Human resources & employment law cumulative case briefs
Jurisdiction: Tenth Circuit, Colorado
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Jurisdiction: Tenth Circuit, Colorado Benton v. Town of South Fork, et al., No. 14-1127 (10th Cir., 9/24/14); http://www.ca10.uscourts.gov/opinions/14/14-1127.pdf [enhanced lexis.com version]. Summary by the appellate court: Mr. Denny Benton is a former police officer who was forced to resign from the Police Department for the Town of South Fork. In the amended complaint, he alleges race discrimination, age discrimination, retaliation, legal malpractice, defamation, and failure to release records. The district court summarily dismissed the action. Mr. Benton appeals and seeks leave to proceed in forma pauperis. We grant leave to proceed in forma pauperis. In the appeal, we affirm in part and remand in part. We affirm the dismissal on the claims involving race discrimination, age discrimination, and retaliation. The court failed to acknowledge state claims under the Colorado Anti-Discrimination Act and the Colorado Open Records Act. But, these claims were facially deficient; thus, any error in failing to address these claims would not have been prejudicial. We would be left with two state-law claims not discussed by the district court: legal malpractice and defamation. We remand for the district court to address these claims in the first instance. NLRB: Beck obligations, new employee notification – timing Jurisdiction: All United Food & Commercial Workers Local 700, 361 NLRB No. 39 (9/10/14):
Background: Communications Workers of America v. Beck, 487 U.S. 735 (1988) involved a union, and it held that unions are authorized by statute to collect from non-members only those fees and dues necessary to perform its duties as a collective bargaining representative. Its reasoning was that employees who benefit from union negotiations ought to pay for the union’s efforts on behalf of all employees involved in the matter, i.e., no “free ride”. Deductions from non-union employee pay are referred to as “reduced fees and dues” because those employees are not charged for all other union activities. Board introduction: This case concerns the timing of a union’s notification to employees subject to a union-security clause of the specific amount of reduced fees and dues they would pay if they become nonmembers and object to paying for union activities not germane to its duties as their collective- bargaining representative. Under established Board precedent, a union is not required to calculate and provide such detailed information until an employee elects nonmember status and then takes the additional step of objecting to paying for nonrepresentational expenses. Here, the Union properly relied on that precedent when it did not advise the Charging Party of the specific amount of the reduced dues and fees applicable to nonmember objectors upon her hire by Kroger Limited Partnership (Employer), but did timely provide her with that information once she resigned her membership and requested objector status. Title VII, Public Sector: sex, race, religion, adverse employment action – “legitimate, no “property interest in job”, retaliation, McDonnell Douglas – “nondiscriminatory reasons for discharging”, failure of proof – summary judgment dismissal affirmed Jurisdiction: Tenth Circuit Stewart v. State of Oklahoma, et al., No. 14-6010 (9/25/14); http://www.ca10.uscourts.gov/opinions/14/14-6010.pdf. The ruling in this case depended on its unique facts and no new law was involved. Title VII, ADA:
Jurisdiction: Tenth Circuit Smith v. United Parcel Service, Nos. 13-1483 & 14-1129 (10th Cir., 9/5/14); http://www.ca10.uscourts.gov/opinions/13/13-1483.pdf [enhanced lexis.com version]. This case was tired unsuccessfully a few times by the plaintiff himself, and this decision is based on the unique facts involved. However, it may contain some useful analysis helpful to litigators representing either plaintiffs or defendants. FEHA: fitness for duty (FFD) examination – "job-related and consistent with business necessity", coworker safety – fear – angry confrontations – rage Jurisdiction: California Kao v. The University of San Francisco et al., No. A135750 (Cal.Ct.App.Dist1.Div3, 9/2/14):
