Human resources & employment law cumulative case briefs
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Controlling law. Under certain circumstances, the FAA preempts arbitration provisions that one would assume would be governed by state law. When state law prohibits absolutely bans arbitration of a particular type of claim, the FAA may preempt that state law; according to this United State Supreme Court decision, there is no exception in the FAA for personal injury or wrongful death claims that would exclude them from enforceable arbitration agreements. This was not an employment law case, but employers need to be aware of the continuing extension by federal courts of the FAA into state arbitration decisions. One unclear aspect of this decision is the degree to which the state court decision’s alternative holding was influenced by the invalid, categorical rules, i.e., prohibiting personal injury and wrongful death in predispute arbitration agreements – barring them before there is a ground for possible litigation. These kinds of contractual provisions may be barred by state law because they are “unconscionable”, e.g., unusually harsh and shocking to the conscience, such as so grossly unfair that a court will prohibit it or not enforce it. Marmet Health Care Center v. Brown et al., No. 11–391, 565 U. S. ____ (2/21/12); http://www.supremecourt.gov/opinions/11pdf/11-391.pdf [enhanced lexis.com version]. State and federal courts must enforce the Federal Arbitration Act (FAA), 9 U. S. C. §1 et seq., with respect to all arbitration agreements covered by that statute. Here, the Supreme Court of Appeals of West Virginia, by misreading and disregarding the precedents of this Court interpreting the FAA, did not follow controlling federal law implementing that basic principle. The state court held unenforceable all predispute arbitration agreements that apply to claims alleging personal injury or wrongful death against nursing homes. The decision of the state court found the FAA’s coverage to be more limited than mandated by this Court’s previous cases. The decision of the State Supreme Court of Appeals must be vacated. When this Court has fulfilled its duty to interpret federal law, a state court may not contradict or fail to implement the rule so established. See U. S.Art. VI, cl. 2. [Note: “per curium” usually indicates a decision issued by the entire appellate court without naming the author.] Factual background:
[A]s a matter of public policy under West Virginia law an arbitration clause in a nursing home admission agreement adopted prior to an occurrence of negligence that results in a personal injury or wrongful death, shall not be enforced to compel arbitration of a dispute concerning negligence. The decision also alternatively suggestion that there was some possibility under state law unconscionability under state contract law.
Ruling:
[W]hen state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA. Quoting from its 2011 decision in AT&T v.Concepcion.
In each of those cases the Court had held that the FAA preempts state law requirements that would interfere with the federal policy favoring the arbitration of disputes by the parties.
Class actions: trial court class certification affirmed, two classes of bank employees, FRCP Rule 23(a)(2) and Rule 23(c)(1)(B), common issues of fact and law Illustrative; not controlling law. When the United States Supreme Court decided Wal-Mart Stores, Inc. v. Dukes there was speculation that the ruling was not necessarily fatal to all anti-discrimination case class action litigation, and that seems to have been right. The 7th Circuit affirmed the certification of two classes by holding that:
So far this is to first decision made on the issue of the commonality requirement, and it is informative. As can be seen from the Ross opinion: A limitation is that a class must be well defined, but on the other hand Merely because a class might consist of thousands of plaintiffs does not mean a court will find commonality lacking, particularly where there is a broadly enforced policy. For now, remain alert to how this issue develops in other circuits . Ross v. RBS Citizens N.A. d/b/a Charter One, No. 10-3848 (7ty Cir., 1/27/12); 2012 U.S. App. LEXIS 1478; http://www.ca7.uscourts.gov/tmp/FG0JOVZM.pdf [enhanced lexis.com version]. Essential to qualifying for class action status is the requirement of common questions of fact and law, which the Dukes decision noted was missing in its case, i.e., there were too many possible different factual situations and types of law involved. In Ross, the district court certified two classes of bank employees:
Charter One’s primary argument on appeal was that the certification order did not comply with Federal Rules of Civil Procedure Rule 23(c)(1)(B), because it did not adequately define the
Following the issuance of the Dukes opinion, the 7th Circuit then requested the parties deal with essential issue of commonalities of fact and law, which they did. Based on that, it determined that the classes met Rule 23(a)(2)’s commonality requirement under Dukes:
NLRB: illegal strike, adverse employment action, reinstatement, changing reason for firing, temporary replacement workers; timely filing required by §8(d)(3); Federal Mediation and Conciliation Service ("FMCS"); CBA This was a complex situation and the decision relies heavily on specific facts. Essentially though, the lesson is that the employer changed its reason for its adverse employment actions. Thus, this NLRB case did not allow the employer to have things both ways because:
The more prudent approach would have been for the employer to decide on the issue of firing the illegal strikers at the time it discovered the strike was illegal. Douglas Autotech Corp., 357 N.L.R.B. No. 111 (Nov. 18, 2011); URL for NLRB case locator - https://www.nlrb.gov/cases-decisions/case-decisions/board-decisions [enhanced lexis.com version]. [Points to consider from this decision:
: Important article on two recent cases Illustrative; not controlling law. Retaliation claims are the type most frequently filed, and they are increasing. Adequate training is the best preventive measure. Here is the URL for the article: http://www.employmentandlaborinsider.com/retaliation/last-week-my-post-was/. NLRB: complaint about terms and condition of employment, concerted activity; no EEOC discrimination filing Illustrative; not controlling law. Be aware that the anti-discrimination laws are not the only remedies available to employees who believe they have been treated adversely in the workplace. Rather than file a discrimination claim with the EEOC, this employee filed with the National Labor Relations Board, which is unusual, and in this case it was unsuccessful. He was experiencing numerous difficulties in the workplace, some or all of which might have been caused by his own attitudes, behavior or misbehavior, or poor performance. The precipitating event for his firing was an outburst of offensive language directed at the owner of the car distributorship during a discussion about his complaints against the company and the company’s complaints against himyears labor law has been well settled on the issue of employers’ invitations to employees to quit in response to their exercise of protected concerted activity in the workplace. Such an “invitation” is coercive because it conveys to employees that … engaging in … concerted activities and their continued employment are not compatible, and it implicitly threatens discharge of the employees involved. In the case cited below, the factors to consider stated by the appellate court were:
Plaza Auto Center, Inc. v. National Labor Relations Board, Nos. 10-72728, 10-73125, 664 F.3d 286 (9th Cir., 12/11/11); 2011 U.S. App. LEXIS 25072; 192 L.R.R.M. 2340; 161 Lab. Cas. (CCH) P10,432; http://www.ca9.uscourts.gov/datastore/opinions/2011/12/19/10-72728.pdf [enhanced lexis.com version]. There was a hearing on the employee’s labor complaint before an Administrative Law Judge, an NLRB hearing, and then an appeal to the 9th Circuit. The issue in the appellate court was whether the employee’s misbehavior was severe enough for him to lose protection of the NLRA, and the appellate court concluded that the NLRB had erred in its initial assessment that the nature of Aguirre's outburst weighed in favor of protection of the Act and remanded the case to the NLRB to reconsider its decision, stating: [U]nder the Board's own precedents, obscene, degrading, and insubordinate comments may weigh in favor of lost protection even absent a threat of physical harm. In addition, the Board should give full effect to the ALJ's factual and credibility findings, including the finding that Aguirre's behavior was menacing or at least physically aggressive in that small room, unless "the clear preponderance of all relevant evidence convinces" the Board that they are incorrect. [Note: Perhaps the owner should have terminated the meeting after the outburst of offensive language, put the employee on temporary suspension, and then called his human resources manager or the company employment law attorney for advice on how to proceed.] FLSA: article on risk of inappropriate responses to wage complaints; retaliation, litigation example Illustrative; not controlling law. As stated by the 4th Circuit Court of Appeals: The sole question presented by this appeal is whether an employee’s complaint lodged within her company—as opposed to a complaint filed with a court or government agency—may trigger the protection of the FLSA’s antiretaliation provision. This is an issue of first impression in this circuit. Section 215(a)(3) of the FLSA makes it unlawful for a covered employer to "discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding." Minor contends that an employee who complains of FLSA violations to her employer is protected from retaliatory firing because she has "filed any complaint" within the meaning of the antiretaliation provision. The decision then goes on to outline statutory and case law considerations, and it rules that there is a factual issue to be heard and decided by a jury to determine whether the actions of the employer amounted to retaliation for the verbal interaction between the employee and the supervisor and management. URL links:
FMLA: evidence, McDonnell Douglas test applied Illustrative; not controlling law in our 10th Circuit jurisdiction, and as such it will not be briefed in detail. However, be aware of it because there is a strong tendency in discrimination cases for persuasive authority in one area of law in a jurisdiction noted for it its keen and sensible analysis to be adopted in another jurisdiction. Donald v. Sybra, Inc., No. 10-2153 (6th Cir., 1/17/12); 2012 U.S. App. LEXIS 924; 2012 FED App. 0014P (6th Cir.); 2012 WL 117612; http://www.ca6.uscourts.gov/opinions.pdf/12a0014p-06.pdf [enhanced lexis.com version]; has settled the issue in the 6th Circuit of whether FMLA interference claims should be evaluated under the McDonnell Douglas evidentiary proof framework in the Sixth Circuit. McDonnell Douglas is burden-shifting framework:
[Note: The burden of proof always remains with the plaintiff.] NLRB: union activities, union insignia, hospitals, patient care areas, National Labor Relations Act (NLRA) Section 8(a) (1) Controlling law. How controlling and for how long is always an issue with NLRB decisions because the board members are political appointees, so that depends on which party is currently occupying the White House, whether there is a valid quorum of the Board, etc. As with bulletin boards and other displays in the workplace, if all sorts of postings are allowed (e.g., events, sales, meetings, etc.), then union postings cannot be barred. Similarly, such things as nursing school pins, pictures of children, advanced professional designations – even "special messages" – most healthcare providers allow them in some form as "accessories" adorning an employee's identification badge. As such, it is essential to have some regulation of them, and a new decision from the National Labor Relations Board states regulation must be proper and consistent. Note that this decision was issued before the expiration of the recess appointment Craig Becker. Saint John's Health Center, 357 NLRB No. 170 (12/30/11); go to https://www.nlrb.gov/cases-decisions/case-decisions/board-decisions and search for the ruling by the number cited here. The Board held that though a restriction by a healthcare employer against wearing of all union insignia (e.g., buttons and ribbons) in immediate patient care areas is presumptively valid, that presumption "does not protect a selective ban on only certain union insignia" unless the employer can prove that a selective ban is "necessary to avoid disruption of health-care operations or disturbance of patients." [Note: Once again, if this is a problem for your employer or a client you serve, consult an attorney specializing in labor law.] Administrative Remedies: misleading New Mexico Department of Labor’s Charge of Discrimination form; statutes: interpretation; legislative intent, rules of construction; administrative law and procedure, administrative appeal, hearings; judicial review, legislative intent, notice of claim; civil rights; discrimination; procedure, federal law, civil rights: Controlling law. This case is of interest primarily to litigators and will not be briefed in detail. Here is the summary by the NM Supreme Court: Opinion Charles W. Daniels, Chief Justice {1} This case is before us on certification from the United States District Court for the District of New Mexico to answer two questions on whether the New Mexico Department of Labor’s1 Charge of Discrimination form fairly and adequately allows a claimant to exhaust administrative remedies and preserve the right to pursue judicial remedies for individual liability claims under the New Mexico Human Rights Act (NMHRA), NMSA 1978, Sections 28-1-1 to -14 (1969, as amended through 2007). We hold that the Charge of Discrimination form is so misleading that exhaustion of administrative remedies in the circumstances of this case is not required. Lobato v. State of New Mexico Environment Department, Environmental Health Division, et al., No. 32,917 (NMSC, 12/1411); 2012-NMSC-002; http://www.nmcompcomm.us/nmcases/NMSC/2012/12sc-002.pdf [enhanced lexis.com version]. The plaintiff was attempting, among other things, to sue his supervisor individually, which would have been allowed under the NMHRA. However, that requires the name and address of the individual to be included in the claim, and that requirement and information box or line or blank was omitted on the form. There was a box for “particulars”, but that was held to be insufficient. USERRA: discrimination, hostile work environment Controlling law. Consistent with the tendency of the Congress and the courts to borrow and implement theories of liability from the various provisions or rulings in discrimination cases, this legislation extends the theory of hostile work environment to USERRA. Throughout our legal history this borrowing of analysis and reasoning for the most part has provided essential consistency for practitioners – imagine the confusion if there were different legal theories for each antidiscrimination act – though there are a few exceptions to this consistency. The change came from passage of the VOW to Hire Heroes Act of 2011, which was signed into law on November 21, 2011, by the President. VOW contains three main provisions that:
The provision of VOW broadening the scope of USERRA to include a claim for hostile work environment is important because previously it was unclear whether USERRA provided coverage for claims of harassment and hostile work environment based on military status. [Note: Among other things, the issue of damages has not yet been addressed. As always, the better practice is to prevent discrimination in the workplace.] FMLA: clear, actual notice of policies required, calculating leave, failure to notify of change in calculating method; inadequate training Illustrative; not controlling law. Adequate notice and adequate training in FMLA requirements and company policies and practice are essential, and failure to do so were expensive in this case. Also note that probably this entire case could have been avoided by a common sense interactive discussion rather than formalistic reflexive action. Thom v. American Standard, Nos. 09-3507/3508 (6th Cir., 1/20/12); 2012 U.S. App. LEXIS 1166; 2012 FED App. 0016P (6th Cir.); http://www.ca6.uscourts.gov/opinions.pdf/12a0016p-06.pdf [enhanced lexis.com version]. Carl L. Thom, Jr., had worked for American Standard for 36 years:
Four methods are available for calculating FMLA leave, two of which are “rolling” and “calendar year”. The employer contended it used the “rolling” method which it argued he ought to have been aware of because that was what the union was aware of, i.e., it contended that though he might not have known directly of that, such information ought to have been imputed to him. At trial he was awarded $99,960 attorney fees, $2,732 litigation costs, and $104,354 for back pay, which the appellate court affirmed:
FMLA: individual liability, personal liability Illustrative; not controlling law. Individual liability, i.e., personal liability, isn’t frequent, but under certain circumstances it can be imposed under provisions of the FMLA, which do not exist under Title VII. Here the issue was whether the employee’s agency director could be found by a jury to be her employer for the purposes of the FMLA. Haybarger v. Lawrence County Adult Probation & Parole, No. 10-3916 (3d Cir., 1/31/12); 2012 U.S. App. LEXIS 1776; http://www.ca3.uscourts.gov/opinarch/103916p.pdf [enhanced lexis.com version]. Because this is an unusual case, here is the appellate court’s summary: Debra Haybarger appeals the District Court's decision granting summary judgment to William Mancino on her claim under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. Haybarger contends that the District Court erred in holding that, as a matter of law, Mancino was not her "employer" * * * under the FMLA. As a threshold matter, we hold on an issue of first impression in our Court that a supervisor in a public agency may be subject to individual liability under the FMLA. We further hold that there exists a genuine dispute of material fact concerning whether Mancino is himself subject to such liability. Accordingly, we will vacate and remand the matter to the District Court. Accordingly, this is yet another case in which advice from legal counsel is recommended. The reasoning of the appellate court:
Thus, that is what the jury will need to determine at trial. LMRA: challenge by individual to employer’s neutrality agreement with union, under Section 301, LMRA, 29 U.S.C. § 185 Illustrative; not controlling law. This 11th Circuit Court of Appeals case held that an employee may bring a legal action under the Labor Management Relations Act to enjoin enforcement of a “neutrality agreement” between his employer and a labor union. Basically, a neutrality agreement is a contract between an employer and a union in which the employer agrees to remain neutral during the union's organizational campaign. The employer and the union may negotiate the terms of the agreement and may require that any disputes arising from the agreement be resolved through arbitration, and because it is a contract controlling terms and conditions of employment, it is enforceable in federal district court under Section 301 of the LMRA, 29 U.S.C. § 185. Mulhall v. UNITE HERE Local 355, No. 11-10594 (11th Cir., 1/18/12); 2012 U.S. App. LEXIS 944; http://www.ca11.uscourts.gov/opinions/ops/201110594.pdf [enhanced lexis.com version]. At issue is whether or not neutrality agreements are “things of value”, and various federal appellate circuits disagree. Thus, this is a matter for experienced labor attorneys to deal with, though human resources practitioners need to be aware of the issue and when to seek expert advice and counsel. NM Wage: Santa Fe, minimum wage Download 5.55 Mb. Share with your friends:
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