their rights and responsibilities relating to the timekeeping system and how it workers?
  
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  Similarly, have supervisors and managers been properly trained?
  
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  Is the timekeeping system accurate?
  
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  Be alert to possible complaints about having to work a few minutes before a scheduled shift that may be compensable under the FLSA because that might be considered to be notice of compensable time.
  
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  There are a couple of legal doctrines operating here:
  

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  “preliminary work”, or the de minimis doctrine, that is incidental and not necessarily part of the job, and
  
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  work performed by an employee that is integral and indispensible to an employee’s principal work, or the principal work of others, such as distributing materials or readying a workstation.
  

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  5 minutes unlocking doors, turning on lights, turning on equipment, and punching into the time clock;
  
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  5 minutes preparing coffee for herself and the rest of the employees;
  
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  5-10 minutes (or longer) gathering material and distributing it to her subordinates’ workstations; and
  
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  5 minutes taking a coffee / smoking break, plus
  
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  spent the remaining amount of time performing other tasks in preparation for the beginning of her subordinates’ shifts.
  

Kellar resigned sometime later and sued for overtime pay under the FLSA and the Indiana wage claims act. In her deposition testimony she it would have been “a hassle” to show up at the regular starting time of 5 a.m. and get her subordinates prepared in time for the beginning of their 5 a.m. shifts. Typically, her supervisors arrived about two to three hours later, but she never told them about her early arrival and activity before clocking in, nor did ever requested overtime for this work, report any errors on her paycheck relating to the same, ever disclose at any meetings with her supervisors that her schedule needed to be adjusted to accommodate this activity.

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  The appellate court initially ruled that the plaintiff’s pre-shift work was actually non-preliminary, i.e., compensable, because, among other things, the employer apparently derived significant benefits from the plaintiff’s pre-shift preparations.
  
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  Next, the court found that the “de minimis” doctrine did not apply to her pre-shift work because the current consensus among courts is that a few seconds or minutes of work beyond an employee’s scheduled working hours can be disregarded, when in dispute, even though such time would otherwise be considered compensable. However, in this case her alleged pre-shift time of 15-45 minutes (excluding the 5-minute break), which went significantly beyond the typical 10-minute rule-of-thumb. The employer could not cite any case law that had found pre-shift time more than 10 minutes in length to be “de minimis,” and the appellate court held that rule was in applicable.
  
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  And now for the key ruling in this case: her pre-shift time was not compensable because she failed to show that her supervisors had actual or even constructive knowledge of her overtime work. [Note: Basically, reasonably “should have known” - by application of reasonable care or diligence if a person should have known a fact, he or she is deemed to have constructive knowledge of that fact - generally, a person is presumed by law to have constructive knowledge about specific fact or condition.]:
  

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  She conceded that most employees who clocked in early did not perform work until their shift began.
  
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  Her behavior did not raise any red flags:
  

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  did not record her pre-shift time – rather she consistently indicated on her time cards that she arrived at the beginning of her shift, not before it, and
  
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  attended weekly meetings with her supervisors in which schedules were discussed, but never disclosed that she had worked pre-shift time or complained about the same.
  

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  sexual orientation (i.e., heterosexuality, homosexuality or bisexuality – either actual or perceived), and
  
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  gender identity (i.e., a person's self-perception or perception by others as identity as male/female based on appearance, behavior or physical characteristics either in accord with or opposed to physical anatomy, chromosomal sex, or birth sex). http://law.justia.com/codes/new-mexico/2006/nmrc/jd_28-1-2-bcab.html.
  

Next, it is important to note that this case involves a public sector employee rather than one in the private sector. Government employees have certain rights under the Constitution and it Bill of Rights, and/or similar state constitutional rights that private sector employees do not have. Thus, at this point this case is controlling authority only in the Eleventh Circuit. It wind up in the United States Supreme Court, at which time it could become controlling law, but until then it is merely something to consider and perhaps anticipate.

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  Initially hired in October 2005 by the Georgia General Assembly in October 2005, Glenn then known as Glenn Morrison.
  
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  In 2006 Glenn told her direct supervisor of the process of becoming a woman.
  
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  On Halloween employees were allowed to come to work in costume, and Glenn came to work dressed as a woman. Glenn was told that her appearance was inappropriate and she was asked to leave the office “[b]ecause he was a man dressed as a woman and made up as a woman” and, according to Glenn, “it’s unsettling to think of someone dressed in women’s clothing with male sexual organs inside that clothing” and that a male in women’s clothing is “unnatural.”
  
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  In the fall of 2007 Glenn informed her direct supervisor that Glenn:
  
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    was ready to proceed with gender transition and would begin coming to work as a woman,
    
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    would be changing her legal name.
    
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  Soon after that Glenn’s employment was terminated allegedly because “Glenn’s intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make Glenn’s coworkers uncomfortable.”
  

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  “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes” and, therefore, is entitled to protection from sexual discrimination.
  
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  all people, whether transgender or not, are protected from discrimination on the basis of “gender stereotype.”
  
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  A gender classification fails unless it is substantially related to a sufficiently important governmental interest, i.e., “sufficiently important governmental purpose” needs to be demonstrated, which the employer failed to do.
  

1. 
   it’s the right thing to do, and
   
2. 
   as a practical matter, defending and winning a case like this is expensive.
   

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  violations of the ADA by asking her questions unrelated to essential job functions in a preemployment medical examination;
  
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  discrimination against her on the basis of sex in violation of Title VII because only women were required to respond to questions about sexual activity; and
  
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  violations her constitutional right to privacy by inquiring into her private sexual life.
  