The employee contended the FFD examination was a medical exam prohibited by the FEHA because argued that the FFD could not be job-related or necessary without the University's first engaging in the "interactive process" that is part of the "reasonable accommodation" process. However, the appellate court disagreed. Summary by the appellate court: Plaintiff John S. Kao sued the University of San Francisco (USF) for violations of the Fair Employment and Housing Act (Gov. Code, § 12900 et seq. (FEHA)), the Unruh Civil Rights Act (Civ. Code, § 51 et seq.), and the Confidentiality of Medical Information Act (Civ. Code, § 56 et seq.) in connection with the events surrounding his termination as a professor at USF. He also asserted causes of action against USF for violation of his right to privacy (Cal. Const., art. 1, § 1), and against USF and its Assistant Vice President for Human Resources, Martha Peugh-Wade, for defamation. USF directed Kao to have a fitness-for-duty examination after faculty members and school administrators reported that his behavior was frightening them, and the university terminated his employment when he refused to participate in the examination. The court granted a nonsuit against Kao on the defamation cause of action, and a jury ruled against him on his other claims. Kao contests the judgment on multiple grounds, but his principal contention is that USF could not lawfully require the examination. We disagree and affirm the judgment for USF. Wage and Hour: FLAS, California law, class certification – FRCP 23(a)(2) – commonality requirement, due process Jurisdiction: Ninth Circuit, California Jimenez, et al. v. Allstate Insurance Company, No. 12-56112 (9th Cir., 8/314): http://case.lawmemo.com/9/jimenez.pdf [enhanced lexis.com version]. Shaw Valenza law firm article at http://shawvalenza.blogspot.com/2014/09/9th-circuit-upholds-statistical.html. In 2005, Allstate reclassified its adjusters to non-exempt and from time sheets or work clocks to payment based on a set standard of eight hours per day on a 40-hour week. About 800 adjusters claimed unpaid wages for off-the-clock work performed. Summary by the court staff: Class Certification The panel affirmed the district court’s grant of class certification to about 800 Allstate Insurance Company employees in California who alleged that Allstate had a practice or unofficial policy of requiring its claim adjusters to work unpaid off the-the-clock overtime in violation of California law. The panel held that the district court did not abuse its discretion in applying Fed. R. Civ. P. 23(a)(2)’s commonality requirement. The panel also held that the class certification order did not violate Allstate’s due process rights. Specifically, the panel held that the class certification order preserved Allstate’s opportunity to raise any individualized defenses at the damages phase, and that the district court’s approval of statistical modeling did not violate Allstate’s due process rights. Wage and Hour: minimum wage and/or overtime liability, joint employer class actions - "joint employer doctrine", Washington Minimum Wage Act (WMWA) – 49.46 RCW, FLSA standard adopted – 29 U.S.C. §§ 201-219, opt-out provision Jurisdiction: Washington Becerra v. Expert Janitorial, LLC, No. 89534 (WASC, 8/7/14):
When courts find the precedents of other courts persuasive and follow them, welcome uniformity of reasoning and results. In this case the Washington Supreme Court used the FLSA's "economic reality test” and the nonexclusive list of factors articulated in Torres-Lopez v. May, 111 F.3d 633, 638 (9th Cir. 1997). Because of the details involved and the helpful factors provided in this first-impression opinion, reading the law firm article is recommended. Summary by it Supreme Court: The plaintiffs before us worked as night janitors for subcontractors in various Puget Sound Fred Meyer grocery stores. They allege that they regularly worked well over 40 hours per week without being paid either minimum wage or overtime as required by Washington's Minimum Wage Act (MWA), chapter 49.46 RCW. The merits of their action are not currently at issue. Rather, at issue is whether Fred Meyer Stores Inc. and Expert Janitorial LLC are joint employers of the janitors for purposes of the act. The MW A is based on the federal Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. §§ 201-219, and we look to FLSA jurisprudence in interpreting it. While this court has never specifically held that the "joint employer" doctrine is a viable theory under the MW A, consistent with the interpretations of the FLSA, liability under minimum wage laws may extend to 'joint employers" · even when there is no formal employment relationship. The trial court dismissed the plaintiffs' joint employer claims against Fred Meyer and Expert, a middleman, at summary judgment. We find that summary judgment was improperly granted on this record and remand for further proceedings consistent with this opinion. NLRB: protected concerted activity, online behavior, “like”, NLRA § 7 Jurisdiction: All Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31 (8/22/14):
Danger, Will Robinson, danger!
