Jurisdiction: 10th Circuit

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  Marilyn Harrison alleged that her supervisor, Michael Wargo (Wargo), subjected her to a hostile work environment by:
  
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    yelling at her about her work performance,
    
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    giving her unwarranted disciplinary notices, and
    
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    otherwise verbally abusing her.
    
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  She contacted human resources on several occasions to complain about his behavior but did not complain he was motivated by discrimination in any of those exchanges.
  
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  In August 2009, he yelled at her for an extended period of time about her work, and a few days later during another meeting with him, she lost consciousness and passed out and was taken to the emergency room.
  
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  Shortly after the incident, she complained to Vernon McKenzie, M-D’s vice president of human resources, about Wargo’s conduct but did not allege that she thought Wargo was motivated by discrimination based on her race, age, or gender.
  
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  Because her doctor recommended she take time off from work, she subsequently took her full FMLA leave.
  
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  During this time, she filed a formal complaint with M-D that she was discriminated against on the basis of her race, age, and gender, referring to Wargo’s insulting and verbally abusive behavior.
  
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  After an investigation, Wargo was warned about his treatment of her, but the company concluded there was no indication that discrimination played a role.
  
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  After her leave expired, she and McKenzie discussed her return to work. McKenzie offered Harrison assurances that Wargo and other M-D employees would treat her with dignity and respect, but Harrison informed McKenzie that she would not return if she had to interact with Wargo because prior assurances about Wargo had failed.
  
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  M-D then advised Harrison that it understood her refusal to work as a voluntary resignation and terminated her employment.
  

• 
  Harrison brought suit alleging:
  
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    discrimination on the basis of race, age, and gender based on Wargo’s conduct.
    
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    M-D was guilty of retaliation, alleging that Wargo drafted a disciplinary letter about her in retaliation for her complaints about him, and
    
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    interference with her rights under the FMLA based on M-D’s failure to accommodate her request that she not work with Wargo and the subsequent termination of her employment.
    
• 
  After the completion of discovery, M-D moved for summary judgment.
  
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  In its summary judgment order:
  
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    Discrimination: The district court found that she was unable to establish a prima facie case of discrimination because there was no evidence that Wargo’s treatment of her was based on her race, age, or gender.
    
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    Retaliation: The court found:
    
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      that her complaints to human resources prior to Wargo drafting the letter could not constitute protected activity because she did not complain that Wargo was motivated by a discriminatory animus, and
      
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      she failed to show she suffered an adverse employment event.
      
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    FMLA: She received her full FMLA leave and her position was held open for her once her leave ended – the second element of interference claim requires showing that employee was prevented from taking full 12 weeks of FMLA guaranteed leave, denied reinstatement following leave, or denied initial permission to take leave. M-D terminated her position only after she refused to return to work, thus the district court concluded that she could not show she was prevented from exercising her rights under the FMLA nor could she establish a retaliation claim.
    
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  The appellate court affirmed the district court’s order granting summary judgment dismissal of all of her claims.
  

Public Sector:

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  Appeal and Error: Preservation of Issues for Appeal; and Standard of Review
  
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  Civil Procedure: Arbitration
  
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  Commercial Law: Uniform Arbitration Act
  
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  Constitutional Law: New Mexico Constitution, General
  
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  Employment Law: Collective Bargaining; Compensation and Commissions;
  
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  Employment Contract; and Labor Unions
  
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  Government: Public Employees
  
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  Remedies: Arbitration
  
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  Statutes: Legislative Intent
  

• 
  Executive Order 11246, 9-28-65
  
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    Contract or subcontract of $50,000 or more and
    
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    50 employees or more
    
  • 
    Race, color, religion, sex or national origin
    
• 
  11375: Amended 11246,
  
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  11478: AAP in federal agencies, and
  
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  12138: AAP in support of female-owned business
  

Essentially, the proposed new regulations that are scheduled to take effect in early 2013 strengthen and expand on previous regulatory recommendations and make them mandatory. Enforcement is by the Department of Labor by its Office of Federal Contract Compliance. See:

Below is an excerpt from the website, so check everything to ensure you or your client(s) will be in compliance:

1. 
   Why does OFCCP want to revise its Section 503 regulations?
   
2. 
   How does the NPRM propose to amend the Section 503 regulations?
   
3. 
   Can OFCCP tell me more about the proposed utilization goal?
   
4. 
   What changes does the NPRM propose to the contractor’s obligation to invite applicants to self-identify as an individual with a disability?
   
