Jurisdiction: 1st Circuit

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  the investing fund was more than a mere passive investor and
  
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  was engaged in a trade or business.
  

Summary by the appellate court:

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  employment: selling financial products, failed to meet minimum production requirements, resignation
  
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  theories: oral representations, promissory estoppel, fraudulent inducement, negligent misrepresentation; no reasonable reliance
  
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  procedure: summary judgment dismissal
  

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  reasonable accommodation, interactive process, good faith communication, employee quit
  
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  summary judgment, issues for jury
  

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  Littler Healthcare Employment Counsel article at http://www.healthcareemploymentcounsel.com/2013/07/18/michigan-hospital-worker-who-walked-off-job-allowed-to-pursue-fmla-and-ada-claims/ [enhanced lexis.com version].
  
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  Business Management Daily Managing Employee Disabilities: Accommodate … Don’t Dictate article at http://www.businessmanagementdaily.com/36133/managing-employee-disabilities-accommodate-dont-dictate.
  

Evidence indicated the hospital offered accommodation, but there were fact questions for a jury to determine about the sufficiency of the process by the parties. Read the informative articles for details and suggestions.

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  Continuing violation, limitation of actions, statute of limitations, untimely filing
  
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  Department of Fair Employment and Housing, racial discrimination, harassment, retaliation, disability, failure to accommodate, workers compensation
  

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  litigation: agency law interpretation: public policy, freedom of contract, changed conditions
  
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  civil procedure: re-litigation, collateral estoppel
  

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  employment: discrimination, adverse employment action, termination of employment
  

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  statute: construction
  
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  common law legal theories: libel and slander, actionable tort
  

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  Official citation: http://weblinks.westlaw.com/result/default.aspx?action=Search&cnt=DOC&db=MA-ORSLIP&eq=search&fmqv=c&fn=_top&method=TNC&mt=Westlaw&n=3&origin=Search&query=TO%28ALLSCT+ALLSCTRS+ALLSCTOJ%29&rlt=CLID_QRYRLT53723254711237&rltdb=CLID_DB11505254711237&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=MAOR1.0&service=Search&sp=MassOF-1001&srch=TRUE&ss=CNT&sskey=CLID_SSSA34521254711237&sv=Split&vr=1.0
  
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  Universal hub citation: http://www.universalhub.com/2013/marc-flagg-vs-alimed-inc.
  

Held: The Commonwealth’s antidiscrimination statute (six or more employees) bars employment discrimination based on handicap, and it has been interpreted to prohibit employers from discriminating against an employee based on the handicap of a person associated with the employee:

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  mortgage loan officers, overtime, not exempt
  
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  administrative law, Administrative Procedure Act (APA) -- 5 U.S.C. §§ 551-559, agency rule, definitive interpretation, amended rule, significant revision, notice and comment required
  

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  The appellate court ruled in favor of the Mortgage Bankers Association and vacated a 2010 DOL Administrative Interpretation declaring that mortgage loan officers did not qualify under the FLSA “administrative exemption” to overtime pay.
  
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  The D.C. Circuit widely is considered as second only to the United States Supreme Court. Though a decision may not necessarily carry the controlling authority of the USSC, its decision may provide persuasive authority in similar situations.
  

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  During the Bush administration, the Department of Labor (DOL) in 2006 issued an Administrative Interpretation finding that the typical job duties of mortgage loan officers fell within the “administrative exemption” to the FLSA’s overtime requirements.
  
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  Subsequently, under the Obama administration, the DOL in 2010 reversed its position and declared that mortgage loan officers are not exempt under the FLSA.
  

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  The Mortgage Bankers Association sued the DOL on the contention based upon established precedent that “When an agency has given its regulation a definitive interpretation, and later significantly revises that interpretation, the agency has in effect amended its rule, something it may not accomplish [under the APA] without notice and comment.”
  
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  At trial, the D.C. District Court denied the Mortgage Bankers Association’s motion for summary judgment.
  
