Human resources & employment law cumulative case briefs

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  Lamons Gasket - time limits for “unwinding” the results of previous organizing activity.
  
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  UGL-UNICCO - challenging union status after a merger or sale of a company.
  
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  Specialty Healthcare and Rehabilitation of Mobile, - smaller size allowed for the bargaining unit that could be organized.
  

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  he would assign them the most undesirable tasks, such as scrubbing parking lots and cleaning sewers during the winter months, but did not require non-Hispanic employees to perform these duties, and
  
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  he made anti-Hispanic comments and slurs.
  

In 2008 Kraft informed its employees it was outsourcing many positions at its Tech Center, including the positions that the five plaintiffs held. They alleged that Michalec thwarted their efforts to apply for other positions within the company. One result was that three of the plaintiffs ultimately ran out of time to find employment within Kraft or the new organization to which their former positions had been outsourced. Some examples of what they alleged Michalec did were:

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  Two of the five plaintiffs signed up to be considered one open position within Kraft; the sign-up sheet for that had been altered by crossing off their names, and they believed he had done it (those positions would have been supervised by him), and they were never considered for it.
  
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  Three of the plaintiffs applied for open sanitation positions within Kraft (which also would have reported to Michalec). Of the plaintiffs selected for one of those sanitation positions, she was given the least desirable shift, the night shift. This plaintiff alleged that no woman had ever been selected to work the night shift in a sanitation position, and when she asked him why she was assigned the night shift, Michalec allegedly replied that he placed another new-hire into the day shift position because he was “white like me [Michalec]”, plus “he had a family to take care of.”
  

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  In 2007 he used FMLA leave coinciding with July 4, Labor Day, Thanksgiving Day, Christmas Day, New Years Eve and birthday.
  
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  SWA’s monitoring showed that he tended to take round trip flights Utah on the days he requested FMLA leave.
  
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  On Christmas Eve 2007 his supervisor learned that he again had taken FMLA leave and later learned that Rydalch had been out of town when he called in his absence.
  
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  Further investigation by his supervisor showed that Rydalch booked a trip to Utah from December 22 to 27.
  
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  A call from Rydalch reporting back trouble for December 26 and 27, his next two scheduled work days.
  

ERISA: 401(k), no breach of fiduciary duties, large and broad selection of funds, some funds allegedly with excessive fees

ADA/Rehabilitation Act: failure to sufficiently identify major life activities limited, failure to relate 2007 diagnosis to 2009 alleged conditions

1. 
   due process rights in the predetermination hearing, and
   
2. 
   First amendment freedom of association by retaliating against him for hiring an attorney.
   

Public employees have a “”constitutionally protected property interest” in their employment. Law developed over the years holds that the government cannot terminate government employees without first providing them with due process of law consisting of a hearing before an adverse employment action can taken against the employee. Further, the employer must provide:

1. 
   notice of the charges made,
   
2. 
   an explanation of the employer’s evidence, and
   
3. 
   a reasonable opportunity to adequately respond.
   

1. 
   The public interest concern in the matter doesn’t apply in an association claim.
   
2. 
   Even if it did apply, hiring an attorney necessarily involved public concern because attorney-client relationships are “of concern to the community, our social way of life, [and] at the core of the core of our system of justice.”
   

1. 
   The public interest concern requirement applies to both speech and association - it is not a right to transform everyday employment disputes into matters of constitutional litigation.
   
2. 
   Merrifield was also found to not have provided any evidence that association with his attorney was ”anything more than an everyday employment dispute.”
   

ADEA: older worker replaced by computer program, replacement not a similarly situated younger worker, no age discrimination; McDonnell Douglas circumstantial proof test

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  conducting research to identify new products;
  
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  creating specifications and working with designers on products;
  
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  selecting designs produced by designers;
  
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  developing and merchandising products;
  
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  traveling overseas to inspect products; and
  
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  traveling to markets to sell products and evaluate the competition.
  

An employee who had worked for the companies for eight years, Todd Evans, was assigned to oversee the new streamlined process.

1. 
   The plaintiff must first establish a prima facie case of discrimination, which he may do by showing that he was
   
   1. 
      a member of the protected age group,
      
   2. 
      subjected to adverse employment action,
      
   3. 
      qualified to do the job, and
      
   4. 
      replaced by or otherwise lost a position to a younger individual.
      