5. 
   What is the value of the proposed annual survey of employees?
   
6. 
   Does OFCCP recommend additional data collection responsibilities in its NPRM?
   
7. 
   Does the NPRM propose changes to the way OFCCP conducts compliance evaluations?
   
8. 
   Does the NPRM propose a mandatory job listing requirement?
   
9. 
   Does the NPRM suggest changes to the recruitment of individuals with disabilities?
   
10. 
    Does the NPRM propose any changes related to reasonable accommodation?
    
11. 
    What revisions does the NPRM propose with respect to the ADA Amendments Act (ADAAA) of 2008?
    

Bureau of Labor Statistics data show that:

• 
  79% of persons with disabilities are not in the labor force compared with
  
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  30% without disabilities.
  

1. 
   Facebook
   
2. 
   When discipline can be imposed
   
3. 
   Backpay and tax allocation
   
4. 
   Charter school, NLRA
   
5. 
   Dues deductions
   
6. 
   Dues
   

1. 
   Hispanics United of Buffalo – The Board found that the employer unlawfully fired five employees because of their Facebook posts and comments about a coworker who intended to complain to management about their work performance. In its analysis, the Board majority applied settled Board law to the new world of social media, finding that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act. Member Hayes dissented.
   
2. 
   Alan Ritchey, Inc. – In a unanimous decision that resolved the last of the two-member cases returned following the 2010 Supreme Court decision in New Process Steel, the Board found that where there is no collectively-bargained grievance-arbitration system in place, employers generally must give the union notice and an opportunity to bargain before imposing discipline such as a discharge or suspension on employees. Member Hayes was recused.
   
3. 
   Latino Express – In a decision that will affect most cases in which backpay is awarded, the Board decided to require respondents to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum. The Board will also require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. The Board requested briefs in this case in July 2012. Member Hayes did not participate in the case.
   
4. 
   Chicago Mathematics & Science Academy – Rejecting the position of a teachers’ union, the Board found that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. The non-profit was not the sort of government entity exempt from the National Labor Relations Act, the Board majority concluded, and there was no reason for the Board to decline jurisdiction. Member Hayes dissented in part.
   
5. 
   United Nurses & Allied Professionals (Kent Hospital) – The Board, with Member Hayes dissenting, addressed several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision. On the main issue, the majority held that, like all other union expenses, lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment. The Board invited further briefing from interested parties on the how it should define and apply the germaneness standard in the context of lobbying activities.
   
6. 
   WKYC-TV, Gannet Co. – Applying the general rule against unilateral employer changes in terms and conditions of employment, the Board found that an employer’s obligation to collect union dues under a check-off agreement will continue after the contract expires and before a bargaining impasse occurs or a new contract is reached. Member Hayes dissented.
   

Title VII, FLSA: race, discrimination, wrongful discharge in violation of Colorado public policy, failure to pay overtime – FLSA violation, summary judgment, mixed-motive fact issue

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  Willie Barlow, Jr., African American, was employed as a security guard and also was to perform janitorial work through a company he had formed.
  
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  He began receiving workers’ compensation benefits after he sustained an injury at work in June 2007.
  
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  In November 2007, his janitorial services contract was terminated.
  
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  In April 2008, he was fired from his security guard position after he failed to notice and report a theft of several trailer doors from company premises.
  

