Human resources & employment law cumulative case briefs
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- Controlling law.
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Controlling Law. The employer EPLI policy expressly excluded liability litigation costs coverage for violations of federal and state wage laws and compensation relationships. The courts ruled that contractual term was unambiguous and upheld the insurer's denial of coverage. The employer had allegedly unlawfully required hourly employees to work "off the clock" without compensation. Payless Shoesource, Inc. v. The Travelers Cos., Inc., No. 08-3246 (10 Cir., 11/10/09): 2009 U.S. App. LEXIS 24728; http://www.ca10.uscourts.gov/opinions/08/08-3246.pdf [enhanced lexis.com version]. Retaliation: free speech, First Amendment, coincidental personnel problem, investigation, discharge, timing, motivation not discriminatory Controlling law. A physician advocating random drug and alcohol testing was held to have been discharged for reasons other than exercising his right to freedom of speech. Soon after first raising the testing issue he was investigated for interpersonal conflicts with another physician. Relevant facts for the appellate court were: - testing issue raised, - investigation opened soon thereafter on interpersonal conflicts between complaining physician and another physician, - reprimand issued to both of the physicians, - second investigation showed complaining physician been recommended for probation and psychiatric treatment because of disruptive conduct, billing fraud and mistreatment of patients , and - The court concluded that a reasonable person would not be deterred from speaking since the letter did not discuss his advocacy for random drug testing. Further, the appellate court observed that the mere temporal proximity of an employee's protected speech to the adverse employment action was insufficient, without more, to establish a retaliatory motive. Couch v. Board of Trustees of the Mem'l Hosp. of Carbon County, No. 08-8001 (11/17/09) ; 2009 U.S. App. LEXIS 25182; http://www.ca10.uscourts.gov/opinions/08/08-8001.pdf [enhanced lexis.com version]. ADA, Rehabilitation Act: Independent contractors are covered by the 1973 Rehabilitation Act, reasonable accommodation
ADEA: discrimination, evidence, pattern or practice, Title VII legal theory used Controlling law. Fortunately, in this area of practice with dozens of laws prohibiting discrimination, the courts have a strong, continuing tendency to fashion a consistent, coherent system of interpretation. In this case our 10th Circuit Court of Appeals used the Title VII law of "pattern or practice" to allow evidence of discrimination in an age discrimination case. Thompson v. Weyerhaeuser Co., No. 07-7090, 582 F.3d 1125 (10th Cir., 8/26/09); 2009 U.S.App. LEXIS 20767; 107 Fair Empl. Prac. Cas. (BNA); http://www.ca10.uscourts.gov/opinions/07/07-7090.pdf [enhanced lexis.com version]. Weyerhaeuser terminated 17 employees over the age of 40 in a reduction in force (RIF). In a pretrial motion, the plaintiffs requested the court to allow them use the "pattern or practice" theory to demonstrate discrimination prohibited by the ADEA. Weyerhaeuser objected on the ground that the theory was limited to Title VII, where it is expressly stated [and is not in the ADEA]. However, the 10th Circuit Court of Appeals noted that the development of the "patterns or practices" has been adopted by a number of courts in cases other than ADEA violations. employer-employee relationship, final appellate decision pending Controlling law at some time in the future. This NM Court of Appeals case may be reviewed by the NM Supreme Court, so we need to follow its status over the next several months to determine what the final decision will be. Keith v. Manorcare, 2009-NMCA-119, Certiorari Granted, No. 31,958, October 8, 2009; http://www.nmcompcomm.us/nmcases/NMCA/2009/09ca-119.pdf [enhanced lexis.com version]. FMLA: excessive absenteeism before leave, other performance deficiencies, adequate documentation, summary judgment in favor of employer Illustrative; not controlling law. The employee's performance deficiencies had been noted, discussed with her, and adequately documented, before her medial epicondylitis ["tennis elbow"] problems and request for intermittent leave for that problem and ovarian cyst problem. The appellate court noted the following factors it considered: - Long had not applied for FMLA leave before the documented disciplinary meeting with Branham, her manager, on September 20, - Branham already had documented the fact that her absences were negatively affecting the performance of her group before her request for leave, and - any comments made by Branham regarding her absences before her FMLA leave absences could not be used as evidence of FMLA retaliation by Branham. - Also, Larkin, HR manager, conducted an independent investigation in which she reviewed not only Branham's comments, but information from others as well, and - the decision to fire Long ultimately was made by Bauman, Executive Director, who relied on multiple sources of information, and was unaware of her FMLA leave. Long v. Teachers' Retirement