Human resources & employment law cumulative case briefs
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Controlling law – sort of . . . . Having retired and deactivated my license to practice law, I can notify you about this United States Supreme Court opinion but not conjecture on it for you, so check with your benefits legal counsel on what it might imply. The hanging question is whether the final determination about benefits is to be made in the court system or by the benefits plan administrator. It’s a complex case replete with citations to cases in the history of the development of the benefits law leading up to this opinion. As usual, I have provided you with citations to legal reporting sites and to the URL for a PDF copy. Conkright v. Frommert, No. 08-810, ____ U.S. (Apr. 21, 2010); 130 S. Ct. 1640; 176 L. Ed. 2d 469; 2010 U.S. LEXIS 3479; 48 Employee Benefits Cas. (BNA) 2569; 22 Fla. L. Weekly Fed. S 232; http://www.supremecourt.gov/opinions/09pdf/08-810.pdf [enhanced lexis.com version]. FMLA: DOL expands family leave for same-sex parents and others Article from The Employment Law Post ©, 6/25/10, Read the article for all of the details and comment, but in very brief summary: Determining whether an employee stands in loco parentis to a child requires a consideration of multiple factors, including:
http://employmentlawpost.com/hrnews/2010/06/23/dol-expands-family-leave-for-same-sex-parents/?HLA. Unions: violating collective bargaining agreement (CBA), international union inducing violation, no liability; courts, not arbitrator to determine existence of arbitration clause Controlling law. From time to time there may be a dispute between a local union and its international organization about whether to ratify a proposed labor contract and whether the local should comply with the terms of it, and the United States Supreme Court held that the courts decide. Another issue dealt with in this case was who determines whether an arbitration clause was in fact agreed to by the parties, and the Court held that the courts decide. Granite Rock Company v. International Brotherhood of Teamsters, No. 08-1214, ____ U.S. ____, (Jun, 25, 2010); 2010 U.S. LEXIS 5255; http://www.supremecourt.gov/opinions/09pdf/08-1214.pdf [enhanced lexis.com version]. ADA: new perspective, position held by temporary employee is not “vacant” for purposes of reassignment as a reasonable accommodation under the ADA. Controlling law. This is a case of “first impression”, i.e., it is a new issue not previously decided: whether a position or positions filled by a temporary contract workers or workers are "vacant" for purposes of reassignment as a reasonable accommodation under the ADA. Our Tenth Circuit Court of Appeals ruled that such a position is not vacant because no employee, disabled or not, could be assigned to it - that temporary employee holds the position pursuant to the terms of a contract and cannot be bumped out. Read the case for a good review of this area of the state of the ADA employment law. Also, discussing it with your employment law attorney would be a good idea to make sure you have adequately dealt with the entire situation. Duvall v. Georgia-Pacific Consumer Products, L.P., No. 08-7096 (10th Cir., 6/9/10); 2010 U.S. App. LEXIS 11791; http://www.ca10.uscourts.gov/opinions/08/08-7096.pdf [enhanced lexis.com version]. ADA; FMLA: Employee must provide enough information of a possibly qualifying condition; necessity of adequate training for all employees, staff, supervisors, managers, executives; employee rejected FMLA leave Illustrative; not controlling law. The employee failed to provide sufficient information to alert his supervisors of a condition that might possibly qualify him for FMLA leave. He was discharged for excessive absenteeism. Read the case for details before relying on this, and discuss it with competent, experienced employment legal counsel. Briefly, the employee complained he was stressed and anxious, but did not mention his depression. His claim for failure to accommodate his condition was rejected by the trial court and the appellate court. Proving an ADA discrimination claim requires that the employee must inform the employer that an accommodation is needed, which this employee did not do. Adequate training of the supervisor resulted in the supervisor diligently pursuing inquiry to try to determine if the employee qualified for FMLA leave. Kobus v. The College of St. Scholastica, Inc., No. 09-1583 (8th Cir., 6/21/10); 2010 U.S. App. LEXIS 12601; http://www.ca8.uscourts.gov/opns/opFrame.html [enhanced lexis.com version]. Privacy: employer-provided communication devices, reasonable expectation of privacy, employers written "Computer Usage, Internet and E-Mail Policy" that specified that employees had no expectation of privacy or confidentiality when using computers, e-mail, or the Internet, searching personal text messages, monitoring text message overages, oral statements affecting policies, practices and procedures Controlling law. This is an important case announcing a unanimous decision, but the court limited its application because eight of the justices conclude that the judiciary "risk[ed] error" by defining the constitutional protections of privacy in electronic communications before the role of technology in our society has become clear. The Court further noted