Human resources & employment law cumulative case briefs
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Controlling law. The ADEA claim of a 48 year-old female succeeded because she was told by her supervisor that she was designated as surplus because of her age. However, the ADEA and Title VII claims of that claimant and two of her coworkers failed because the employer's reasons for their RIF layoffs were not shown to be a pretext to cover up discrimination. Recent evaluations of those employees showed they were in the correct group of employees selected for layoff. Selection rankings were based on performance, skills, experience and training. Also, the claimants' statistical evidence was found not to support their claim of pretext because that evidence did not take into account non-biased reasons for gender disparity. Sanders v. Southwestern Bell Telephone, LP, No. 06-5199 (10th Cir., 10/15/08); 2008 U.S. App. LEXIS 21568; 104 Fair Empl. Prac. Cas. (BNA) 833; Internet, Public Library of Law: http://www.plol.org/Pages/Login.aspx?d=HZ%2fxzDfIG075SVAD4AKPzQ%3d%3d&l=Cases [enhanced lexis.com version]. [Note: Your attention is invited to a RIF case briefed earlier in this collection for an example of how the RIF evaluation plan was questioned because it was at odds with the history of favorable periodic evaluations of a 40 year-old, Navajo female employee; Platero v. Baumer, No. 03-2167, 98 Fed. Appx. 819; 2004 U.S. App. LEXIS 10473 (10th Cir., May 27, 2004).] [enhanced lexis.com version] FLSA: overtime pay, "independent contractors" not actually independent Illustrative; not controlling law. An independent contractor must actually be independent. This group of group of insurance "sales leaders" was dependent on the company for which they provided services because it controlled how much they might earn. Consequently, they were deemed to be employees of the company who were entitled to overtime pay. Though the workers had some flexibility of hours and daily schedule, the company controlled opportunities for compensation. The court used the following five criteria in determining if the workers were actually independent contractors: (1) the degree of control exercised by the company; (2) the extent of the relative investments of the workers and the company; (3) the degree to which the workers' opportunity for profit or loss is determined by the company; (4) the skill and initiative required for performing the job; and (5) the permanency of the relationship. Deciding that the company exercised significant control, the workers were held to be employees rather than independent contractors, and thus entitled to overtime pay. The third criterion listed above may have been the most persuasive. Hopkins v. Cornerstone America, No. 07-10952 (5th Cir., 10/13/08); 2008 U.S. App. LEXIS 21406; Internet: http://www.ca5.uscourts.gov/opinions/pub/07/07-10952-CV0.wpd.pdf [enhanced lexis.com version]. FMLA: retaliation, Burlington standard
ADA, ADAAA: Major life activity, coming amendments; reasonable accommodation Controlling law, but probably not for long. Remember, at the beginning of 2009 the ADA Amendments Act becomes effective to liberalize and broaden definitions and other important factors. Review the notice of the ADAAA provided earlier in this collection, and then read the specific amendments to the ADA and discuss them with your employment law legal counsel or other human resources specialists. Here is a URL that will take you to the text of the ADAAA: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s3406pcs.txt.pdf . At issue was whether driving is a "major life activity". Under the current version and interpretation of the ADA, it is not. However, after the ADAAA goes into effect, things probably will change. Kellogg v. Energy Safety Servs. Inc., No. 07-8072 (10th Cir., 10/15/08); 2008 U.S. App. LEXIS 21567; Internet: http://ca10.washburnlaw.edu/cases/2008/10/07-8072.pdf [enhanced lexis.com version]. Ireane Kellogg, safety technician, claimed she was discharged because her employer regarded her as disabled after she was diagnosed as suffering from complex partial seizures. Her employer repeatedly refused over a considerable period of time to return her to her position unless her physician gave her a "full release" because Oilind considered it "safety sensitive". Energy Safety Services, Inc., d/b/a Oilind Safety LLC, "is an industrial safety company that provides safety-related services, such as training and environmental monitoring, to industrial customers. It also rents, sells, and services safety equipment, such as