Human resources & employment law cumulative case briefs
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Controlling law. Though this case involved consumer goods arbitration, its reasoning likely could expand to employment situations. Under this decision federal law (FAA) preempts state law governing arbitration agreements. AT&T Mobility LLC v. Concepcion, No. 09-893, ____ U.S. ____ (published 4/27/11, decided 8/16/10); 131 S. Ct. 45; 177 L. Ed. 2d 1134; 2010 U.S. LEXIS 5634; 79 U.S.L.W. 3091; http://www.supremecourt.gov/opinions/10pdf/09-893.pdf [enhanced lexis.com version]. Vincent and Liza Concepcion signed a two-year service contract with AT&T Mobility (ATTM) in 2002, and the contract contained a clause requiring arbitration of any disputes with ATTM directly, and prohibiting them from participating in any class action lawsuit against ATTM. A dispute arose about charges, and as you may recall class actions often are allowed by courts when the amounts in question might be too small to pursue in court, but there are issues of fact and law that in an aggregate of a number of individuals would be worth the effort. In their California legal action ATTM filed a motion to compel arbitration, which the court denied on the ground that the arbitration clause was unconscionable under California law, and that the FAA did not preempt California law. ATTM appealed to the U.S. Court of Appeals for the 9th Circuit, which held that California law was not preempted and agreed with the district court that ATTM's class action waiver provision was unconscionable. It also rejected ATTM's argument that the "premium" payment rendered the contract valid because ATTM could avoid the premium payment by offering the full amount of the claim before going to arbitration, which here was the very modest sum of $30.22. As a practical matter, the amount ATTM was likely to pay was too small to induce the average consumer to pursue an individual claim. The United States Supreme Court held that though the FAA's savings clause permits arbitration agreements to be invalidated by "generally applicable contract defenses," it does not allow invalidation by defenses applying only to agreements to arbitrate. Justice Scalia explained:
Consequently, the FAA preempted the California rule. The dissent argued that "class proceedings are necessary to prosecute small-dollar claims that might otherwise slip through the legal system", but the majority held that "States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons." NMPEBA: Public Employee Bargaining Act, paramedic training contracts, mandatory bargaining, county cannot unilaterally enter into housing agreement contracts, must include union in negotiations Controlling law: Summary by the NM Court of Appeals: {2} [E]mployees of the Los Alamos County Fire Department and members of the Union. Defendants were accepted to participate in a voluntary paramedic training program at Eastern New Mexico University in Roswell, New Mexico. The County offered contracts to Defendants called housing agreements, which Defendants entered into with the County. The contracts provided that the County would allow Defendants to continue their employment on paid status with full salary while they attended the paramedic training, that it would provide per diem or reimbursement for lodging, meals, and travel, and that it would make a vehicle available to them to drive to and from Roswell. {3} Defendants agreed that in return they would comply with several provisions in the contract, including maintaining employment as firefighter paramedics with the County for at least two years after completion of the fourteen-month training program. A failure to abide by the terms of the contract could result in disciplinary action up to and including termination. Further, Defendants agreed that if they failed to complete the training or maintain employment with the County as provided by the contract, they would reimburse the County for all expenses incurred by the County associated with the training. The County could, in its sole discretion, waive the reimbursement requirement for good cause shown. {4} Both Defendants executed a contract with the County, and both completed the paramedic training program. Martinez signed his contract and remained employed with the County for seven months after completing the program. He then voluntarily left his employment without making reimbursement. Dickman signed his contract and remained employed for six months after completing the program. He also voluntarily left his employment without making reimbursement. {5} The County and the Union were parties to a collective bargaining agreement (CBA) that covered Defendant’s bargaining unit, effective January 1, 2004, through December 31, 2005. The CBA contained provisions relating to wages, hours, and terms and conditions of employment. The paramedic training contracts, however, were not covered by the CBA. {6} In addition to the specific provisions relating to wages, hours, and terms and conditions of employment, the CBA contained a management-rights clause that gave management certain specific operational and policy rights, as well as “all rights not specifically limited by this [CBA].” Finally, the CBA contained a “zipper clause,” which provided that the CBA was the “complete and only agreement between the parties,” that all the mandatory subjects of collective bargaining had been “discussed and negotiated upon,” and that each party waived the right “to bargain collectively with respect to any subject matter not specifically referred to or covered in [the CBA.]” County of Los Alamos v. Martinez, No. 29,085, 2011-NMCA-027 (2/7/11); 2011 N.M. App. LEXIS 21; 190 L.R.R.M. 2415; access to the official opinion PDF: http://www.nmcompcomm.us/nmcases/NMCACurrent.aspx [enhanced lexis.com version]. FMLA: past claims may be settled, but not future ones Illustrative; not controlling law. This case has interesting possibilities to discuss with your employment law attorney. It’s from the 4th Circuit [ours is the 10th], but the reasoning seems quite persuasive: the regulations have changed. Whiting v. Johns Hopkins Hospital, No. 10-1158 (4th Cir., 3/14/11, unpublished); 2011 U.S. App. LEXIS 5199; http://scholar.google.com/scholar_case?case=10046100461375103188&q=Whiting+v.