System of Illinois, No. 08-3094 (7th Cir., 10/23/09); 2009 U.S. App. LEXIS 23427; 15 Wage & Hour Cas. 2d (BNA) 705; http://www.ca7.uscourts.gov/tmp/SP0P6GBM.pdf [enhanced lexis.com version]. Covenant not to compete FYI. This is A 10th Circuit case based on Oklahoma law, so applicability is limited unless a case in our jurisdiction arises and one of our courts might find the reasoning persuasive as a basis for controlling law. Southwest Stainless, LP v. Sappington, 08-5127, 582 F.3d 1176 (10th Cir., 9/21/09); 2009 U.S. App. LEXIS 20915); 158 Lab. Cas. (CCH) P60,870;29 I.E.R. Cas. (BNA) 1287; http://www.ca10.uscourts.gov/opinions/08/08-5127.pdf [enhanced lexis.com version]. Immigration: sentence for employing undocumented workers, 10 years Illustrative: not controlling law - but this case does catch a human resource person's attention. A company official was sentenced by the federal trial judge to 10 years for employing undocumented workers who were paid in cash [no withholding for federal income tax, Medicare or Social Security]. He pleaded guilty to conspiracy to defraud the federal government, which amounted to about $16M, and to harboring 100 undocumented alien workers. Also, he attempted to send his assets outside of the USA and leave the country. The statutory penalty is 120 months, and the 6th Circuit Court of Appeals affirmed the imposition of that maximum amount of time by the trial judge, who considered mitigating factors of the federal sentencing guidelines: the defendant's age, criminal history, health, family ties and health of son and cooperation with the federal government. United States v. Rosenbaum, 08-1339 (6th Cir., 11/3/09); 2009 U.S. App. LEXIS 24106; 2009 FED App. 0380P (6th Cir.); http://www.ca6.uscourts.gov/opinions.pdf/09a0380p-06.pdf [enhan ced lexis.com version]. FLSA: hospital's pay plan for nurses with different rates for different length shifts, collective bargaining agreement with pay rate differential, previous US Supreme Court case precedent Illustrative; not controlling law [Note: However, reasoning was based on a prior United States Supreme Court case]. A California health care employer was allowed to set different pay rates for different length shifts in order to maintain revenue neutrality because it otherwise complied with the minimum wage and overtime requirements of the FLSA and other applicable law. It paid employees on a 12-hour shift a lower base salary than those working on an 8-hour shift, which was a negotiated term of its 2003 collective bargaining agreement (CBA). Wages did not go below the minimum wage. The United States Supreme Court case of Walling v. A. H. Belo Corp., 316 U.S. 624, 628-30 (1942) [enhanced lexis.com version], stated, "[N]othing in the [FLSA] bars an employer from contracting with his employees to pay them the same wages that they received previously, so long as the new rate equals or exceeds the minimum required by the [FLSA]." The plaintiff produced no evidence that the regular rates memorialized in the CBA were artificially low, or Pomona set pay rates in a manner that would relieve it of overtime obligations. Further, the plaintiff and other nurses were paid overtime under the hospital's pay plan using an authorized method of calculating the regular rate known as the "weighted average method," set forth in federal overtime regulations (29 C.F.R. § 778.115 [annotated lexis.com version]) and the CBA. Plaintiff's claim was rejected because she produced no evidence showing that the pay plan violated the FLSA. Parth v. Pomona Valley Med. Ctr., No. 08-55022 (9th Cir., 10/22/09); 2009 U.S. App. LEXIS 23329; http://www.ca9.uscourts.gov/datastore/opinions/2009/10/21/08-55022.pdf [enhanced lexis.com version]. ADEA: policy violation, discharge; age comment not proximately connected Illustrative; not controlling law. A 57 year old worker was fired for using the employer's computer system to access pornographic material and was replaced by a 43 year old worker. The company had a strict written policy that its computer system was to be used exclusively for business purposes and that "indecent, profane, obscene, intimidating, or unlawful material may not be sent or downloaded by any form of electronic means or displayed on or stored in the Company's computers or printed." Further, "System Users are responsible for all transactions made using their passwords," and that violations of the policy may result in disciplinary action up to and including termination. That was found to be the basis for his termination. He had also alleged that a comment made several years earlier by a member of "top management" was too remote in time to be considered n the age discrimination claim. Cervantez v. KMGP Services Company Inc., No. 08-11196, (5th Cir., 9/16/09); 2009 U.S. App. LEXIS 20702; 107 Fair Empl. Prac. Cas. (BNA) 369; http://www.ca5.uscourts.gov/opinions%5Cunpub%5C08/08-11196.0.wpd.pdf [enhanced lexis.com version]. ADA, Rehabilitation Act: protected activity, complaints, retaliation Illustrative; not controlling law. A special education Resource Specialist Program teacher with the Riverside County Office of Education in California began in 2003 to express her concerns that special