Alpena moved for summary judgment in its favor, which the trial court denied, which means Garlitz is entitled to a trial by a jury.

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  Alpena’s basis for requesting dismissal of all of her claims was that it withdrew its offer solely because of her attitude demonstrated in her interactions with the hospital’s staff and the clinic.
  
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  The trial courts analysis was:
  
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    ADA: The Act prohibits employers from conducting a pre-offer medical examination or making pre-offer inquiries regarding disability status or the nature or severity of a disability. Once an employer has made a “real offer of employment,” the ADA permits an “employment entrance examination” that includes topics unrelated to job functions [though the ultimate employment decision must still be based on whether the employee can perform the essential functions of the job with or without reasonable accommodation]. However, for a job offer to be “real,” the employer must have evaluated all relevant non-medical information that it reasonably could have obtained and analyzed prior to making the offer. Thus, the court concluded, the hospital may not have obtained all reasonably available non-medical information regarding the plaintiff’s attitude before extending the conditional offer, and so there was a question of fact as to whether a “real offer” had been made to the plaintiff and the hospital’s actions violated the ADA.
    
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    Title VII: The hospital did not contest that the clinic’s form was facially discriminatory. Rather, it argued that hospital was not responsible for the questions posed in the clinic’s form. The court found that though that argument presented a “closer question,” nevertheless, it held that there was a genuine issue of material fact as to whether clinic was the hospital’s agent for purposes of the preemployment screen.
    
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    Privacy: The court rejected Alpena’s argument that public employers may inquire about an employee’s private sexual life if the inquiry is job related, noting that the hospital failed to explain how its inquiry into the plaintiff’s private sexual life is “related” to the job she applied for.
    

[And, might there also have been a potential violation of the Pregnancy Act?]

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  How serious is the misconduct? The worse it is the more the need for prompt action.
  
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  What is the reason for the FMLA leave? If it is for a major medical problem with the patient in an extreme and vulnerable condition, then probably caution and delay is essential.
  
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  What difficulties might there be in communicating with the employee, and what effect might discussing the alleged misconduct have on the employee’s medical condition and recovery?
  
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  How has the employer handled other such similar problems in the past so that a claim of disparate treatment might be raised?
  

1. 
   perhaps acting too soon and seeming to interfere with FMLA leave and
   
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   not acting soon enough to investigate and take appropriate action.
   

Adams claimed retaliation for taking FMLA leave. The issue for the appellate court was whether her employer's decision to wait two months until she returned to work before bringing the alleged incident to her attention and terminating her employment indicated a discriminatory motive on Fayette's part. The court decided that it did not because it knew the duration of her FMLA leave in advance and that it involved major surgery and recovery. The appellate court concluded that if the employer had intended to retaliate for taking FMLA leave, it had no reason to wait until her leave ended.

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  must be related to the job,
  
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  must be consistent with a valid business necessity, which means it must accurately measure an applicant’s ability to perform the fundamental responsibilities of the job in question, and
  
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  once that is determined, an employer also must show that an individual would be unable to perform the essential functions of the job even with a reasonable accommodation.
  

Pay: Am I Obligated to Pay a Pro Rata Bonus to Employees No Longer With The Company?

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  After asking one of the four employees, Magdic, if he was ready to retire, the company's CEO said, "it looks like you are ready to retire. You have gray hair and are fat;"
  
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  One of the employees, Crossan, was transferred to a different position because the employer wanted "new blood" in the department;
  
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  the CEO mentioned the need to recruit a "younger workforce;" and
  
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  During meetings, older supervisors sat at one end of the table and were routinely interrupted when they tried to speak, whereas younger employees were encouraged to speak.
  

Now then, because the reasoning of the trial and appellate courts is valuable and detailed, here is the detailed analysis and reasoning here:

It declined to review the Second Circuit’s Novartis holding that pharmaceutical sales representatives do not qualify for the outside sales exemption because they do not make sales, and the District of Connecticut had recently found that Schering’s pharmaceutical sales representatives did not meet the administrative exemption test, which is counter to Third Circuit’s Johnson & Johnson decision. The two issues on appeal in the United States Supreme Court will be:

1. 
   Whether deference is owed to the Secretary of Labor’s interpretation of the outside sales exemption and related regulations; and
   
2. 
   Whether the FLSA’s outside sales exemption applies to pharmaceutical sales representatives.
   

Information Rights: social-media log-in information, who owns it?, employer demands return; injunction

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  she was responsible for maintaining the company's websites, blogs, and social-media pages for marketing purposes, and
  
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  she possessed sole control of all passwords and related information necessary to access the sites.
  

When she left the company Ardis demanded that she return the access information because the company had been unable to access the sites or update content. In that effort, the company filed a petition for a preliminary injunction [which is a necessary step in determining by a judge whether there are sufficient grounds to issue a permanent injunction].

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  The court found that the employer would be irreparably harmed if the access information was not returned prior to a final trial on the merits because, without that information, the employer precluded from continuously updating its profiles and pages and from reacting to online trends.
  
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  She had contended that there was no irreparable harm because the pages had not been updated for two years prior to her termination. However, in rejecting that argument, the court rejected this argument stated that it was the defendant's responsibility to update the sites, so she could not use her own failure to perform her duties as a defense.
  
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  Additionally, the court noted that new opportunities may arise and the employer would not be able to update because the employee might still be withholding the access information.
  

NLRA: unfair labor practice (ULP), terrible haircut, hat worn at work, dress code, disparate application of policy, disparate treatment, “substantial evidence” that employee had joined with other employees to challenge the policy, concerted activity, Internet discussion, adverse employment action, NLRA Section 7 rights