firstname.lastname@example.org Updated on January 2, 2015 Staying current on legal developments is essential – I regularly check on human resources and employment law announcements and share them with colleagues.
This cumulative collection is free, butI no longer provide opinions because I have resigned my license to practice law. Thus, no legal opinions are either expressly or impliedly given here – that’s what your legal counsel is for.
New information is added on top of previous content and this collection tends to grow large:
This is a cumulative collection, which means past information remains below the recently added content, and past versions can be deleted.
Don’t print it – search it electronically e.g., search for key words with Ctrl+F, or other software (e.g., OneNote) search methods.
Toward the end of each calendar year I begin warning that much older information will be deleted from the end of the collection at the start of the new calendar year – either save the previous version under another filename, or contact me later for a copy.
Focus predominates on anti-discrimination laws, leave laws, National Labor Relations Board decisions, etc.Though I live in Albuquerque, New Mexico and the 10th Circuit, cases from many jurisdictions are included in this collection.
Recommended additional resources to check out:
Employment Law Information Network – excellent for articles, discussions, notices, recent cases and other valuable information: http://www.elinfonet.com/
Society for Human Resource Management: http://www.shrm.org/
M. Lee Smith: http://www.mleesmith.com/
Business Law Resources: http://www.blr.com/?source-MSN&effort=648
I try to be concise – bullet points, minimal legal jargon and litigation procedural details (litigators can check those by reading the full decision).
URL links usually are provided to
a court’s full decision for its reasoning, findings of fact, rulings, or other details litigators might find important, and
often to an informative or essential article about the case and related issues. Note: Links marked as “enhanced lexis.com version” (cases) or “annotated lexis.com version” (statutes) are available to lexis.com subscribers.
New information is added on top of previous content and this collection tends to grow large:
Don’t print it – search it electronically.
Toward the end of each calendar year I begin warning that older information will be deleted from the end of the collection at the start of the new calendar year – either save the previous version under another filename, or contact me later for a copy.
Laws can differ in various jurisdictions. Each case brief usually contains a jurisdiction designation in bold font (starting 1/31/12). Cases in your jurisdiction are almost always controlling law. However, cases outside of your jurisdiction are still helpful because the reasoning often provides illustrations of legal theories and practical guidance for matters not yet decided in your jurisdiction – often another jurisdiction will borrow that reasoning because the court found it persuasive (and fortunately for us in the field, this leads to considerable consistency among jurisdictions).
A map of the various federal appellate circuits is below, and this is the URL link http://www.uscourts.gov/court_locator.aspx for it and its helpful resources you can click on.
UNITED STATES FEDERAL APPELLATE CIRCUIT COURT JURISDICTIONS
CUMULATIVE CASE BRIEFS AND NOTES
ADA: avascular necrosis, accommodation refused, “major life activities have been substantially limited” – no expert medical evidence presented, McDonnell Douglas, summary judgment affirmed
Jurisdiction: Tenth Circuit Felkins v. City of Lakewood, No. 13-1415 (10th Cir,. 12/19/14); http://www.ca10.uscourts.gov/opinions/13/13-1415.pdf [enhanced lexis.com version].
Appellate court summary: Plaintiff Cynthia Felkins, formerly an emergency dispatcher for the City of Lakewood, Colorado, alleges that she suffers from a condition called avascular necrosis that qualifies as a disability under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101–12213 (2012), and that the City refused to accommodate that disability. She brought suit against the City under the Act, but the district court granted the City summary judgment. We exercise jurisdiction under 28 U. S.C. § 1291 and affirm. Ms. Felkins’s claim fails because she presented no expert medical evidence that any of her major life activities have been substantially limited by avascular necrosis.
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None of the medical evidence in the appellate record supports Ms. Felkins’s allegation that she has avascular necrosis or details the degree to which it affects her major life activities. After Ms. Felkins’s surgery, a physician assistant filled out an FMLA form stating that Ms. Felkins did not have a chronic condition. That same physician assistant later wrote a note stating only “Return to work full duty 1/7/09.” Id. at 37. There is no mention of avascular necrosis, much less a description of its effects on Ms. Felkins.