education services were not complying with state and federal laws. Ultimately she and a coworker filed a lawsuit against the school district based on those concerns. She had resigned in August 2006 and alleged it was because she was being excluded from meetings, that her caseload was reduced, and that she was refused certain work, all because of her support of the students and complaints on their behalf. Retaliation id prohibited by both the ADA and the Rehabilitation Act, § 504, prohibit retaliation. The district contended that she could not bring a retaliation claim because she was not a "qualified individual with a disability" and that she had no "close relationship" to the disabled students. The appellate court found that both acts had broad anti-retaliation prohibitions against retaliation against "any individual" who is harmed after attempting to protect the rights of the disabled. Further, though Title I of the Rehabilitation Act covers employment relationships, Title II services and other conditions for the disabled. Barker v. Riverside County Office of Education, No. No. 07-56313 (9th Cir., 11/23/09); 2009 U.S. App. LEXIS 23343; http://www.ca9.uscourts.gov/datastore/opinions/2009/10/22/07-56313.pdf [enhanced lexis.com version]. ADA: continuing responsibility to accommodate Illustrative, not controlling law [Editorializing is not something I want to engage in, but this California opinion seems heavily weighted in favor of the employee. Read it as a cautionary note that there may be a continuing need to make sure that accommodations are being provided, such as making sure that new or newly assigned supervisors and managers are aware of ADA accommodation. Many federal cases require that both employers and employees have a responsibility to engage in an interactive accommodation process, and if an employer is required to provide a continuing accommodation, then an accommodated employee probably ought to have a continuing responsibility of interactive participation. Further, there are many cases declaring that employees need to speak up to protect themselves, or they will lose their rights.] A.M. v. Albertsons LLC, No. A122307, 178 Cal. App. 4th 455 (Court of Appeal of the State of California, First Appellate District, Division Four 9/18/09); 2009 Cal. App. LEXIS 1675; Internet: http://www.courtinfo.ca.gov/opinions/documents/A122307.PDF [enhanced lexis.com version]. PERA: NM Public Employees Retirement Association, disability benefits, qualification for benefits, two statutes, which statutory applies - NMSA 1978 §§ 10-11-10.1(C)(2)(a) and 10-11-10.1(C)(1)(1a) Controlling law. Two statutory sections apply to disability benefits for public employees, but neither of them covered the peculiar situations of a juvenile corrections officer and a fireman. This is a complicated case that applies to unusual circumstances, so the best thing for any human resources and employment law practitioner dealing with those laws is to read the full opinion. Of interest is the perspective the opinion's analysis that favors continued employment of the disabled rather than maneuvering for disability benefits. Gonzales v. State Of New Mexico Public Employees Retirement Association, 2009-NMCA-109, Certiorari Not Applied For; Internet: http://www.nmcompcomm.us/nmcases/NMCA/2009/09ca-109.pdf [enhanced lexis.com version]. [Note: This is a final decision because neither party petitioned the N.M. Supreme Court to review it.] ADA: reasonable accommodations, interactive process, disabled employees must provide corroborating evidence of non-obvious, medically necessary accommodations Illustrative; not controlling law: Employers need to be alert and aware of when an accommodation may have been requested in order to promptly begin the interactive process with the employee of what may be needed, assess the potential costs, possible alternatives and reasonableness. In this case an employee with seasonal affective disorder (SAD), a form of depression, needed a classroom that provided sunlight necessary to alleviate SAD. Though the school had two such classrooms available, it failed to provide them despite that being a reasonable accommodation that carried no cost. Instead, they merely addressed other work issues the teacher had also raised. Ekstrand v. Sch. Dist of Somerset, No. 09-1853 (7th Cir., 10/6/09); 2009 U.S. App. LEXIS 21912; Internet: http://www.ca7.uscourts.gov/tmp/S30JVJVX.pdf [enhanced lexis.com version]. FMLA: disabled employees must provide corroborating evidence of non-obvious, medically necessary accommodations; demotion for unexcused absences, mandatory limit of four Illustrative of a potential problem; not controlling law. In complicated situations such as this, managers and supervisors ought to contact their human resources experts as soon as possible and let them handle it, and perhaps human resources staff may need to seek advice immediately from an experienced, competent employment law attorney. Another option is to not make snap judgments and inquire further for more information, but being careful to avoid an ADA claim of regarding an employee as being disabled (e.g., a "regarded" claim arising from saying it sounds as if employee is an