There is a possibility that under some circumstances merely clicking on “Like” (or perhaps a similar type feature) might be characterized by the Board as protected concerted activity. This area of the law is becoming as dangerous as tap dancing in a minefield, so study these types of cases and the law firm articles and also get expert assistance and advice. Whistleblower: Wall Street Reform and Consumer Protection Act (Dodd-Frank), extraterritorial application – foreign worker – all event outside USA – no protection, no “clear congressional intent” Jurisdiction: Second Circuit Liu Meng-Lin v. Siemens AG, No. 13-4385 (2nd Cir., 8/14/14):
Summary by the appellate court: Plaintiff‐appellant Liu Meng‐Lin sued defendant‐appellee Siemens AG (“Siemens”), his former employer, alleging that Siemens retaliated against him in response to his disclosures of alleged corrupt conduct, and that Siemens thereby violated the whistleblower antiretaliation provision of the Dodd‐Frank Act, 15 U.S.C. § 78u‐6(h)(1). The United States District Court for the Southern District of New York (William H. Pauley, III, Judge) granted Siemens’s motion to dismiss with prejudice, holding that the antiretaliation provision does not apply extraterritorially, and that, on the facts alleged by Liu, the complaint sought an extraterritorial application of the statute. Because a statute is presumed, in the absence of clear congressional intent to the contrary, to apply only domestically, and because there is no evidence that the antiretaliation provision is intended to have extraterritorial reach, we conclude that that provision does not apply extraterritorially. We furthermore conclude that because Liu’s complaint alleges that he was a non‐citizen employed abroad by a foreign company, and that all events allegedly giving rise to liability occurred outside the United States, applying the antiretaliation provision to these facts would constitute an extraterritorial application of the statute. Arbitration: at-will, employer able to modify agreement – illusory, continued employment – insufficient consideration Jurisdiction: Missouri Baker v. Bristol Care, Inc., et al., No. SC93451 (MOSC, 8/19/14):
Summary by its Supreme Court: Bristol Care Inc. and David Furnell (Appellants) appeal an order overruling their motion to compel arbitration. They contend that the circuit court erred by not compelling arbitration because the arbitration agreement between Bristol and its employee, Carla Baker, is valid and enforceable. This Court affirms the circuit court’s order because there was no consideration to create a valid arbitration agreement.1 First, Baker’s continued at-will employment does not provide consideration for the arbitration agreement. Second, the fact that Bristol retroactively could modify, amend or revoke the agreement means that Bristol’s promise to arbitrate is illusory and does not constitute consideration for Baker’s agreement to arbitrate. * * * 1 The lack of an enforceable arbitration agreement between Bristol and Baker renders it unnecessary to consider the remaining points on appeal. Those points consist of Appellants’ argument that the agreement was not unconscionable and that it did not apply to Furnell as Bristol’s president. NLRB: Facebook, “liking”, protected activity – concerted Jurisdiction: All Triple Play Sports Bar and Grille, 361 NLRB No. 31 (8/22/14):
Read the case and the law firm article for an explanation of this complex social medial problem and where the Board seems to be headed with social media activity.
NLRB: “Write Line” analysis, emails to supervisor – tone – disrespect, adverse employment action, protected activity – concerted Jurisdiction: All Hitachi Capital America Corp. and Virginia Kish, 361 NLRB No. 19 (2014)
Must employers and human resources become expert grammarians when interpreting whether an email or a series of them have a disrespectful tone? Once again, read the case and the law firm articles for an explanation of this complex social medial problem and where the Board seems to be headed with social media activity. [FYI: Write Line case at http://www.gibbonslaw.com/files/Wright-Line-nlrb-1980.pdf.] [enhanced lexis.com version] NLRB: sick leave policy, protests – criticism – limits, public health, NLRA § 8(a)(3), adverse employment action Jurisdiction: All MikLin Enterprises, D/B/A Jimmy John’s, 361 NLRB No. 27 (8/21/14):
The conduct in question:
Franchise: avoiding risk, independent contractor status, agency, harassment, liability – imputed – vicarious, control – “means and manner” of the operations, “totality of circumstances” Jurisdiction: California Patterson v. Domino‘s Pizza, LLC, et al., No. S204543 (CASC, 8/18/14):