[Evidence: The essential elements of the McDonnell Douglas evidentiary framework are discussed at: http://en.wikipedia.org/wiki/McDonnell_Douglas_Corp._v._Green. Note that they are phrased differently for various different kinds of indirect discrimination.]
Disability: European Court of Justice, adverse employment action - dismissal, obesity – performance of work, “full and active participation in professional life” – “equal treatment in employment and occupation”
Jurisdiction: European Union Kaltoft v. Municipality of Billund, No. C-354/13 (17 Jul 13):
British and Irish Legal Information Institute citation at http://www.hrandemploymentlaw.com/hr-employment-immigration-dismissal-discrimination-settlement/Blog/2014/Obesity-may-amount-to-a-disability-within-the-Equality-Act-2010.
Yahoo New article at http://news.yahoo.com/eu-court-says-obesity-disability-131503005.html
Reed Smith law firm article at http://www.employmentlawwatch.com/tags/kaltoft-v-municipality-of-bill/.
Turbervilles Solicitors law firm article at http://www.hrandemploymentlaw.com/hr-employment-immigration-dismissal-discrimination-settlement/Blog/2014/Obesity-may-amount-to-a-disability-within-the-Equality-Act-2010.
This case is included for human resources and litigators practicing and/or working in the European Union. The obesity can be considered a "disability" if it hinders an overweight person's performance at work (i.e., the first element of the ADA test). However, I have underlined phrases that seems to imply remaining issues of being able to perform the essential functions of the position of the employment contract (i.e., what needs to be done rather than condition or status), reasonable accommodations, etc. (later elements of the ADA):
59. At the hearing, the representative of the employer was concerned that admitting obesity in any form as being a disability would lead to intolerable results because alcoholism and drug addiction could then, as serious illnesses, be covered by that notion. In my opinion this concern is misplaced. It is true that, in medical terms, alcoholism and addiction to psychotropic substances are diseases. This does not, however, mean that an employer would be required to tolerate an employee’s breach of his contractual obligations by reference to these diseases. For example, a dismissal because the employee comes to work intoxicated is not based on the disease of alcoholism or drug addiction as such, but is a breach of the employment contract which the employee could have avoided by abstaining from consuming alcohol or the substance in question. Any employer is entitled to expect such an employee to seek the medical treatment that is necessary for him to be able to properly perform his obligations under the contract of employment. It is worth recalling that Article 5 of Directive 2000/78 merely requires employers to provide ‘reasonable accommodation’ to persons with disabilities. ADA, Title VII: multiple sclerosis, not qualified, essential functions, accommodations – flexibility – numerous modifications, legitimate expectations, adverse employment action, retaliation, summary judgment dismissal affirmed
Jurisdiction: Seventh Circuit Taylor-Novotny v. Health Alliance Medical Plans, Inc., No. 13-3652 (7th Cir., 11/26/14) [enhanced lexis.com version]:
Ogletree Deakins law firm article at http://www.employmentlawmatters.net/2014/12/articles/ada/companys-work-from-home-policy-did-not-replace-essential-function-of-regular-predictable-attendance/.
Her employment was terminated because of numerous tardiness events. Regular, predictable attendance was an essential function of the position, and the company policy of allowing employees to work from home did not change that requirement. Summary judgment dismissal of her claim was affirmed.
Appellate court summary: Kiersten M. Taylor–Novotny brought this action against her former employer, Health Alliance Medical Plans, Inc. (“Health Alliance”), under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Family and Medical Leave Act (“FMLA”), 29 U .S.C. §§ 26012654, and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. Specifically, she contended that Health Alliance had failed to accommodate her multiple sclerosis as the ADA required, had discriminated and retaliated against her based on her disability, had interfered with her FMLA rights, and had discriminated against her based on her race. She also asserted a state law claim of intentional infliction of emotional distress. The district court granted summary judgment for Health Alliance on each of her claims.