alcoholic). Also, as you probably know, absences for use of alcohol are not protected under the FMLA, but absences for treatment are. It isn't necessary for an employee to mention the FMLA by name, but amended regulation 29 CFR 825.303(b) requires that an employee requesting FMLA leave must specifically state either (1) the reason why the employees would qualify for FMLA leave (e.g., depression, epilepsy, pregnancy, heart attack, etc.) or (2) that the employee specifically is requesting FMLA leave in order to alert the employer of an FMLA situation as distinguished from other leave matters. Of course, it is essential for employers to train their employees about that notice requirement. Scobey v. Nucor Steel-Arkansas, No. 08-1192, 580 F.3d 781 (8th Cir., 9/25/09); 2009 U.S. App. LEXIS 19094; 158 Lab. Cas. (CCH) P35,625; 92 Empl. Prac. Dec. (CCH) P43,655; 15 Wage & Hour Cas. 2d (BNA) 340; Internet: http://www.ca8.uscourts.gov/opndir/09/08/081192P.pdf [enhanced lexis.com version]. [*Note: Regulation: http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.303.htm.] Talmadge Scobey worked as a "ladle man" in a steel mill. It is a demanding rotating position, but at the time it paid $80-90K per year. Nucor's attendance policy allowed termination after four unexcused absences. Scobey missed four consecutive days and had not called in. His excuse was alcoholism and depression set off by the death of his ex-wife's father, and he had no recall of that four day period. He requested his employer provide him assistance. Nucor referred him an in-patient treatment facility and then an out patient facility. Because of his unexcused absences he was demoted to a lesser position on night shift at about 50-60% of his former compensation. Scobey claimed violations of the FMLA on the grounds that Nucor should have known he was claiming FMLA leave and rights and that the demotion was an attempt by the company to fore him to quit. He had told his supervisor and said he was suffering from a nervous breakdown. He sounded intoxicated and the supervisor believed he was making excuses to avoid work. The appellate court appellate majority opinion noted Scobey's affirmative duty to give proper notice of his need for FMLA leave [Note: The requirements stated above at the beginning of this brief]. The dissenting opinion pointed out that the statement about depression [Note: mentioning a serious medical condition by name] ought to have been considered sufficient to put the employer on notice of need for FMLA leave - and some Nucor employees had expressed concern over Scobey's mental condition. ERISA: a covered plan may consist of individual policies rather than group insurance policies Illustrative; not controlling law. Alexander v. Provident Life and Accident Insurance Co., No. 1:09-CV-27 (E.D. Tenn. Oct. 16, 2009) [enhanced lexis.com version]. Dr. Alexander was covered by a disability policy provided to him by purchase of an individual disability income policy with premiums paid by his medical group. 29 U.S.C. § 1002(1) defines an employee welfare benefit plan or program as (1) established or maintained by either an employer or employee organization, (2) to provide benefits enumerated by statute, and (3) to participating employees or their beneficiaries as held in Donovan v. Dillingham, 688 F.2d 1367, 1371 (11th Cir., 1982) [enhanced lexis.com version], and in numerous other decisions cited in this case: Stern v. Provident Life and Accident Ins. Co., 295 F. Supp. 2d 1321, 1326 (M.D.2003) (employer established a plan by paying premiums for individual disability policies) [enhanced lexis.com version]; Jaffe v. Provident Life and Accident Ins. Co., 2000 U.S. Dist. LEXIS 4689 (S.D.Mar. 21, 2000) [enhanced lexis.com version] (same where the employer entered into a "salary allotment agreement" pursuant to which it paid premiums for coverage under individual disability insurance policies to the owners of an ophthalmology practice and to at least one non-owner employee for eight years, even though the employees later reimbursed the association for the premiums paid); Massachusetts Cas. Ins. Co. v. Reynolds, 113 F.3d 1450, 1453 (6th Cir. 1997) [enhanced lexis.com version] (employer established a plan through the purchase of individual disability policies for employees); Madonia v. Blue Cross & Blue Shield of Virginia, 11 F.3d 444, 447 (4th Cir. 1993) [enhanced lexis.com version] ("employers may easily establish ERISA plans by purchasing insurance for their employees"); 26 C.F.R. § 1.105-1(d) [annotated lexis.com version] (employee benefit plans may be funded by one or more individual insurance policies). DOT: drivers, medical marijuana, state licensing of use Department of Transportation guidelines issued 10/19/09 to federal prosecutors. Although a state might license regulated medical use of marijuana, that does not protect a transportation employee from an adverse employment action if testing positive for use of that substance. The DOT regulates truck and bus drivers, railroad employees, airline employees, transit system workers, and pipeline and hazardous material workers, and certain workers on navigable waters. http://www.justice.gov/opa/documents/medical-marijuana.pdf. As