The trial court concluded that:

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  there was no evidence he was fired for race-based reasons, or in retaliation for his workers’ compensation claim;
  
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  He performed his janitorial work as an independent contractor, not an employee, which precluded asserting a claim for wrongful discharge from that position; and
  
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  Barlow’s status as an independent contractor precluded an FLSA claim for overtime.
  

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  Discrimination:
  
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    Without direct proof of discrimination, a plaintiff in a race discrimination case must rely on the three-part, burden-shifting framework set out by the Supreme Court in McDonnell Douglas. Under this framework, the plaintiff must first put forth a prima facie case of discrimination. Khalik v. United Airlines, 671 F.3d 1188, 1192 (10th Cir. 2012). Only after the plaintiff clears this initial hurdle does the burden shift to the employer to prove a “legitimate, non-discriminatory reason for the adverse employment action.” Id. If the plaintiff does not establish a prima facie case, his entire case fails. McDonnell Douglas, 411 U.S. at 802 (“The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination.”).
    
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    The critical prima facie inquiry in all cases is whether the plaintiff has demonstrated that the adverse employment action occurred under circumstances which give rise to an inference of unlawful discrimination, and he failed to do that.
    
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  FLSA: His overtime pay claim failed because under “economic realities” test, which seeks to look past technical, common law concepts of the employment relationship to determine whether, as a matter of economic reality, a worker is dependent on a given employer. The focal point in deciding whether an individual is an employee is whether the individual is economically dependent on the business to which he renders service, or is, as a matter of economic fact, in business for himself.” * * * “In applying the economic reality test, courts generally look at:
  
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    the degree of control exerted by the alleged employer over the worker;
    
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    the worker’s opportunity for profit or loss;
    
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    the worker’s investment in the business;
    
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    the permanence of the working relationship;
    
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    the degree of skill required to perform the work; and
    
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    the extent to which the work is an integral part of the alleged employer’s business.”
    
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    It also “includes inquiries into whether the alleged employer has the power to hire and fire employees, supervises and controls employee work schedules or conditions of employment, determines the rate and method of payment, and maintains employment records.” * * * “None of the factors alone is dispositive; instead, the court must employ a totality-of-the-circumstances approach.”
    
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  Retaliation: He was found to have raised a genuine issue of material fact as to whether he was fired from his security position in retaliation for exercising his right to receive benefits from his workers’ compensation claim. Because his employer alleges it also had a legitimate reason for firing Barlow from his security guard position, the appellate court held there was a mixed-motive question of causation, which remains as a question of material fact that survives summary judgment.
  

FLSA: private settlements permitted, court approval unnecessary

When the United States Supreme Court (USSC) denies certiorari on a case (rejects the petition requesting to review a case), for all practical purposes that indicates what the law is for all federal jurisdictions. As a strict legal matter:

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  In Martin it declined to review the holding that parties may privately settle and release wage claims that result from a bona fide dispute as to liability rather than a compromise of guaranteed FLSA rights.
  
• 
  However, in the 11^th Circuit, under Lynn’s Food Stores, Inc. v. United States, FLSA disputes could only be settled if either the U.S. Department of Labor supervised payment or a court approved a settlement after an employee filed a private lawsuit.
  

• 
  For several months running she failed to meet her sales quotas.
  
• 
  She failed to sufficiently improve under Pulte’s performance-improvement plan (PIP), and her employment was terminated.
  
• 
  She claimed that her termination was related to her need to care for her ailing parents and sued under the Family and Medical Leave Act, 29 U.S.C. 2601, on the grounds that:
  
  • 
    the company interfered with her statutory rights and
    
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    it retaliated against her in violation of the Act.
    

• 
  Summary judgment dismissal was granted by the trial judge in favor of Pulte.
  
• 
  The 7^th Circuit affirmed because she failed to provide Pulte with adequate notice that she needed FMLA leave:
  
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    All she had done was to make a few casual comments to her supervisors about her parents’ ill health.
    
  • 
    At the time Pulte decided to terminate her employment she had asked for only a single day off to attend a doctor’s appointment with her father, which her supervisor allowed.
    

ERISA: litigation, procedural issues