We now affirm the district court's judgment. Ms. Taylor–Novotny cannot succeed on her ADA discrimination claim because she did not establish that she was disabled within the meaning of the ADA and because she was not meeting Health Alliance's legitimate expectations for punctuality and accountability. Her failure to meet Health Alliance's legitimate expectations also forecloses her race discrimination claim. She cannot succeed on her ADA failure-to-accommodate claim because she did not establish that the additional accommodation that she sought from Health Alliance was reasonable. Further, the evidence that she offers for her ADA retaliation claim is insufficient to form a convincing mosaic suggesting that Health Alliance retaliated against her because she sought accommodations for her multiple sclerosis. Finally, her FMLA interference claim must fail because Health Alliance never denied Ms. Taylor–Novotny FMLA leave.
ERISA: litigation, res judicata – prior suit by union, no jurisdiction, attorney fees – judicial discretion
Jurisdiction: Tenth Circuit Trustees of the Eighth District Electrical Pension Fund, et al., v. Wasatch Front Electrical and Construction, LLC, et al., No. 13-4093 (10th Cir., 12/22/14); http://www.ca10.uscourts.gov/opinions/13/13-4093.pdf [enhanced lexis.com version].
Appellate court summary: This appeal is brought by a union (International Brotherhood of Electrical Works, Local 354) and trustees of a pension fund (Eighth District Electrical Pension Fund). In district court, the union and trustees claimed that three electrical companies (Wasatch Front Electric and Construction, LLC; Larsen Electric of Nevada, LLC; and Larsen Electric, LLC) and one of their owners (Mr. Scott Larsen) had failed to make payments required under collective bargaining agreements and the Employee Retirement Income Security Act of 1974. The district court granted summary judgment to the electric companies and Mr. Larsen, holding that the claims were precluded by res judicata because of a prior suit brought by the union. The trustees and the union appealed the summary judgment ruling, but did so out of time. Thus, we lack jurisdiction over this part of the appeal.
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The district court also granted $134,078.90 in costs and attorneys’ fees to the electric companies and Mr. Larsen. The union and the trustees argue that the court should not have assessed any attorneys’ fees. The defendants concede the union’s challenge, but not the trustees’. We reject the trustees’ challenge, holding that the district court acted in its discretion to award fees.
NLRB: full-time adjunct faculty– limited extent of authority – not managers
Jurisdiction: All Pacific Lutheran University, 361 NLRB No. 157 (12/16/14) [enhanced lexis.com version]:
Fisher Phillips law firm article at http://www.laborlawyers.com/faculty-can-unionize-absent-actual-managerial-control-nlrb-decides.
Jackson Lewis law firm article at http://www.jacksonlewis.com/resources.php?NewsID=5038.
The 1980 case of NLRB v. Yeshiva University standard for who are managers was revised by the recent case on the ground that those faculty members did not exercise sufficient managerial authority on behalf of the university to be excluded as managerial employees.
NLRB: collective bargaining agreement (CBA), expedited dispute resolution – binding arbitration and grievance decisions – less deference
Babcock & Wilcox Construction Company, 361 NLRB No. 132 (12/15/14) [enhanced lexis.com version]:
Ogletree Deakins law firm articles at http://blog.ogletreedeakins.com/nlrb-eviscerates-standards-for-deferral-to-arbitration-and-settlement/?utm_source=rss&utm_medium=rss&utm_campaign=nlrb-eviscerates-standards-for-deferral-to-arbitration-and-settlement and http://blog.ogletreedeakins.com/nlrb-eviscerates-standards-for-deferral-to-arbitration-and-settlement/?utm_source=rss&utm_medium=rss&utm_campaign=nlrb-eviscerates-standards-for-deferral-to-arbitration-and-settlement#sthash.PU7dKBhB.dpuf.
Concerning § 7 rights, this decision weakens or lessens Board deference to arbitration decisions. This is a major change that needs to be studied in the articles and the decision.
NLRB: § 303 Labor Management Relations Act (L MRA) – 29 U .S.C. § 187 – secondary boycott, state law – trespass – nuisance, no federal preemption
Jurisdiction: Ninth Circuit, California Retail Property Trust v. United Brotherhood of Carpenters, No. No. 12-56427 (9th Cir., 9/23/14):
Littler Mendelson law firm article at http://www.littler.com/publication-press/publication/ninth-circuit-finds-state-trespass-and-nuisance-laws-not-preempted-sec.
