Human resources & employment law cumulative case briefs

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   provide the employee with actual notice of the amount due;
   
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   explain how it computed the amount due;
   
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   give the employee a reasonable deadline for payment; and
   
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   explain that failure to pay will result in discharge.
   

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  Duties to preserve arise when a party ought to reasonably anticipate litigation (“knew or should have known”) – start before litigation begins because by then it may be too late.
  
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  There is a duty for an employer to issue an adequate “hold order”, i.e.,
  
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    properly save,
    
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    do not destroy, and
    
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    flag such material to be removed from periodic destruction, overwriting, etc.
    
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  Collect any such evidence and retain in a safe place.
  
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  This extends to all sorts of devices, company or personal, such as computers, PDAs, cell phones, voice mail, and so on.
  
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  Do not delegate to an employee who:
  
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    has had no experience conducting such searches;
    
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    hasn’t been trained or instructed on how to do so;
    
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    has no supervision during such collection duties; and
    
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    has no contact with and supervision by counsel during the search.
    
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  Do not delegate to potentially involved employees the duty to conduct their own searches for relevant information with little or no proper supervision.
  
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  Don’t overlook the possibility of relevant information outside the company or agencies, such as contractors.
  

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  Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager if the police department has an official no-privacy policy but a lieutenant without authority to make policy announced an informal policy of allowing some personal use of the pagers.
  

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  Whether the Ninth Circuit contravened Fourth Amendment precedents and created a conflict of authority in the circuit court by analyzing whether the police department could have used "less intrusive methods" of reviewing text messages transmitted by a SWAT team member on his SWAT pager.
  

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  Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the government employer of the recipient.
  

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  Does an employee have a reasonable expectation of privacy in text messages transmitted on devices issued by its employer?
  
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  If so, how might that change if the employer has a formal policy prohibiting personal use of the devices?
  
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  Would those same privacy rules apply to third parties, i.e., someone who is not an employee who might call, page, text or otherwise contact the employee on a device issued by the employer?
  
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  What practices of the employer might as a practical matter defeat that written policy? [As you will recall, if an employer is not adhering to or is not enforcing its written policies, then typically a court will rule that the employer’s actual practice has become the policy and the written policy is rendered meaningless.]
  
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  When might a warrant be necessary?
  
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  How far would an employer be allowed to review such communications once it becomes apparent or should be apparent that the communication is personal, i.e., what could be the extent of the intrusion?
  

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  daily exposure to office talk and radio programming that was particularly offensive to women,
  
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  she worked as a sales representative in a workstation pod cubicle near other sales representatives who were all men,
  
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  only female working in her area,
  
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  male coworkers and her direct supervisor used sexually derogatory and sexually explicit, crude language and listened to a morning radio program featuring sexually explicit and offensive language played on the stereo in the office, and
  
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  she testified that the offensive office talk and radio programming continued even after numerous complaints to her coworkers and her supervisor.
  

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  he failed to file his claim within the required time for either a federal or state claim for overtime, and
  
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  he had no evidence to support a claim that would be allowed under a longer period of time for filing allowed under any other applicable statute of limitations.
  

FMLA, constructive discharge: adverse employment action, lateral transfer; isolated remarks, insufficient evidence

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  The USD principal said to him he was having a run of bad luck with his health and hoped that wouldn’t continue.
  
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  The USD HR director told him:
  

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  he was “too old” and “getting on in age”, and suggested he ought to retire because he was “missing too much work, having too many medical problems, and costing the school district money, and
  
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  he would transfer him to a district service center if he didn’t take early retirement.
  
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  After that the principal told him he ought to retire, but Lara said he wasn’t interested in doing that. Lara testified in his deposition that the principal shook his head, but did not lose his temper; at trial Lara testified that the principal had lost his temper.
  

Required proof: According to the Tenth Circuit Court of Appeals, is was essential that Lara establish a prima facie case, in this instance, that he would be entitled to judgment in his favor if the employer could not prove a legitimate nondiscriminatory reason for an adverse employment action against him. The court rejected his claims for these reasons:

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  He failed to preset sufficient evidence of constructive discharge:
  

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  supervisors made only “isolated remarks . . . none of which were threatening or harassing”, and
  
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  those were not enough in and of themselves to prove that a reasonable person would find them so intolerable and to leave the employee no other choice that to quit or retire.
  

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  Concerning the prospect of transfer if he did not retire, the appellate court found that “Without significant adverse changes in working conditions . . . the lateral transfer is not an adverse employment action”.
  

NLRB: union activity, overly-broad restrictions, bulletin board policy, distributing flyers, alleged neutral policy, motivation, lack of legitimate business justification, suspicious timing; shift leaders were not statutory supervisors