Human resources & employment law cumulative case briefs
Jurisdiction: 9th Circuit
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Jurisdiction: 9th Circuit Rodriguez v. AT&T Mobility Services, L.L.C., No. 13-56149 (9th Cir., 8/23/13); http://cdn.ca9.uscourts.gov/datastore/opinions/2013/08/27/13-56149.pdf; http://www.morelaw.com/verdicts/case.asp?s=CA&d=62358 [enhanced lexis.com version]. This case makes class actions easier to certify in the 9th Circuit. Summary by the appellate court: The panel vacated the district court’s order remanding to state court a putative class action, which had been removed to federal district court by the defendant under the Class Action Fairness Act. The panel held that the lead plaintiff’s waiver of any claim in excess of the $5 million amount-in-controversy requirement of 28 U.S.C. § 1332(d)(2) was ineffective, and the waiver no longer had legal effect. The panel held that Lowdermilk v. U.S. Bank Nat’l As’n, 479 F.3d 994, 999 (9th Cir. 2007) (imposing on defendants the burden to prove the amount-in-controversy to a “legal certainty”), was effectively overruled by the Supreme Court’s holding in Standard Fire Ins. Co. v. Knowles, 133 S.Ct.1345 (2013), and that the proper burden of proof imposed upon a defendant to establish the amount-in-controversy is the preponderance of the evidence standard. Because the district court’s remand order relied solely on the waiver, the panel remanded to the district court for consideration and application of the preponderance standard to the amount-in-controversy evidence. ERISA: attorney fees – “some degree of success on the merits” – no clear winner, settlement, Hardt v. Reliance Std, Life Ins. Co., Jurisdiction: 2nd Circuit Scarangella v. Group Health, Inc., 12-2750-cv (2nd Cir., 9/10/13); http://www.ca2.uscourts.gov/decisions/isysquery/4a97412a-93fd-4ea9-9490-438f9558efdc/1/doc/12-2750_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/4a97412a-93fd-4ea9-9490-438f9558efdc/1/hilite/ [enhanced lexis.com version]. In order to be eligible for an award of attorney fees a party must show “some degree of success on the merits”. If there is no clear winner, then the factors in this case need to be studied for guidance. Summary by the appellate court: Appellant Village Fuel appeals the district court’s denial of attorney’s fees in this ERISA action. The district court held that Village Fuel was ineligible for attorney’s fees because it “was not the ‘prevailing party,’ and . . . it did not obtain any success on the merits.” Although the district court appeared to rely upon the Supreme Court’s standard for determining eligibility for an award of attorney’s fees, as set out in Hardt v. Reliance Std. Life Ins. Co. , 130 S. Ct. 2149 (2010), it erred in interpreting that standard and applying it in this case. As a result, we vacate the court’s decision and remand for the district court to apply the appropriate standard and to exercise its discretion in determining to what extent, if any, Village Fuel is entitled to an award of reasonable attorney’s fees. Litigation:
Jurisdiction: 10th Circuit Hunt v. Riverside Transportation, Inc., No. 13-3100 (10th Cir., 9/5/13); http://www.ca10.uscourts.gov/opinions/13/13-3100.pdf [enhanced lexis.com version]. Conclusion by the appellate court: We have reviewed the briefs, the record, and the applicable law. The district court accurately analyzed the issues and we agree with its analysis. We therefore affirm the judgment of the district court for substantially the same reasons explained in the district court’s memorandum and order dated April 11, 2013. Litigation: evidence – legal hold order, failure to preserve, sanctions Jurisdiction: U.S.D.C.N.Y. In re Pfizer, Inc. Sec. Litig., 288 F.R.D. 297 (S.D.N.Y. Jan. 8, 2013). Informative article on preservation of evidence, legal hold orders, etc. - http://www.delawareemploymentlawblog.com/2013/09/employer-failure-to-preserve-employee-social-media-evidence.html. Fortunately, most of the evidence subject to the legal hold order was available elsewhere in the employer’s system, so there were no sanctions for negligently failing to comply with the order. The problem was that the metadata, i.e., underlying records information might have been different. Metadata is important because it contains information on when items were created, how often accessed, any changes, etc. [Wikipedia - http://en.wikipedia.org/wiki/Legal_hold.] Timing: Missouri Human Rights Act, adverse employment action, retaliation, untimely claims, right-to-sue letter Jurisdiction: Missouri Farrow v. St. Francis Medical Center, No. SC 92793 (MO, 8/27/13);