gas monitors and air packs." Driving was part of her duties. As to whether that was a "major life Activity", the appellate court stated: But driving is, literally, a means to an end. The activities enumerated by the EEOC-"caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working"-are all profoundly more important in and of themselves than is driving. [Note: We can anticipate this observation by the appellate court will no longer be valid in the future.] Because the appellate court could not determine from the trial court record if the verdict was based on an incorrect legal theory in the jury instructions, it set aside the verdict and remanded [sent back] the case for a new trial. NLRA, LMRA: NLRA § 7; LMRA § 301; preemption, exception; whistleblower, defamation, intentional infliction of emotional distress (IIED), retaliation, loss of consortium Controlling law. Summary judgment in favor of the employer was affirmed by the NM Court of Appeals. In the interest of certainty in national labor relations problems, the National Labor Relations Act and the Labor Management Act preempt from state litigation most labor union disputes, which is what happened here because the conduct complained of did not rise to a level of severity or egregiousness to qualify for exemption from preemption by federal law. Weise v. Washington Tru Solutions, LLC, 2008-NMCA-121, certiorari not applied for; 2008 N.M. App. LEXIS 96; Internet: http://www.supremecourt.nm.org/opinions/VIEW/08ca-121.html [enhanced lexis.com version] A husband and wife alleged conduct by the husband's employer as a basis for their claims of discrimination and retaliation related to; whistleblower, defamation, intentional infliction of emotional distress (IIED), retaliation, and loss of consortium. These claims failed because the facts they alleged did not rise to the level of "outrageous" behavior necessary to be brought in state court. {13} Marvin may have suffered distress as a result of WTS's actions, but "[e]very employee who believes he has a legitimate grievance [has] some emotional anguish occasioned by his belief that he has been wronged." Buscemi v. McDonnell Douglas Corp., 736 F.2d 1348, 1352 (9th Cir. 1984) (internal quotation marks and citation omitted). Based on the allegations, Marvin was treated differently than other employees- but different treatment does not establish extreme and outrageous behavior. His defamation claim also failed. {20} The United States Supreme Court has also considered state defamation claims in the context of labor disputes. In Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 55-57 (1966), the Supreme Court considered whether a manager could maintain an action for libel based on allegedly defamatory statements published by a union and its officers during a union-organizing campaign. The Linn Court acknowledged that debate about the federal policy encompassed in the NLRA "'should be uninhibited, robust, and wideopen, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks.'" Id. at 62 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Noting that state libel suits could obstruct this federal policy by inhibiting free debate during labor disputes, the Court adopted the actual malice standard articulated in New York Times Co. in order to determine whether libel published in the context of a labor dispute would be actionable. Linn, 383 U.S. at 63-65. Under this standard, a state remedy for libel in the context of a labor dispute is limited to cases in which the plaintiff can show the following: (1) that the defamatory statements "were circulated with malice" and (2) the statements caused harm beyond the defamation itself such as "injury to reputation, consequent mental suffering, alienation of associates, specific items of pecuniary loss, or whatever form of harm would be recognized by state tort law." Id. at 65. His retaliatory discharge was rejected because that applies on to at-will employees, and he was covered by a CBA The LMRA claim failed because that act covers labor management relations, and no of his allegations supported them See Wooddell v. Int'l Bhd. of Elec. Workers, Local 71, 502 U.S. 93, 98 (1991) (stating that "a suit properly brought under [Section] 301 must be a suit either for violation of a contract between an employer and a labor organization representing employees in an industry affecting commerce or for violation of a contract between such labor organizations"); cf. Crenshaw v. Allied Chemical Corp., 387 F. Supp. 594, 598 (E.D. Va. 1975) (holding that an employee can bring a suit for wrongful discharge