that, "[r]apid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. . . At present, it is uncertain how workplace norms, and the law's treatment of them, will evolve." The major point here is that employers need to review and update policies, practices, procedures and training for all electronic communication devices because this area of business communications is and will continue to rapidly evolve. City of Ontario v. Quon et al., No. 08-1332, ____ U.S. ____ (June 17, 2010); 2010 U.S. LEXIS 4972; http://www.supremecourt.gov/opinions/09pdf/08-1332.pdf [enhanced lexis.com version]. [Note: double-check this opinion for any possible revisions in the text after publication on 6/17/10.] Though this case involves law in the public sector, the opinion notes it has implications in the private sector as well. The concern of California’s Ontario Police Department (OPD) as a business management matter of the cost of text messages, and the Court recognized that valid business purpose. It had the following important factors in place:
However, Officer Quon consistently exceeded the character limit, and the Chief decided that Quon and another such officer would be audited. The auditing procedure should be noted:
Based on this, Quon was investigated by Internal Affairs, and disciplined. Quon file suit for violation of his privacy and Fourth Amendment rights as a public sector employee under the Unites States Constitution for unlawful search and seizure. As we know, public sector employees have Fourth Amendments rights. Previous Supreme Court decisions set forth a two-step process to analyze whether such a search was unconstitutional:
Declining to determine whether Quon had a reasonable expectation of privacy [Note: thus avoiding the conversation about paying for the overages and avoiding being monitored], the Court moved on to determine that the employer had a “legitimate, work-related rationale”, and thus was proper under the part two of test outlined above. It concluded that the city had a legitimate interest in ensuring that employees were not paying overages fees for work-related messages and that the city was not paying for excessive personal communications by its employees. [Note: All of this has important implications for both public and private sector employees, and employers ought to seriously consider studying this opinion carefully and then conduct a thorough audit with human resources staff and competent, experienced employment law counsel.] National Labor Relations Act: quorum required Controlling law. For about 27 months the National Relations board has been issuing opinions based on only two members meeting (because presidential appointments have been blocked in congress). During the period of January 1, 2008 and March 27, 2010, the Board had only two sitting members, and it decided about 600 cases, all of which have been invalidated by this opinion. New Process Steel, L.P. v. NLRB, No. 08-1457, ____ U.S. ____, (6/17/10); 2010 U.S. LEXIS 4973: http://www.supremecourt.gov/opinions/09pdf/08-1457.pdf [enhanced lexis.com version]. Title VII; Equal Pay: inability to show she performed substantially similar work Controlling law. As with cases decided heavily on factual issues, reading the details of this case is essential. The employer sought a person with higher levels of experience, more experience, and a broader set of talents and skills, and it had to negotiate his salary and bonuses. The female employer who was ultimately replaced failed to show the appellate court that the employer’s stated reasons for its decisions were pretext to cover up discrimination. Hard facts are required of a claimant, and this one failed to go beyond her own opinions about her qualifications to show an overwhelming disparity of treatment. Whether this was a failure of actual proof or a failure of adequate presentation at trial is unclear. Lewis v. D.R. Horton, Inc., Nos. 09-2032 & 09-2137 (10th Cir., 3/24/10); 2010 U.S. App LEXIS 6094; and read the opinion at: http://www.ca10.uscourts.gov/opinions/09/09-2032.pdf [enhanced lexis.com version]. [Note: Some prevention measures to consider in advance of making a major change of this nature:
Arbitration: is the agreement “unconscionable? Controlling law. When a litigant raise the issue of mandatory arbitration, typically the consideration for the judge is whether enforcing the arbitration agreement would be “unconscionable”, i.e., the party opposing arbitration challenges the fairness of the agreement. Check Rent-A-Center West, Inc. v. Jackson, No. 09-497, ____ U.S. ____ (U.S.S.C., 6/21/10); 2010 U.S. LEXIS 4981; http://www.supremecourt.gov/opinions/09pdf/09-497.pdf [enhanced lexis.com version]. Arbitration: time within which to raise the defense of an arbitration agreement Controlling law. Federal courts favor enforcement of arbitration agreements. Here are the factors typically used by courts in deciding if the defense of a controlling arbitration agreement has been timely asserted in order for the trial court to dismiss the matter and refer it back for arbitration:
Hill v. Ricoh Ams. Corp., No. 09-3182 (10th Cir., 4/19/10); 2010 U.S. App. LEXIS 7979; http://www.ca10.uscourts.gov/opinions/09/09-3182.pdf [enhanced lexis.com version]. Title VIII; Retaliation: employee’s failure to comply with Faragher/Ellerth reporting requirements; “cat’s paw” doctrine inapplicable Controlling law. The appellate court found that the employer had complied with Faragher-Ellerth anti-discrimination training requirements and the employee had not, and thus his discrimination claim was barred. His retaliation claim failed because the decision to terminate him was made independently of input from others in the company, i.e., he did not establish that the person(s) who terminated him had been influenced by others.* The employee had numerous performance deficiencies , he attempted to circumvent the normal chain of command, and his complaints his supervisors were unsubstantiated Shabestari v. Utah Non-Profit Housing, No. 09-4105 (10th Cir., 5/10/10); 2010 U.S. App. LEXIS 9502; http://www.ca10.uscourts.gov/opinions/09/09-4105.pdf [enhanced lexis.com version]. [*Note: Essentially, a person getting someone else to unwittingly do something for that person, e.g., from Wikipedia: Jean La Fontaine was a 17th century French poet who penned a fable involving a monkey and a cat "in which a monkey convinces an unwitting cat to pull chestnuts from a hot fire. As the cat scoops the chestnuts from the fire one by one burning his paw in the process, the monkey eagerly gobbles them up, leaving none for the cat." Included because “cat’s paw” has become an established name for that legal theory.] NM 2010 Legislative Session laws to be aware of Be aware of these laws passed in the 2010 NM session and read the PDF files for the actual wording:
Title VII: age and gender discrimination allegation; indirect discrimination proof, three-step proof, “employer’s legitimate business expectations”, no pretext – insubordination as valid business purpose reason Illustrative; not controlling law. An employee fired for insubordination alleged age and gender discrimination made it through the first step, but failed on the second step and summary judgment in favor of the employer was upheld. The key point is that she was not meeting the employer’s legitimate business expectations, and an important factor in success adequate, objective documentation of the employee actions and statements on which the employer’s adverse employment decision was based. Everroad v. Scott Truck Sys., Inc., No. 08-3311 (7th Cir., 5/10/10); 2010 U.S. App. LEXIS 9484; 109 Fair Empl. Prac. Cas. (BNA) 353; http://www.ca7.uscourts.gov/tmp/Y610FZ61.pdf [enhanced lexis.com version]. ADA: job descriptions, “essential functions”, reasonable accommodation, size of the operation, temporary accommodation. Illustrative; not controlling law. An assistant manager who injured herself while grilling and scooping ice cream took FMLA leave. When that leave expired her employment was terminated because she was unable to perform certain functions of her job. The restaurant was found to be too small an operation to reasonably accommodate Richardson’s condition after her injury. This case might have been decided differently if the size of the business had been larger Friendly Ice Cream Corporation, No. 08-2423, 594 F.3d 69 (1st Cir., 2/5/10); 2010 U.S. App. LEXIS 2495; 22 Am. Disabilities Cas. (BNA) 1473; 14 Accom. Disabilities Dec. (CCH) P14-052 [enhanced lexis.com version]. Katharine Richardson’s six-page job description as assistant manager stated that position required being primarily responsible for: 1) assisting the General Manager with administrative and operational shift duties; 2) providing guidance and direction to restaurant personnel; 3) overseeing, directing and assisting in the kitchen, dining and take-out operations; 4) facilitating production and customer service; and 5) ensuring that safety regulations and quality standards were maintained and that customer satisfaction was achieved. The appellate court affirmed the summary judgment in favor of the employer, reasoning that: . . . "[f]unctions that might not be considered essential if there were a larger staff may become essential because the staff size is small compared to the volume of work that has to be done." The 1st Circuit explained that, "[i]f an employer has a relatively small number of available employees for the volume of work to be performed, it may be necessary that each employee perform a multitude of different functions. Therefore, the performance of those functions by each employee becomes more critical and the options for organizing the work become more limited." Title VII: presently no deadline for filing claim, though ultimately the lower court will determine and state when the date for when filing period begins; remanded to 7th Cir. for further action Controlling law. As of this time in the legal proceedings, no “clock” or “calendar” applies to this disparate impact case to bar the claims of African-American firefighters against the Fire Department of the City of Chicago, the Lewis case. But, you ask, why was there a time deadline issue in the recent Ledbetter case? The difference seems to be that the Lewis case involved indirect discrimination and the Ledbetter case involved direct discrimination. Direct discrimination would then be an identifiable act at the time of commission, whereas under the Lewis reasoning indirect discrimination by disparate impact of a policy does not occur until the actual by the application of such on those employees in a protected class. Thus the Supreme Court highlighted important differences in when claims of disparate impact — as opposed to claims of disparate treatment — must be brought under Title VII. Lewis v. City