State laws regarding nuisance and trespass were not preempted by the NLRA. At issue was whether the nature and extent of secondary boycott picketing exceed LRMA protection:
A store in the shopping mall was being renovated by non-union workers.
The shopping mall had "time, place and manner" demonstration restrictions and a permission process that the union did not use.
The alleged a union activity [quote from the opinion edited for readability]:
. . . on October 1, 2010, and continuing on several occasions that month, dozens of union members violated these rules when they, having not filled out an application:
came onto the Mall’s privately owned common areas in front of the Urban Outfitters construction site and started a disruptive protest by marching in a circle, yelling, chanting loudly in unison, blowing whistles, hitting and kicking the construction barricade (which created a large hole in the barricade), and hitting their picket signs against the Mall railings, which created an intimidating and disquieting environment that interfered with the Mall’s and its tenants’ normal operation of business.
The Mall alleged that union members also cat-called and made sexually provocative gestures toward female patrons and,
at one point, “ moved their protesting activities in front of two other tenant stores, neither of which had any relationship to Urban Outfitters or its contractor.”
Appellate court summary:
In this case we must decide whether § 303 of the Labor Management Relations Act (“LMRA”), codified at 29 U .S.C. § 187, preempts state-law claims for trespass and private nuisance related to union conduct that may also constitute secondary boycott activity. Following the reasoning of Local 20, Teamsters, Chauffeurs & Helpers Union v. Morton, 377 U.S. 2 52 (1964), Lodge 76, Int’l Ass’n of Machinists and Aerospace Workers, AFL-CIO v. Wis. Empl. Relations Comm’n, 427 U.S. 132 (1976), and Sears, Roebuck & Co. v. San Diego Cnty. Dist. Council o f Carpenters , 436 U.S. 180 ( 1 9 7 8), we hold that federal law does not so thoroughly occupy the field that it always preempts such claims, nor does it conflict with the state law claims presented here. Where, as in this case, state claims of trespass and nuisance “touch[ ] interests deeply rooted in local feeling and responsibility, ” Belknap, Inc. v. Hale, 463 U.S. 491, 498 (1983), and the plaintiff seeks only to enforce time, place, and manner restrictions against union protesters, “we are unwilling to presume that Congress intended . . . to deprive the California courts of jurisdiction to entertain [the nuisance and] trespass action[s].” Sears, 436 U.S. at 207. We reverse the district court’s grant of the defendants’ motion to dismiss and remand the case to the district court for consideration of the state-law claims of trespass and nuisance against the defendants.
Title VII: adverse employment action, retaliation, misconduct, state administrative findings, McDonnell Douglas – no pretext shown, summary judgment dismissal affirmed
Jurisdiction: Tenth Circuit The Estate of Carlos Bassatt, et al., v. School District No. 1 in the City and County Of Denver, et al., No. 13-1244 (10th Cir., 12/31/14); http://www.ca10.uscourts.gov/opinions/13/13-1244.pdf [enhanced lexis.com version].
This case provides a good review of administrative law, the McDonnell Douglas evidentiary framework, and the interrelation of state and federal court precedents.
Whistleblower, False Claims Act:
FCA: fraud – 31 U.S.C. §3729(a)(1)(A), “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval”, bounty hunter, retaliation
Civil Procedure: fraud – FRCP 9(b) – plead with particularity
Jurisdiction: Seventh Circuit United States, et al., ex rel. Grenadyor v. Ukranian Village Pharmacy, No. 13-3383 (7th Cir., 12/3/14) [enhanced lexis.com version]:
CCH link at http://hr.cch.com/hld/GrenadyorvUkrainianVillagePharmacy.pdf.
Littler Mendelson law firm articles at http://www.littler.com/healthcare-employment-counsel/7th-circuit-confirms-dismissal-pharmacy-kickback-suit-allows-whistlebl and http://www.littler.com/healthcare-employment-counsel/7th-circuit-confirms-dismissal-pharmacy-kickback-suit-allows-whistlebl#sthash.a8YubPjE.dpuf.
This case involves two issues:
The FCA involves fraudulent conduct, and FRCP 9(b) requires that certain very serious claims such as that be pleaded with particularity, i.e., be quite specific or risk dismissal. Dismissal by the trial court was affirmed.