under Section 301 of the LMRA if the employee is claiming that the union "breached its duty of fair representation by refusing to fairly, impartially, or honestly represent an employee's interests in a collective bargaining agreement dispute resolution proceeding"). None of Plaintiffs' claims include allegations that WTS breached its obligations under the CBA, nor do they claim that PACE failed to adequately represent Marvin's interests. We have already determined that all of Plaintiffs' claims were properly dismissed. As a result, we need not conclude that Plaintiffs' claims might also be preempted by Section 301 of the LMRA. Because his state law claims were held to be preempted by federal law, his wife's related claim of loss of consortium also failed. Employment contracts: covenant not to compete, trade secrets Controlling law. The covenant not to compete for a period of three years stated it was to go into effect upon termination, and the ruling of the trial judge that it was to as o the date of the judgment was erroneous. Because the three years had elapsed since her termination, the trial judge's ruling was no longer relevant and the appellate court made no further ruling on it. The records of her employer that she copied from the company system to her home computer were confidential information and trade secrets of he employer, taken in violation of NM's Uniform Trade Secrets Act, NMSA 1978, §§ 57-3A-1 through 7 (1989), and the damages award was affirmed. Rapid Temps, Inc. v. Lamon, 2008-NMCA-122, certiorari not applied for; 2008 N.M. App. LEXIS 92; Internet: http://www.supremecourt.nm.org/opinions/VIEW/08ca-122.html [enhanced lexis.com version]. FLSA: exemption, salary, hourly, frequent changes, summary judgment Controlling law. Which employees are in hourly status and entitled to overtime pay under the Fair Labor Standards Act, and which are in salaried status and not entitled to it? Salaried professional and certain other types of highly paid executives can be exempted by their employers from the overtime pay provision of the FLSA. However, if an employer treats an exempt employee like an hourly employee it may lose its exemption of that employee from the FLSA and have to pay overtime pay. Further, in certain instances it may lose its exemption for all other similarly classified employees. However, in this case only two of the pharmacists may have been treated sufficiently like hourly employees to be classified as hourly and entitled to overtime pay. Archuleta v. Wal-Mart Stores, Inc., No. 07-1065 (10th Cir., 10/6/08) U.S. App. LEXIS 21014; Internet: http://www.morelaw.com/verdicts/case.asp?n=07-1065&s=&d=37509; and also see the previously decided case of Archuleta v. Wal-Mart Stores, Inc., No. Nos. 03-1432 and 03-1473, and 03-1434 (10th Cir., 2008); 395 F.3d 1177; 2005 U.S. App. LEXIS 1567; 150 Lab. Cas. (CCH) P34,949; 10 Wage & Hour Cas. 2d (BNA) 481; Internet: http://ca10.washburnlaw.edu/cases/2005/02/03-1432.htm [enhanced lexis.com version] Judge Ebel succinctly and aptly summarized the case as follows: Although the Fair Labor Standards Act ("FLSA") generally requires an employer to pay its employees at a rate of one and one-half times their regular rate of pay for any time worked in excess of forty hours in a given workweek, it exempts from this requirement "executive, administrative or professional" employees. At issue here is whether full-time pharmacists working for Wal-Mart Stores, Inc. from 1993 through 1998 fell within this exemption. In arguing that they did not, Plaintiffs contend that, although Wal-Mart purported to pay its pharmacists as salaried professionals, it actually changed their salaries * * * so frequently that it treated them, in effect, as hourly non-exempt employees. Because Plaintiffs have presented sufficient evidence to establish a genuinely disputed issue of material fact as to two pharmacists, we REVERSE the district court's decision to grant Wal-Mart summary judgment on those two claims and REMAND to the district court for further proceedings. In all other respects, we AFFIRM Title VII: consensual sex, retaliation, opposition to action prohibited by Title VII Illustrative; not controlling law. Title VII's prohibition of retaliation against a person seeking protection of the act. The Seventh Circuit [our jurisdiction is the 10th Circuit] held that the complainant could not support a claim of retaliation because he did not have a "reasonable belief" that he had been sexually harassed by his supervisor - with whom he had been having consensual sex. Tate v. Executive