2. 
   If the plaintiff establishes his prima facie case, then the defendant must articulate a legitimate, nondiscriminatory reason for the challenged employment action.
   
3. 
   At that point, the plaintiff must proffer evidence sufficient to permit a reasonable factfinder to conclude that the employer's reasons are a pretext for discrimination.
   

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  The Board discussed applicable precedents and held that discipline imposed pursuant to an unlawfully overbroad rule is unlawful in situations in which an employee violated the rule by engaging in protected conduct or conduct that otherwise involves concerns and protections covered by Section 7, e.g., activities such as employees' rights to organize, collectively bargain, engage in other concerted activities, and to refrain from such actions.
  
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  On the other hand, the Board also held that an employer can lawfully discipline an employee pursuant to an overbroad rule if the employee's conduct is not protected by Section 7, nor is similar conduct protected by the Act.
  

NLRB: social media guidelines memorandum: http://www.employmentandlaborinsider.com/OM%2011_74%20Report%20of%20the%20Acting%20General%20Counsel%20Concerning%20Social%20Media%20Cases.doc.pdf.

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  It cited the recent “cat’s-paw” decision, Staub v. Proctor Hospital, in which the U.S. Supreme Court held that if an action by a biased supervisor is the proximate cause of a worker's termination, an employer can be held liable even if the supervisor did not make the ultimate decision.
  
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  Because McKenna’s supervisor had testified at the PBI hearing, the appellate court concluded that the jury could reasonably have decided that the supervisor’s retaliatory animus bore a direct and substantial relation to the termination, and the PBI’s decision was not independent and it was foreseeable.
  

NLRB: unauthorized workers, labor violation, no backpay

1. 
   he was at least 40 years old,
   
2. 
   he suffered an adverse employment action,
   
3. 
   he was qualified for his position, and
   
4. 
   he was replaced by a person sufficiently younger than himself.
   

The district court concluded that Reynolds could not show that he was the subject of an adverse employment action and granted summary judgment in favor of the Army, which the appellate court affirmed based on earlier similar decisions of Seventh, Eighth, and Tenth Circuit [our jurisdiction]. It stated that a PIP “differs significantly” from the types of actions typically viewed as adverse. Notably, rather than changing the status of an employee’s position, a PIP usually conveys to the employee ways in which that person can better perform the responsibilities that he or she already has. In this instance, the appellate court pointed out, viewing a PIP as an adverse action would simply create greater frustration for employers seeking to improve and employee’s performances by taking an action that effectively would result in a discrimination claim.

However, counseling and PIPs need to clearly state achievable goals within a reasonable time period, and additional counseling, training and feedback may be necessary within the period. An unreasonable PIP or counseling session may well result in a discrimination claim. Valid business necessity and fairness count.]

1) entry of judgment in favor of the plaintiff is a necessary predicate to an award of attorneys' fees under the FLSA;

2) an FLSA case is rendered moot by payment of the full amount claimed by the plaintiff in back wages, plus liquidated damages;

3) dismissal based on mootness is not the equivalent of a judgment in favor of the plaintiff; and, therefore

4) a plaintiff in an FLSA case mooted by full payment of the claim is not entitled to an award of attorneys' fees under Section 216(b).

See Wikipedia: “Mootness”, a legal concept that a case cannot be decided because a decision would no longer have real consequences.

1. 
   Expense,
   
2. 
   Disability by association, or
   
3. 
   Distraction.
   

This case sets forth the prima facie [basically legal initial]case for a distraction theory claim. A plaintiff must prove:

1. 
   is qualified for the position;
   
2. 
   was subjected to an adverse employment action;
   
3. 
   was known to be associated with a disabled individual; and
   
4. 
   the adverse action occurred under circumstances that raise a reasonable inference that the disability of the relative was a determining factor in the decision.
   

This 6th Circuit Court of Appeals case affirmed summary judgment of the lower court ordering that a plaintiff was not entitled to trial on his ADA associational disability claim because he could not establish that he was terminated because of his association with his disabled wife.

1) failure to provide the required documentation; and