of the date of that memorandum those states are Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington. NLRA, Unions: collective bargaining agreement (CBA), successor liability (one business acquired by another business) Two illustrative cases: What is a "perfectly clear" successor? It is an employer that has led the employees of the predecessor company to believe that there would be no change in their employment status if they accepted employment with the successor employer. In such an instance the successor employer cannot unilaterally impose the initial terms and conditions of employment, but rather must either (1) continue the predecessor's terms and conditions until a new agreement with the union is achieved or (2) if negotiations reach an impasse, then successor employer is privileged to unilaterally implement new terms. Two different results were reached in these cases because the facts were different, so seriously consider working with a competent and experienced labor law attorney: - S & F Market St. Healthcare LLC, d/b/a Windsor Convalescent Ctr. of Long Beach v. NLRB, 570 F.3d 354 (D. C. Cir. 2009) [enhanced lexis.com version]. A nursing home was purchased and the successor employer announced that employees should anticipate that it "intends to implement significant operational changes," and that any offer of employment would be contingent on passing a physical examination, a drug test, and a background check. Additionally, the actual offers of employment expressly stated that they were for temporary employment, without benefits, and that the employment would be at will. The NLRB ruled against the successor employer, but the appellate court overturned that ruling because "no employee could have failed to understand that significant changes were afoot," and that by announcing that any employment with S & F would be at will, "S & F was announcing a very significant change in the terms and conditions of employment." 570 F. 3d at 360. Further, the Board's focus on "core" terms of employment "misstates the rule, which is that the successor employer must simply convey its intention to set its own terms and conditions rather than adopt those of the previous employer." Id at 561. - Local 34 S, UFCW v. Meridian Mgmt. Corp., (2d Cir. 2009) [enhanced lexis.com version]. In this case the court ignored the "perfectly clear" reasoning and held that the successor employer had to arbitrate with the union on the issue of determining the extent to which the successor was bound by the CBA. The union had sued under the NLRA and ERISA because there were existing union health and welfare fund benefits under the CBA of the predecessor employer. Sarbanes-Oxley, SOX: whistleblower protection Illustrative; not controlling law. Under what circumstance does SOX whistleblower protection apply? In order to qualify as a protected activity under the SOX the communications in question must "definitively and specifically" relate to one of the listed categories of fraud or securities violations listed in the Act. The appellate court found that the plaintiffs' statements to their superiors regarding the nondisclosure of certain information prior to the company merger met this requirement. Also, it noted that the plaintiffs were not required to "cite a code section" they believed was violated to trigger the protection of the Act. Next, the plaintiffs' subjective belief that the conduct they report violated SOX was objectively reasonable - "Requiring an employee to essentially prove the existence of fraud before suggesting the need for an investigation would hardly be consistent with Congress's goal of encouraging disclosure." Finally, the close timing of the reporting and the discharge of the employees yet another factor for a jury to consider. Summary judgment in favor of the employer was reversed. Van Asdale v. International Game Technology, No. 07-16597, 577 F.3d 989 (9th Cir., 8/13/09); 2009 U.S. App. LEXIS 18037; 92 Empl. Prac. Dec. (CCH) P43,644; Fed. Sec. L. Rep. (CCH) P95,314; Internet: http://www.ca9.uscourts.gov/datastore/opinions/2009/08/13/07-16597.pdf [enhanced lexis.com version]. Computer Fraud and Abuse Act, CFAA: discharged employee, emailing documents to home before discharge, access without authorization Illustrative; not controlling law. Timing was critical in this case. The employee was still employed and authorized to access names of treatment facilities and names of current and past patients of his employer at the time he transferred that information to his home computer. The CFAA only covers certain situations, such as unauthorized access. Whether the employer ought to have used another legal theory or have obtained an express agreement during employment prohibiting such potentially disloyal activity is another matter. LVRC Holdings v. Brekka, No. 07-17116, 581 F.3d 1127 (9th Cir., 9/15/09); 2009 U.S. App. LEXIS 20439; 29 I.E.R. Cas. (BNA) 1153; Internet: http://www.ca9.uscourts.gov/datastore/opinions/2009/09/15/07-17116.pdf [enhanced lexis.com version]. ADA: essential functions, typical, exceptional, employer's judgment. Download 5.55 Mb. Share with your friends:
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