Summary by its Supreme Court: Franchising, especially in the fast-food industry, has become a ubiquitous, lucrative, and thriving business model. This contractual arrangement benefits both parties. The franchisor, which sells the right to use its trademark and comprehensive business plan, can expand its enterprise while avoiding the risk and cost of running its own stores. The other party, the franchisee, independently owns, runs, and staffs the retail outlet that sells goods under the franchisor‘s name. By following the standards used by all stores in the same chain, the self-motivated franchisee profits from the expertise, goodwill, and reputation of the franchisor. In the present case, a male supervisor employed by a franchisee allegedly subjected a female subordinate to sexual harassment while they worked together at the franchisee‘s pizza store. The victim, who is the plaintiff herein, sued the franchisor, along with the harasser and franchisee. The plaintiff claimed that because the franchisor was the ―employer‖ of persons working for the franchisee, and because the franchisee was the ―agent of the franchisor, the latter could be held vicariously liable for the harasser‘s alleged breach of statutory and tort law. The trial court granted summary judgment for the franchisor on the ground the requisite employment and agency relationships did not exist. The Court of Appeal disagreed, and reversed the judgment of the trial court. We granted review to address the novel question dividing the lower courts in this case: Does a franchisor stand in an employment or agency relationship with the franchisee and its employees for purposes of holding it vicariously liable for workplace injuries allegedly inflicted by one employee of a franchisee while supervising another employee of the franchisee? The answer lies in the inherent nature of the franchise relationship itself. Over the past 50 years, the Courts of Appeal, using traditional ―agency‖ terminology, have reached various results on whether a franchisor should be held liable for torts committed by a franchisee or its employees in the course of the franchisee‘s business. In analyzing these questions, the appellate courts have focused on the degree to which a particular franchisor exercised general ―control over the ―means and manner of the franchisee’s operations. Meanwhile, franchising has seen massive growth. A franchisor, which can have thousands of stores located far apart, imposes comprehensive and meticulous standards for marketing its trademarked brand and operating its franchises in a uniform way. To this extent, the franchisor controls the enterprise. However, the franchisee retains autonomy as a manager and employer. It is the franchisee who implements the operational standards on a day-to-day basis, hires and fires store employees, and regulates workplace behavior. Analysis of the franchise relationship for vicarious liability purposes must accommodate these contemporary realities. The imposition and enforcement of a uniform marketing and operational plan cannot automatically saddle the franchisor with responsibility for employees of the franchisee who injure each other on the job. The contract-based operational division that otherwise exists between the franchisor and the franchisee would be violated by holding the franchisor accountable for misdeeds committed by employees who are under the direct supervision of the franchisee, and over whom the franchisor has no contractual or operational control. It follows that potential liability on the theories pled here requires that the franchisor exhibit the traditionally understood characteristics of an ―employer or ―principal; i.e., it has retained or assumed a general right of control over factors such as hiring, direction, supervision, discipline, discharge, and relevant day-to-day aspects of the workplace behavior of the franchisee‘s employees. (See Vernon v. State of California (2004) 116 Cal.App.4th 114, 124 (Vernon) [considering ―the totality of circumstances‘ that reflect upon the nature of the work relationship of the parties‖].) Here, the franchisor prescribed standards and procedures involving pizza-making and delivery, general store operations, and brand image. These standards were vigorously enforced through representatives of the franchisor who inspected franchised stores. However, there was considerable, essentially uncontradicted evidence that the franchisee made day-to-day decisions involving the hiring, supervision, and disciplining of his employees. Plaintiff herself testified that after the franchisee hired her, she followed his policy, and reported the alleged sexual harassment to him. The franchisee suspended the offender. Nothing contractually required or allowed the franchisor to intrude on this process. Plaintiff highlights the franchisee‘s testimony that a representative of the franchisor said the harasser should be fired. But, consistent with the trial court‘s ruling below, any inference that this statement represented franchisor ―control‖ over discipline for sexual harassment complaints cannot reasonably be drawn from the evidence. The uncontradicted evidence showed that the franchisee imposed discipline consistent with his own personnel policies, declined to follow the ad hoc advice of the franchisor‘s representative, and neither expected nor sustained any sanction for doing so. For these reasons, we will reverse the Court of Appeal‘s decision overturning the grant of summary judgment in the franchisor‘s favor. Trade Secrets: Tennessee’s Uniform Trade Secret Act (TUTSA), definitions – legislative preemption – common law Download 5.55 Mb. Share with your friends:
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