+Johns+Hopkins+Hospital&hl=en&as_sdt=2,32&as_vis=1 [enhanced lexis.com version]. When the 4th Circuit decided Taylor v. Progress Energy Inc., 493 F.3d 454 (4th Cir. 2007), DOL's regulations barred waiving of substantive and proscriptive Family and Medical Leave Act (FMLA) rights unless the DOL or a court approved the release/waiver. Subsequently, DOL amended its regulations to allow past claims to be releases or waived in a private settlement agreement, and the Whiting court allowed the waiver to stand. Johns Hopkins Hospital terminated Whiting’s employment after she had taken all of her FMLA leave rights and the hospital filled her position. Whiting filed a discrimination claim with the EEOC alleging violation of the ADA. At the EEOC mediation she signed two settlement agreements: (1) the EEOC's mediated settlement agreement and (2) a separate Release and Settlement Agreement (RSA). That RSA waived any rights or claims "arising out of or in any way relating to [her] employment, including but not limited to any claims for breach of contract, wrongful discharge, violation of Title VII . . . the [ADA] . . ., the [ADEA], or any other federal, state, or municipal statute or ordinance relating to [her] employment." Whiting further agreed she would "neither file nor cause or permit to be filed on her behalf and . . . waive her right to recover . . . upon filing, any lawsuits, claims, grievances, complaints, or charges in any forum, or any dispute arising out of her employment relationship with [the employer] through December 20, 2007." Despite the terms of the RSA, she filed a complaint in federal trial court alleging violations of the FMLA. Her employer filed a motion to dismiss or, in the alternative, for summary judgment on the grounds that the employee's claim was barred by the RSA and that the DOL's 2008 FMLA regulations specifically allowed private settlements of FMLA claims. Whiting opposed her employer’s motion on the grounds that the new DOL regulations, issued more than one year after she signed the RSA, did not apply and, further, that, the DOL's new regulations were contrary to the FMLA. The trial judge ruled in favor of the employer. On appeal, the 4th Circuit held that private settlements of FMLA claims are enforceable, including releases pre-dating the 2008 amended regulations based on this reasoning:
NLRA: National Labor Relations Act, union activities, employment terminated, federal law preemption, state court employment complaint dismissed Controlling law. This plaintiff was filed for his union activities, which is a matter covered by the National Labor Relations Act. Recognizing this preemption, the district judge dismissed the claim for lack of subject matter jurisdiction, and the NM Court of Appeals affirmed, stating that the employee needed to file with the NLRB. Humphries v. Pay & Save, Inc., NO. 29,197, 2011 N.M. App. LEXIS 11 (No. 29,197) (N.M. Ct. App., Mar. 11, 2011); [waiting for formal publication citation URL; in the meantime the slip opinion can be located in the NMCA index at http://www.nmcompcomm.us/nmcases/NMCASlip.aspx] [enhanced lexis.com version]. ADA: Not regarded as disabled, no retaliation, no constructive discharge, summary judgment in favor of employer Controlling law. From time to time a case appears clearly illustrating excellent business and human resources best practices. Read this case in its entirety -it is highly recommended because it deals with many important factors that cannot be adequately captured in a brief; I started to outline it and saw that was not going to be brief. I couldn’t have constructed a better example of what to do in this kind of situation. Essentially, the ADA does not require employers to understand the nature and extent of every possible disability. As such, employers confronted with a condition they know little or nothing about can and should be investigated and learned about. Caution and inquiry in correcting any temporary mistaken attitude or belief does not equate to regarding an employee as disabled because that temporary uncertainty is not the same as considering an employee disabled. However, failing to investigate for clarification and or persisting with that mindset may result in ADA liability for regarding the employee as disabled. In this case the human resources manager was open-minded and inquiring, honest about her lack of knowledge, educated herself, kept in contact with health professionals regarding the employee in question. And communicated openly with her executives. Fryer v. Coil Tubing Services, LLC, No. 09-8105 (10th Cir., 2/9/11); 2011 U.S. App. LEXIS 2637; 2011 WL 441695 (10th Cir., Feb. 9, 2011); http://www.ca10.uscourts.gov/opinions/09/09-8105.pdf [enhanced lexis.com version]. Arbitration, Title VII: collective bargaining agreement (CBA) grievance arbitration