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  On appeal, the D.C. Circuit reversed the lower court, but did not comment on the validity of the DOL’s revised interpretation and the question of compliance with the APA, and it specifically left open the possibility of the DOL conducting the required notice and comment rulemaking to implement the change.
  

Thus, a significant general implication of this case is that an important federal court has recognized restrictions on the ability of the DOL to change its established Administrative Interpretations without engaging in the proper rulemaking process, and the appellate court noted that the FLSA is “an old law DOL must adapt to new circumstances”:

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  Ralphs and several trade associations sought U.S. Supreme Court review of the California decision on the grounds that:
  

1. 
   the state laws at issue are discriminatory because they sanction trespassing on private property by labor unions to engage in expressive activities such as picketing, but not by any other organizations, and
   
2. 
   the state laws violate constitutional property rights.
   

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  The USSC denial was not a decision on the merits of these arguments, so for the time being, the effect of the denial is that labor unions, but not other organizations, will have the right to engage in picketing and other expressive activities on an employer's private property. Bear in mind, however, the dissent in the Ralphs case noted that the decision "places California on a collision course with the federal courts
  

NLRA:

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  nursing homes, registered nurses, authority for adverse employment action, supervisors
  
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  Noel Canning, recess appointment issue
  

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  The Golden Living Center (Center) in Springfield, Tennessee, is a short-term and long-term care center for approximately 120 residents. It employs twelve RNs, ten LPNs and forty-six CNAs. The director of nursing and two assistant directors of nursing oversee patient care at the Center, and the RNs report directly to the director of nursing.
  
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  October 2011 – union organizing activity began, and the controversy arose about the status of the RNs, resulting in considerable activity and controversy and refusal to bargain.
  

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  Initially, the appellate court rejected the Center’s argument that the NLRB’s order as void on its face because the Board lacked jurisdiction (see Noel Canning v. N.L.R.B., 705 F.3d 490 (D.C. Cir. 20130).
  
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  But dealing with the merits of the appeal, the appellate court’s holding depended on whether the RNs have the authority to “discipline” CNAs as contemplated by the NLRA, and the majority found that they do because:
  
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    The Center’s progressive discipline policy required that CNAs must receive four written warnings before they are terminated, RNs have authority to issue written memoranda in response to CNA misconduct, and each written memorandum leads automatically results in a written warning as “step” in the chain of progressive discipline.
    
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    RNs do not recommend disciplinary action or ultimately make the decision whether to terminate, but the majority found that the memoranda constitute “discipline” because:
    
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      they “’lay a foundation’ for future adverse employment action”, and “where an employer maintains a defined progressive discipline policy, and cited violations of company policy count toward the number of missteps permitted before termination, those with independent authority to issue the citations are supervisors”, and
      
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      RNs exercise independent judgment when issuing discipline, as they “can either do nothing, provide verbal counseling, decide whether to document the counseling, or draw up a written memorandum.”
      

FLSA: personal liability, president, CEO, employer, active involvement

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  regular, weekly contacts with individual stores, vendors, employees, and customers,
  
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  occasional (though maybe not frequent) involvement in merchandising at the store level,
  
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  involved with customer complaints, and
  
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  involved in the promotion of key employees.
  

Remember, the 2^nd circuit is an influential one for persuasive authority, so bear in mind the reasoning of this decision and how it might be cited in other jurisdictions.

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  FLSA – applies only when wages either fall below the statutory minimum or hours rise above the overtime threshold – the Act “simply does not contemplate a claim for wages other than minimum or overtime wages.”
  
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  Claims – unpaid for:
  
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    work performed during meal breaks,
    
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    before and after scheduled shifts, and
    
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    during required training sessions.
    

Summary by the appellate court:

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  pro se appeal
  
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  Failures to exhaust administrative remedies -- jurisdiction– failure to exhaust administrative remedy – no subject matter jurisdiction
  
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  Insufficient proof:
  
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    evidence – no causal connection – no prima facie proof
    
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    retaliation, wrongful termination – race, hostile work environment