Management Services, Inc., No. 07-2575 (7th Cir., 10/1008); 2008 U.S. App. LEXIS 21193 [enhanced lexis.com version]. FMLA: leave may extend probationary period Illustrative; not controlling law. The contract of an employee off of work on FMLA leave was not renewed because he failed to timely complete his performance improvement plan. The federal trial judge dismissed his case for the reason that he should not have been granted the FMLA leave because "no reasonable jury could find that he * * * stood in loco parentis in this situation." [Note: "loco parentis" means like a parent.] The appellate court reinstated his case because it believed that a jury might find him to have fit that capacity. Further, it analyzed his FMLA interference and retaliation claims and found issues of fact that precluded dismissal and required the case to be heard by a jury. Martin v. Brevard County Public Schools, No. 07-11196 (11th Cir., 9/30/08); 2008 U.S. App. LEXIS 20580; Internet: http://www.ca11.uscourts.gov/opinions/ops/200711196.pdf [enhanced lexis.com version]. Union: duty of fair representation, Albuquerque Police Department (APD), NM Public Employees Bargaining Act (NMPEBA), prohibited practice complaint (PPC), collective bargaining agreement (CBA) Controlling law, but essentially limited to the specific facts of this APD case. However, it is important to remember that a union has a legal duty of fair representation of its members, though that duty is breached only if it acts arbitrarily, fraudulently of in bad faith as to its members. Careful attention by an employer is important because if employees with a greivance are excluded from a union settlement, that could be found to be a basis for invalidating that agreement and reopening the entire dispute. Employers need to ensure that all possible aggrieving employees are accounted for and considered before entering into a such settlement. Granberry v. Albuquerque Police Officers' Assn., 2008-NMCA-094 [enhanced lexis.com version] Promotions of two sergeants to lieutenant were disputed by the union on allegations that the city had reinterpreted rules and regulation governing the promotion process. The union filed a PPC under the NMPEBA claiming that the CBA had been violated because two "ineligible" sergeants had been allowed to participate in the promotion process. Before the PPC hearing, the union and city settled the dispute involving four Anglo male sergeants. Granberry (African-American male over age 40) and Sanchez (Hispanic female) were for some reason excluded from the settlement. At this point, the issue was whether excluding that exclusion was (1) "arbitrary" or (2) "without a rational basis or explanation". - Arbitrary: The appellate court found that the issue of arbitrariness was inapplicable because the PPC in question was more like a complaint about promotion that needed to be pursued through the chain of command, which the two sergeants did. - Rational explanation: That left for jury trial the factual issue of whether the union had a rational explanation for the exclusion. FCRA: Fair Credit Reporting Act, what is a consumer report? Controlling law, but discuss this close decision with counsel before relying on it. In these cases involving distinctions only a lawyer could love, be very cautious. Communication of information from a former employer based solely on its firsthand experience with a former employee who is an applicant with another employer won't be considered a "consumer report" covered by FCRA, even if that "firsthand" experience involves third parties [Did we all follow that?]. Practical consideration: Check with legal counsel before proceeding so that y0u will have a clear understanding of what can and cannot be done. Owner-Operator Indep. Drivers Ass'n. v. USIS Commercial Servs., No. 06-1430 (10th Cir., 8/19/08); 537 F.3d 1184; 2008 U.S. App. LEXIS 17635; 28 I.E.R. Cas. (BNA) 1; Internet, The Public Library of Law: http://www.plol.org/Pages/Login.aspx?d=aRgOc0Kx0%2fTJu9TWj5%2bAGA%3d%3d&l=Cases [enhanced lexis.com version] To refresh our recollections, a "consumer report" is defined by FCRA as any communication bearing on a consumer's character, general reputation, personal characteristics, or mode of living used that would be used to establish eligibility for employment. Excluded by the act are "any report containing information solely as to transactions or experiences between the consumer and the person making the report", i.e., first-hand experiences. In this case, a trucking company's experience with a driver which might involve third parties did not mean