dismissed by arbitrator, Title VII national origin complaint allowed Controlling law. This 10th Circuit Court of Appeals case is based on a 1974 United States Supreme Court decision reversing 1oth circuit case. Balancing public interest in finality of arbitration decisions with protecting employees against illegal discrimination has left a long history of federal cases, which are cited and discussed in this current 10th Circuit opinion. Accordingly, consider reviewing CBAs to see if they explicitly authorize arbitration to cover and decide Title VII issues. John Matthews, originally from India, started with the Denver News Agency in 1983, and in 2003 he had risen to a unit supervisor. Following complaint by a female employee of inappropriate comments to her, he was placed on leave. He was demoted from supervisor on July2, 2005, and on that day he walked of the job and obtained a certificate from a physician that he was medically unable to return to work. He also filed a union grievance for his demotion, alleging national origin discrimination. The arbitrator ruled the demotion was for complaints by employees, not national origin. He also filed for Social Security Disability benefits a bulging disc and an affective disorder, and he received SSD benefits. The trial court granted the employer’s motion for summary judgment, which the appellate court reversed to allow a jury trial. Basically, the appellate reasoning was that his agreement to arbitrate under the CBA did not waive his right to claim Title VII discrimination. However, the appellate court did affirm the district court ruling that in his discrimination claim he had failed to prove a prima facie (legally sufficient) case, i.e., that he was qualified for the supervisor position because his statement under oath in the SSD hearing indicated otherwise, and he could not explain the inconsistency. His retaliation claim was remanded [returned] to the district court for trial on the grounds that a reasonable jury might that other employees were not demoted (1) for similar misconduct and (2) there might have been motivation based on his complaints about bias in the month before his demotion. Handbooks: ten major mistakes Illustrative examples from a leading law firm: http://shawvalenza.com/publications.php?id=306. Public agency: City of Albuquerque Merit System Ordinance termination process Controlling law, but of narrow application limited to a specific situation. As such, it is noted but not briefed. This NM Court of Appeals case involved a Customer Service Representative of the City’s Transit Department, and it was not certified to the NM Supreme Court. The NM Court of Appeals held that:
City of Albuquerque v. AFSCME Council 18, on Behalf of Amy Puccini, (1/27/11); 2011 NMCA 21; 2011 N.M. App. LEXIS 5; ftp://barbulletin:barbulletin@nmbar.nmbar.org/BB_04_06_11.pdf [enhanced lexis.com version]. NLRB: handbooks, overly broad language: no solicitation, no distribution, no loitering, dress code - buttons; ; general disclaimer language; decertification election set aside Controlling law. Employee handbook rules governing certain forms of communication were ruled by the National Labor relations board to discourage communications among employees about union matters and activities. Apparently general disclaimer language about no intention of infringing on National Labor Relations Act (NLRA) rights was insufficient, so employers need to review their handbooks and confer with their labor attorneys to see if their handbooks need to be revised. For two years the company had recognized the union at the time the employees filed a petition for an election to decertify the union. The company’s 63-page employee handbook contained, among other things, these policies:
The union had not objected to those handbook requirements during the previous two years, nor was there any evidence that the rules had any effect on the decertification election result. The employer responded to the union’s unfair labor practice (ULP) allegation by sending a clarifying memorandum to all employees stating that the rules were not intended to infringe on employees' rights under the NLRA. Further, the employer announced that it was amending two of its policies and deleting the prohibition on buttons and insignia. Nonetheless, the NLRB ruled the handbook language was too broad and infringed NLRA rights. Jurys Boston Hotel, 356 NLRB No. 114 (3/28/11); http://www.laborrelationsupdate.com/Jurys%20Boston%20Hotel,%20356%20NLRB%20No.%20114%20%28March%2028,%202011%29.pdf [enhanced lexis.com version]. NLRB: pro-union solicitation by supervisors Controlling law: Seven supervisors engaged in solicitation for unionizing and the company engaged in strong opposition to unionizing. The National Labor Relations Board decided that the actions of the supervisors were not objectionable because they balanced out the action of the company. Terry Machine Co., 356 N.L.R.B. No. 120 (2011); http://www.laborrelationsupdate.com/Jurys%20Boston%20Hotel,%20356%20NLRB%20No.