Human resources & employment law cumulative case briefs

• 
  the employee has the initial burden to come forward with a prima facie case proving discrimination (i.e., essentially a burden of proof), then
  
• 
  the employer must show a legitimate business reason for its actions (i.e., the burden of coming forward with evidence that it did not discriminate); and finally
  
• 
  the ultimate burden is on the employee to prove that the employer's reason is a pretext for discriminatory motive (i.e., the plaintiff bears to burden of proof – not merely showing – a right to recover).
  
  
  

In the trial court the judge instructed the jury that the plaintiff must prove she was denied reinstatement "without reasonable cause". The appellate court ruled this was the wrong legal standard, and it set forth the following applicable law and procedure:

• 
  Plaintiff’s required proof: On appeal, the court relied on this reasoning of the Sixth and Seventh Circuits of proof that . . .
  

. . . have ably summarized the elements of an employee’s prima facie case where the employer fails to reinstate the employee: “the employee must establish that: (1) he was eligible for the FMLA’s protections, (2) his employer was covered by the FMLA, (3) he was entitled to leave under the FMLA, (4) he provided sufficient notice of his intent to take leave, and (5) his employer denied him FMLA benefits to which he was entitled.” [citations] We agree with this approach. In interference claims, the employer’s intent is irrelevant to a determination of liability.. . .

• 
  Defendant’s required proof: If the employee establishes a prima facie case, then the employer bears the burden of establishing that the employee was not entitled to reinstatement, i.e., the employer must prove that the employee was denied reinstatement for one of the reasons stated by the FMLA, for example, that the employee would not have remained employed if she had not taken leave. [Note: This approach is strict statutory interpretation and construction.]
  

Consequently, the appellate court vacated the judgment in the city's favor and remanded the case to lower court for a new trial using the proper elements of proof, as stated above, and procedure of presenting each party’s case.

• 
  A group of Continental airline pilots alleged various violations of USERRA, including allegations that they had experienced a hostile work environment on the basis of their military service.
  
• 
  The trial court recognized that USERRA “expressly prevents the denial of benefits of employment to members of the uniformed service by their employers.”
  
• 
  Disagreeing with the trial court, the appellate court construed USERRA narrowly and strictly and denied the hostile work environment claims of the pilots.
  

FLSA: complaint defined, “filed any complaint”; judicial interpretation of wording, statute, regulation, rule, handbook or an email; anti-retaliation provision, protected activity

1. 
   Concerning the plain language of the statute, what about the term "filed" as used in the FLSA anti-retaliation provision. It cited a wide range of sources, including dictionaries, judicial opinions, statutes and regulations. Justice Breyer wrote "[t]he word filed has different relevant meanings in different contexts" leading to the conclusion that even oral complaints can be "filed." He also noted that several federal administrative agencies (including the Department of Labor and the Equal Employment Opportunity Commission) allow the filing of oral complaints and further noted that due to "Congress' delegation of enforcement powers to federal administrative agencies" the Supreme Court could give deference to these administrative agencies' views of the use of the term.
   
2. 
   Next, Justice Breyer discussed Congress' intent in originally enacting the FLSA in 1938 within the context of the employees the act was designed to protect, and he noted that President Roosevelt, in 1937, called for the passage of a law to "help the poorest of ‘those who toil in factory'" and cited to the high rate of illiteracy among those workers. Coupling those facts with the fact that Congress relies on "information and complaints received from employees" to enforce this anti-retaliation provision led the Supreme Court to conclude that Congress must have intended the term "filed any complaint" to encompass both oral and written complaints, and he further noted, many of the employees' which the act was designed to protect would have great trouble reducing their complaints to writing.
   

However, be aware that the opinion went on to observe that in order to provide fair notice under the FLSA:

• 
  indicated that subscribers to Who’s Who might be entitled to a full refund of their membership fees,
  
• 
  suggested members file complaints with the District Attorney and Attorney General, and
  
• 
  offered to provide information on management personnel, including “their backgrounds,” “their life styles,” and “their prior run ins with [the] IRS.”
  