they were not first-had experiences of the company, and thus not "consumer reports" covered by FCRA. Title VII; Civil Rights Act of 1866; Section 1981: racial discrimination, retaliation, proof required Controlling law. However, this case illustrates the error of a plaintiff's attorney proceeding under the wrong law and the employee loosing the case for lack of proof. Had the Plaintiff sued only under Title VII, she might have prevailed. Plaintiff's attorneys, curious defense attorneys and curious human resources practitioners may want to read the case, but no brief accompanies this note. Carney v. City & County of Denver, No. 1490, 534 F.3d 1269 (10th Cir., 7/2/408); Internet, The Public Library of Law, http://www.plol.org/Pages/Login.aspx?d=Uyd0YMM8glLR5V2TUQlbaw%3d%3d&l=Cases [enhanced lexis.com version]. ADA, ADEA: disability leave, discrimination, retaliation; summary judgment for employer affirmed Controlling law. The appellate court found no evidence that could reasonably link discriminatory conduct by past supervisors to the decision by recent supervisors to terminate the employee low ranking in current performance evaluations. Too much time had passed and supervisors had changed. There was no proof past that negative acts and attitudes of previous supervisors were known by the current supervisors, and the reason given by the current supervisors for termination in the reduction in force (RIF) was legitimate rather than a pretext. Goldstein v. Sprint Mgmt. Co., No. 06-3379 (10th Cir., 7/30/08); 2008 U.S. App. LEXIS 16271; 103 Fair Empl. Prac. Cas. (BNA) 1699; 20 Am. Disabilities Cas. (BNA) 1623; Internet: http://209.85.173.104/search?q=cache:QLzJ1z71MjgJ:ca10.washburnlaw.edu/cases/2008/07/06-3379.pdf+Goldstein+v.+Sprint+Mgmt.+Co.,+No.+06-3379&hl=en&ct=clnk&cd=1&gl=us [enhanced lexis.com version]. FMLA: 1250 hours, strictly enforced, importance of accurate documentation Illustrative; not controlling law. The statutory number of1250 hours was held to be absolute. A USPS employee with numerous attendance policy violations and "terminations" was denied FMLA eligibility because she had worked only 1248.8 hours in the preceding 12 months. The district court dismissed her claim, which was upheld on appeal. This was a close call because she had been ordered to clock out two hours early for alleged insubordination. She clocked out as ordered, but complained to the USPS Dispute Resolution Specialist that she had been wrongly accused. Though informed of her rights to file a formal grievance, she failed to do so within the required time. Because of accurate documentation by USPS of the times worked, the appellate court upheld her ineligibility for FMLA leave, small as the shortfall of hours worked turned out to be. Pirant v. U.S. Postal Service, No. 07-1055 (7th Cir., 9/4/08); 2008 U.S. App. LEXIS 18912; Internet, MoreLaw: http://www.morelaw.com/verdicts/case.asp?n=07-1055&s=IL&d=37125 [enhanced lexis.com version]. FMLA: computing 12 weeks; eligible period - "calendar year", "rolling year", "fiscal year", "carry over" Illustrative; not controlling law. How the 12 weeks is to be calculated and applied makes for difficult administrative decisions. Be sure to check with local New Mexico legal counsel about this case before acting upon it. Three major considerations for eligibility are "calendar year" "rolling year" or "fiscal year". Candace Davis's employer used the calendar year. [As usual, the full text of this appellate opinion can be retrieved through the citations or URL listed below.] Suffering from the serious medical condition of depression, that condition spanned calendar years, and the issue was whether her continuing condition carried over to the next year or if she had to accumulate another 1250 hours within a 12 month period before she could again qualify for FMLA leave. Her FMLA leave request was denied by her employer until she had accumulated another 1250 hours within a 12 month period, i.e., it contended it did not allow carry over. The Michigan federal trial court agreed with the employer, and the federal appellate court affirmed the ruling of the trial court. ]Read the explanation starting toward the bottom of page 4 of the PDF document.] Davis v. Michigan Bell Telephone Co., No. 07-1512 (6th Cir., 9/29/08); 2008 U.S. App. LEXIS 20438; 2008 FED App. 0353P (6th Cir.) [enhanced lexis.com version]. ADA: ADA Amendments Act of 2008 (ADAAA), lower standard of disability proof, broader and more liberal interpretation Download 5.55 Mb. Share with your friends:
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