%20114%20%28March%2028,%202011%29.pdf [enhanced lexis.com version]. NLRB: protection of wearing pro-union t-shirts that could disparage employer’s reputation with customers Controlling law: Employees wore “prisoner” shirts during the work day during the course of collective bargaining, and were in some instances worn during visits to customer homes and businesses. The employer prohibited that and threatened to suspend employees who defied the prohibition. The shirt was “mostly a plain white T-shirt with ‘Inmate #’ in relatively small print on the upper-left front. On the back of the shirt, two sets of vertical stripes appeared with ‘Prisoner of AT&T’ in between”. The company said was concerned the shirts would cause fear and alarm its customers. The NLRB reasoned that the “Prisoner” shirt was not reasonably expected, under the circumstances, to cause fright or distress among the employer’s customers because the tee shirt itself could not be mistaken for a prison garb — “the totality of the circumstances would make it clear that the technician was one of Respondent’s employees and not a convict.” Southern New England Telephone Co., 356 NLRB No. 118 (2011) http://www.laborrelationsupdate.com/Jurys%20Boston%20Hotel,%20356%20NLRB%20No.%20114%20%28March%2028,%202011%29.pdf [enhanced lexis.com version]. FLSA: overtime, miscalculation, legal advice, reckless disregard, good faith, statutes of limitations, willfulness, back pay, liquidated damages; McDonnell Douglas evidentiary proof steps Controlling law. Seeking legal advice needs to be done adequately, which means, among other things, selecting competent counsel, disclosing all of the facts (favorable and unfavorable), and following the advice of the attorney. Mumby v. Pure Energy Servs. (USA), Inc., No. 10-8030 (10th Cir., 2/22/11); 2011 U.S. App. LEXIS 3460; 17 Wage & Hour Cas. 2d (BNA) 449; http://www.ca10.uscourts.gov/opinions/10/10-8030.pdf [enhanced lexis.com version]. Pure Energy is a Canadian company that began doing business in the U.S. Cindy Rucker was hired to run payroll, she expressed concerns about pay policies, and she was referred to a Colorado attorney, Paul Hurcomb. Pure Energy’s policy was to pay its employees a flat “day rate” regardless of the number of hours they actually worked. Hurcomb did no legal research and advised that Pure Energy would be in compliance with the FLSA as long as (1) its employees didn’t work more than 12 hours per day and (2) overtime was paid for any hours worked over 40 in a week [incorrect under the circumstances because the flat rate would not cover workers working longer hours]. However, that was irrelevant because Pure Energy continued its payment policy in what the courts found to be “in reckless disregard of FLSA requirements”. Further, it was on notice of FLSA overtime payment requirements. Mumby and others sued under the FLSA, and the federal district trial court awarded both back pay and liquidated damages, plus other recovery. The courts found the company’s subjective belief that it was in compliance with the Act was unreasonable. One possible defense under the FLSA is that consulting an attorney may show good faith. Succeeding with that defense requires the employer to prove it:
Pure Energy failed to do that. On another aspect of the case, the statute of limitations on FSLA claims is usually two years. However, it is three years for willful violations, and in those instances willful violations may be compensated by “liquidated damages” up to double the amount of the back pay, and in addition to the back pay. Tribal sovereignty: tribal “Title VI” type claim not allowed in federal court; handbook terms inapplicable Controlling law. The long-standing legal doctrine of sovereign immunity precludes legal action against a government without its consent, which means that in the United States the doctrine protects the federal government, state governments, and Indian tribes. The plaintiff alleged Title VII discrimination by the Native American casino in which he had worked and sued in federal court. The casino raised the defense of sovereign immunity because the alleged acts occurred in the tribes land, and thus in its jurisdiction. In response, the plaintiff contended that though Congress may have affirmed tribal immunity in the language of Title VII, the tribe had waived its immunity because a sentence in the casino’s employee handbook promised to “comply with the provisions of Title VII.” Our 10th Circuit Court of Appeals stated that “. . . the waiver . . . of sovereign immunity must be unequivocally expressed rather than implied”, and noted that most case law dealing with this issue has held that such waivers must be stated in terms of expressed waivers making explicit references to being sued in federal or state court. Thus, though the casino’s handbook “may convey a promise not to discriminate,” said the court, it in no way constitutes consent to be sued in federal court. Nanomantube v. Kickapoo Tribe, No. 09-3347 (10th Cir., 1/31/11); 631 F.3d 1150; 2011 U.S. App. LEXIS 1910 (10th Cir., Kan., Jan. 31, 2011); 111 Fair Empl. Prac. Cas. (BNA) 610; http://www.ca10.uscourts.gov/opinions/09/09-3347.pdf [enhanced lexis.com version]. Title VII: harassment, discrimination, retaliation; pro se; summary judgment for employer Controlling law. Investigation of the employee’s complaints of harassment and discrimination found no evidence to support her complaints. Rather, evidence supported termination of her employment for deficient performance and failure to meet the goals in her performance improvement plan (PIP). Faragalla v. Douglas County Sch. Dist, Nos. 09-1393 and 10-1433 (10th Cir., 1/12/11; unpublished); 2011 U.S. App. LEXIS 604; 111 Fair Empl. Prac. Cas. (BNA) 523; http://www.ca10.uscourts.gov/opinions/09/09-1393.pdf [enhanced lexis.com version]. Union, NLRB: protected concerted activity, union organizing handbill distribution, new type of access rights, contractor and third-party employees, union organizing handbill distribution Download 5.55 Mb. Share with your friends:
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