• 
  In re American Express Merchants' Litigation, No. 06-1871-cv (2^nd Cir., 3/8/11); 2011 U.S. App. LEXIS 4507; http://www.ca2.uscourts.gov/decisions/isysquery/1e97f0d4-ce60-4145-9e85-3925af5613c9/1/doc/06-1871_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/1e97f0d4-ce60-4145-9e85-3925af5613c9/1/hilite/ [enhanced lexis.com version].
  
• 
  Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., No. 08-1198, ____ U.S. ____; 130 S. Ct. 1758 (2010) ; 176 L. Ed. 2d 605; 2010 U.S. LEXIS 3672; 2010-1 Trade Cas. (CCH) P76,982; 2010 AMC 913; 22 Fla. L. Weekly Fed. S 269; http://www.supremecourt.gov/opinions/09pdf/08-1198.pdf [enhanced lexis.com version].
  

Trade secrets: publicly available ingredients, secret status of source code not invalidated; pilfering, “Dynamic Expected Utility Model”, Goldman Sachs and Société Générale

It’s the recipe, not the ingredients, that is protected.

The Supreme Court case of Labor Board v. Electrical Workers, No. 15, 346 U.S. 464 (1953), involved the administrative law decision of the National Labor Relations Board v. Local Union No. 1229:

The difference for the NLRB between the two cases was that the disparaging remarks made by the employee in the recent case were made after he was fired, not before, i.e., not during his employment, as in the Jefferson Standard case. In Stephens Media, the critical issue for the NLRB was whether the employee’s post-discharge remarks could form the basis of a denial of reinstatement or could cut-off a claim for back pay. In deciding those remarks could not, the NLRB stated that, “[s]imply put, employees who are unlawfully fired . . . often say unkind things about their former employers [after the fact]”, and therefore, the NLRB ruled, employers who violate the law should not be permitted to escape a full remedy for the effects of their unlawful actions based on the fired employees’ “natural human reactions” to those adverse employment actions.

• 
  Return to work ideas: http://www.dol.gov/odep/return-to-work/
  
• 
  DoL official forms: http://www.dol.gov/whd/fmla/
  

Retaliation: “continuing violation” doctrine, timely filing, sexual harassment, hostile work environment, threats, humiliation, constructive discharge, emotional distress, jury verdict, proper instructions, verdict upheld

When deciding if a discrimination claim has been timely filed, NM courts distinguish between two types of discrimination:

1. 
   A “discrete act” would be termination, failure to promote, denial of transfer, etc., that “take[s] place at an identifiable time.”
   
2. 
   A hostile work environment claim “involve[s] repeated conduct over days or years”. Under the “continuing violation” doctrine, if a claimant files within 300 days of any instance of the alleged misconduct, then NM courts may allow evidence and consideration of all instances, even if they occurred over the course of several years.
   

Retaliation claims have differed from discrimination claims, and are a separate claim for relief.

Instead of having to prove discrimination, the claimant must prove:

1. 
   he or she engaged in a protected activity, such as complaining of discrimination,
   
2. 
   he or she suffered an adverse employment action, and
   
3. 
   there is a causal connection between the two events.
   

The constructive discharge theory of liability was reaffirmed, and the appellate court ruled that the jury had been fully and properly instructed on the applicable law, heard and weighed the evidence, and that there was substantial evidence to support its verdict of $94,653.93 for lost wages and $30,000 for emotional distress, and therefore it said it would not second guessing the decision of the jurors. Charles v. Regents of N.M. State Univ., (11/4/11); 2010-NMCA-133; 2010 N.M. App. LEXIS 133; 110 Fair Empl. Prac. Cas. (BNA) 1252; http://scholar.google.com/scholar_case?case=4510195608191118953&hl=en&as_sdt=2&as_vis=1&oi=scholarr [enhanced lexis.com version].