The remaining claims not requiring the same level of detail will proceed to trial.
ADA: adverse employment action – termination – contract nonrenewal, McDonnell Douglas – no pretext shown, retaliation, summary judgment affirmed
Jurisdiction: First Circuit Collazo-Rosado v. University of Puerto Rico, No. 13-1641 (1st Cir., 9/2/14) [enhanced lexis.com version]:
Ogletree Deakins law firm articles at http://blog.ogletreedeakins.com/worker-failed-to-show-pretext-following-contract-nonrenewal/?utm_source=rss&utm_medium=rss&utm_campaign=worker-failed-to-show-pretext-following-contract-nonrenewal and http://blog.ogletreedeakins.com/worker-failed-to-show-pretext-following-contract-nonrenewal/?utm_source=rss&utm_medium=rss&utm_campaign=worker-failed-to-show-pretext-following-contract-nonrenewal#sthash.Cyy3YbyH.dpufat.
The employer had a legitimate, non-discriminatory reason for not renewing her contract – deficient performance tardiness, as stated in detail in the opinion. Pretext is one of the essential elements of the McDonnell Douglas evidentiary framework: http://en.wikipedia.org/wiki/McDonnell_Douglas_Corp._v._Green.
Appellate court summary: We deal here with a suit by María J. Collazo–Rosado (“Collazo”) against the University of Puerto Rico (“UPR”) and Marisol Gómez–Mouakad (“Gómez”)—Collazo's former employer and supervisor, respectively. A Crohn's-disease sufferer (Crohn's is a chronic inflammatory disease of the intestine), Collazo contends that the defendants did not renew her employment contract in retaliation for her complaining about disability-discrimination—an action that, she says, infracted 42 U.S.C. § 12203(a), which is the anti-retaliation provision of the Americans with Disabilities Act (“ADA”). She also contends that Gómez's conduct constituted First–Amendment retaliation under 42 U.S.C. § 1983. But on summary judgment, the district court rejected these claims as a matter of law.
CAFA: litigation, pleading, removal – 28 U. S. C. §1446(a) – amount in controversy – plausible allegation
Jurisdiction: All, [Tenth Circuit] Dart Cherokee Basin Operating Co., LLC v. Owens, No. 13–719, USSC, 12/15/14) [enhanced lexis.com version]:
Ogletree Deakins law firm article at http://blog.ogletreedeakins.com/scotus-rules-cafa-removal-notices-need-contain-only-a-plausible-allegation-that-amount-in-controversy-is-satisfied/?utm_source=rss&utm_medium=rss&utm_campaign=scotus-rules-cafa-removal-notices-need-contain-only-a-plausible-allegation-that-amount-in-controversy-is-satisfied#sthash.nuFrAQ9k.dpuf.
Syllabus: A defendant seeking to remove a case from state to federal court must file in the federal forum a notice of removal “containing a short and plain statement of the grounds for removal.” 28 U. S. C. §1446(a). Respondent Owens filed a putative class action in Kansas state court, seeking compensation for damages class members allegedly sustained when petitioners (collectively, Dart) underpaid royalties due under certain oil and gas leases. Dart removed the case to the Federal District Court, invoking the Class Action Fairness Act of 2005 (CAFA), which gives federal courts jurisdiction over class actions if the amount in controversy exceeds $5 million, 28 U. S. C. §1332(d)(2). Dart’s notice of removal alleged that the purported underpayments totaled over $8.2 million. Owens moved to remand the case to state court, asserting that the removal notice was “deficient as a matter of law” because it included “no evidence” proving that the amount in controversy exceeded $5 million. In response, Dart submitted an executive’s detailed declaration supporting an amount in controversy in excess of $11 million. The District Court granted Owens’ remand motion, reading Tenth Circuit precedent to require proof of the amount in controversy in the notice of removal itself. Dart petitioned the Tenth Circuit for permission to appeal, see §1453(c)(1), but that court denied review and rehearing en banc.
ERISA: short-term benefits denied, Quality Review Unit (QRU) – standard of review, pro se, summary judgment affirmed