of Chicago, Illinois, No. 08-974, ____ U.S ____ , May 24, 2010; 2010 U.S. LEXIS 4165; http://www.supremecourt.gov/opinions/09pdf/08-974.pdf [enhanced lexis.com version]. ERISA: attorney fees Controlling law. The U.S. Supreme Court held that a court may award attorney's fees under ERISA § 502(g)(1) to either party as long as the fee claimant "has achieved some degree of success on the merits." This replaces the former rule that fees would be awarded to the “prevailing party”. Hardt v. Reliance Standard Life Ins. Co., No. 09-448, ____ U.S. ____, May 24, 2010; 2010 U.S. LEXIS 4164. [Note: What affect this ruling may have in other employment law cases, if any, remains to be seen.] Title VII: female driver, physical ability test (PAT), inconsistent testing, relation of test to actual duties, legitimate business reason; concern over injury, relation to ADA pre-employment testing Illustrative; not controlling law. Employers have legitimate concerns about employees injuring themselves, such as the safety, health and welfare of the each worker, danger to others, interruption of delivery of goods and services to customers, and so. However, though PATs may help to reduce workplace injuries, caution is essential, so ensure that sure the test is (1) consistently applied to all employees, (2) related to the requirements of the specific job, and (3) designed to evaluate the actual shortcoming(s) in question. Merritt v. Old Dominion Freight Line, Inc., No. 09-1498, 601 F.3d 289 (4th Cir., 4/9/10); 2010 U.S. App. LEXIS 7352; 108 Fair Empl. Prac. Cas. (BNA) 1766; 93 Empl. Prac. Dec. (CCH) P43,863; http://pacer.ca4.uscourts.gov/opinion.pdf/091498.P.pdf [enhanced lexis.com version]. Old Dominion had two classes of drivers: (1) line haul and (2) pickup and delivery. Line haul drivers typically drive long distances across state lines and are away from home on nights and weekends. Pickup and delivery drivers work locally, rarely working nights and weekends. Duties of pickup and delivery drivers require picking up and handling freight, so that job requires more lifting and is physically more demanding than that of a line haul driver. Of the pickup and delivery class of 3,100, only six were female. Deborah Merritt drove line haul for six years, and over that time she developed an interest in working as a pickup and delivery driver so she could have regular hours and spend her nights and weekends at home. When she filled in as a pickup and delivery driver in May 2002, her supervisor evaluated her work as fully satisfactory. A short time after starting as a temporary pickup and delivery driver, she applied for permanent status. Twice, she was rejected and younger, less experienced male drivers were hired instead. In response to her inquiry about the reasons, the terminal manager told her that “it had been discussed and it was decided that [we] could not let a woman have that position.” Sometime later, he told her that the regional vice president was worried about hiring a female pickup and delivery driver for fear she would get hurt, and on another occasion he told her that the vice president had concerns about making her a pickup and delivery driver because he “didn’t think a girl should have that position.” However, in March 2004, Old Dominion allowed Merritt to work as a permanent pickup and delivery driver, but unlike male drivers, she was placed on a 90-day probationary period. Merritt performed her pickup and delivery duties satisfactorily until September 29, when she injured her ankle on the job, and then Old Dominion required her to take a physical ability test (PAT) to assess her ability to perform her pickup and delivery duties. Old Dominion uses the PAT primarily during the pre-employment stage to evaluate potential hires, but not as a consistent policy and practice. Note that her personal physician stated there was nothing about her medical condition that would prevent her from performing her job. However, when Merritt took the PAT she was evaluated as having failed. Though she contended that the tasks she had problems with were unrelated to her ankle injury, Old Dominion terminated her employment based on the results of the PAT, claiming she was unable to perform her job. She was replaced by a male driver. Her Title VII sexual discrimination claim based was on the employer’s belief that women are incapable of performing the duties of a pickup and delivery driver. The federal district court granted the employer’s motion for summary judgment. That judgment was reversed because the appellate court found that she had presented sufficient evidence of discriminatory conduct to warrant a trial. Though acknowledging that Old Dominion had offered legitimate reasons for deciding to terminate her employment, i.e., failing the PAT, it found that reason was insufficient to defeat her claims because (1) evidence showed that the PAT wasn’t designed to test her physical shortcomings in doing her job and (2) Old Dominion used the PAT selectively. Further, the prejudicial and biased statements by Old Dominion managers about not wanting women as pickup and delivery drivers evidenced a discriminatory corporate culture. Title VII: filing period for a New Mexico Human Resources Bureau right-to-sue letter is different from an EEOC right-to-sue notice Download 5.55 Mb. Share with your friends:
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