When must an employer raise the defense of untimely filing or statute of limitations? This is a complex case that Missouri practitioners need to study because the decision fundamentally changes the law on when the issue of timeliness should be raised. Title VII: gender, unwelcome sexual advances, harassment, hostile work environment – “severe or pervasive”, equal opportunity harasser, particular target group, “culture of revenge”; summary judgment dismissal Jurisdiction: 3rd Circuit Clayton v. City of Atlantic City, No. 12-4273 (3d Cir. Sept. 12, 2013); http://www2.ca3.uscourts.gov/opinarch/124273np.pdf [enhanced lexis.com version]. Summary judgment for employer. The female employee primarily relied on a “culture of revenge”. The rationale for dismissal was that an attitude of “revenge” is not unlawful if it is equally applied without regard to race, religion, gender, etc. Her claimed failed because there was no gender discrimination because males and females alike were subject to the punishments of dissatisfied supervisors. Arbitration: compel, collective bargaining agreement (CBA), grievances Jurisdiction: 10th Circuit Society of Professional Engineering Employees In Aerospace, LOCAL 2001, et al., v. Spirit Aerosystems, Inc. (10th Cir., 9/17/13); http://www.ca10.uscourts.gov/opinions/12/12-3345.pdf [enhanced lexis.com version]. Summary by the appellate court: Spirit Aerosystems, Inc. entered into collective-bargaining agreements with the Society of Professional Engineering Employees in Aerospace, Local 2001. The agreements allow represented employees to file grievances with Spirit and to compel arbitration if they are dissatisfied with the way that the company responded to such grievances. The union can file union-wide grievances and compel arbitration if the matter involves lockouts. The problem here is that the union filed grievances that did not involve lockouts. Instead, the grievances related to Spirit’s processes for evaluating employee performance. Dissatisfied with Spirit’s responses to the grievances, the union sued in federal district court to compel arbitration. On cross-motions for summary judgment, the court held as a matter of law that the dispute was not arbitrable. Concluding that the district court properly refused to compel arbitration, we affirm. Unemployment compensation:
Jurisdiction: New Mexico Naravaez v. New Mexico Department of Workforce Solutions, et al. (NMCA, 9/18/13), Certiorari Denied, June 19, 2013, No. 34,169; 2013-NMCA-079; http://www.nmbar.org/Attorneys/lawpubs/BB/bb2013/BB091813.pdf#page=28 [enhanced lexis.com version]; 52 SBB 38 at 20. Summary by the appellate court: {1} The Department of Workforce Solutions (the Department) granted Petitioner Robert Narvaez unemployment benefits for thirteen months before disqualifying him from benefits and requiring that he repay the benefits because his misconduct caused his employment separation. We reverse the district court’s order upholding the Department’s action because the Department did not proceed in accordance with the Unemployment Compensation Law, NMSA 1978, §§ 51-1-1 to - 59 (1982, as amended through 2012) and the Department’s regulations. FMLA: leave, return, equivalent position, definition, factors Jurisdiction: Circuit Crawford v. JP Morgan Chase & Company, No. 12-3698 (6th Cir., 8/7/13); http://www.ca6.uscourts.gov/opinions.pdf/13a0720n-06.pdf [enhanced lexis.com version]. What is an “equivalent position”? The regulations define it as . . . . . . one that is virtually identical to the employee's former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. The Merriam-Webster online dictionary defines:
Thus as a practical matter, about as reasonably close as what one had previously so that a reasonable person would not to feel discriminated against. This case analyzes a number of factors to consider when dealing with the matter of an “equivalent position”. Though the appellate court did not recommend full-text publication, any time persuasive reasoning such as this comes along it’s a valuable resource to study. [Note: This analysis might also provide helpful considerations when dealing with “reasonable accommodation” under the ADA.] ADEA: corporate reorganization, reduction in force, adverse employment action, “old and ugly”, attempted settlement, higher award, $$$, summary judgment Jurisdiction: 10th Circuit, District Court, Tulsa EEOC v. Kanbar Property Management LLC, No.: 12-CV- 00422-JED-TLW (U.S.D.C.N.D.OK):
This case is almost a possible contender for a Darwin Award. Arbitration:
Jurisdiction: New Mexico Strausberg v. Laurel Healthcare Providers, LLC, et al., No. 33,331 (NMSC, 6/27/13); http://www.nmbar.org/Attorneys/lawpubs/BB/bb2013/BB090413.pdf#page=27; 2013-NMSC-032; 52 SBB 36, at 27 (9/4/13) [enhanced lexis.com version]. Summary by the court: {1}In this case we address which party has the burden to prove that a contract is unconscionable and, therefore, unenforceable. Plaintiff Nina Strausberg signed an arbitration agreement as a mandatory condition of her admission to the Arbor Brook Healthcare nursing home. Despite having signed the arbitration agreement, Plaintiff subsequently sued Arbor Brook and several other defendants for alleged negligent care. Defendants moved the district court to compel arbitration and to dismiss Plaintiff’s case. In response, Plaintiff argued that the arbitration agreement was unconscionable. The district court found that Plaintiff had failed to prove unconscionability and, therefore, granted Defendants’ motion to compel arbitration. Rehabilitation Act: § 503, new regulations – 41 CFR Part 60-741, OFCCP, affirmative action Changes:
Effective date is 180 days from the 8/27/13 publication date. Wage and Hour: back pay, undocumented workers NLRA: protected activity, adverse employment action, Hoffman Plastic Compounds, Inc. Jurisdiction: 2nd Circuit Palma v. NLRB, No. 12-1199 (2d Cir. July 10, 2013); http://www.ca2.uscourts.gov/decisions/isysquery/873ee913-07d9-487d-b238-1d938b993679/1/doc/12-1199_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/873ee913-07d9-487d-b238-1d938b993679/1/hilite/ [enhanced lexis.com version]. Ogletree Deakins article at http://www.ogletreedeakins.com/publications/2013-08-30/nlrb-did-not-err-categorically-barring-nlra-back-pay-undocumented-workers-se#sthash.sNeMEjDU.dpuf. The Hoffman U.S. Supreme Court case precludes back pay to undocumented workers because that would contravene other federal laws. However, the appellate court remanded [returned] the case to the NLRB to determine the issue of reinstatement if there was proper documentation FLSA: litigation, overtime claims, pleading requirements, Twombly/Iqbal challenges NYLL: New York Labor Law Jurisdiction: 2nd Circuit Three cases:
Essentially, FLSA claims for unpaid overtime must plead sufficient factual detail – at least 40 hours of work in a given workweek and some uncompensated time in excess of the 40 hours. Title VII: discrimination
Jurisdiction: 10th Circuit This case involving a threatening employee isn’t a typical Title VII case, so it isn’t briefed. However, it is interesting background information. He was litigating pro se (i.e., representing himself), so perhaps no attorney wanted to be involved. The case name might provide some insight into the court’s view of the matter. Basically, no “reasonable jury could find that ARAMARK’s stated reasons for Keeler’s termination were mere pretext for a retaliatory motive” nor was there any evidence of defamation. Quincey Gerald Keeler, a/k/a Jerry, v. ARAMARK, No. 13-3117 (10th Cir., 8/21/13); http://www.ca10.uscourts.gov/opinions/13/13-3117.pdf [enhanced lexis.com version]. Summary by the appellate court: Jerry Keeler felt that his employer, ARAMARK, didn’t appreciate his performance as a food service worker. ARAMARK never made Mr. Keeler employee of the month, nor did it allow him to work the overtime hours he thought he deserved. Taking matters into his own hands, Mr. Keeler delivered a series of threatening letters to his higher-ups. One letter claimed it would be their “final warning” and another promised that someone would “start a riot . . . if [Mr. Keeler] suffered and died from a diabetic attack cause of stress.” At the same time, Mr. Keeler also filed charges with the Kansas Human Rights Commission (KHRC) and the EEOC, but by that point ARAMARK had already launched an investigation into Mr. Keeler’s allegations and learned — that far from being the victim of discrimination — Mr. Keeler actually intimidated many of his coworkers with his behavior. All this convinced ARAMARK that the proper course was to end Mr. Keeler’s employment. Mining: Mine Safety and Health Act (MSHA), Federal Mine Safety and Health Review Commission, safety, protection, administrative agency law, request for records, refusal, fines, scope, limitations Jurisdiction: 7th Circuit Big Ridge vs. Federal Mine Safety and Health Review Commission, Nos. 12–2316, 12–2460 (7th Cir. 4/26/13) ;
Though this case involves mines and mining, it provides a valuable general illustration of the scope of administrative agency requests for records. How broad or how limited can they be? An agency must be able to perform its assigned duties and be allowed to investigate the industry it administers, but it ought not to be allowed to conduct “fishing expeditions” – using a dragnet in hopes of finding violations. Summary by the appellate court: Under the Federal Mine Safety & Health Act of 1977 (“the Mine Safety Act”), the Secretary of Labor is charged with protecting the health and safety of the nation's miners, acting through The Honorable John J. Tharp of the Northern District of Illinois, sitting by designation. the Federal Mine Safety and Health Administration (“MSHA”). Regulations issued under the Mine Safety Act require mine operators to report to MSHA all mine-related injuries and illnesses suffered by mine employees. In October 2010, MSHA acted on a new and broader interpretation of existing regulations. It informed thirty-nine mine operators that, in addition to providing the injury and illness reports, they would be required to permit an MSHA inspector to review employee medical and personnel records during their next inspections. Reviewing employee medical and personnel records would enable MSHA to verify that the mines have not been under-reporting miners' injuries and illnesses. * * * We agree with the Commission that MSHA acted within its statutory and constitutional authority both in demanding information that would permit MSHA to verify the accuracy of mine operators' injury reports and in issuing citations and monetary penalties when mine operators refused to comply. We deny this petition for review of the judgment of the Commission. OSHA: impute liability to employer, burden of proof, insufficient evidence Jurisdiction: 11th Circuit ComTran Group v. U.S. Dep’t of Labor, No. 12-10275 (11th Cir. Jul. 24, 2013); http://www.ca11.uscourts.gov/opinions/ops/201210275.pdf [enhanced lexis.com version]. Liability for an OSHA cannot be imputed to an employer merely on its supervisor’s knowledge of his own misconduct. The burden of proof is on the Secretary of Labor (DOL) to prove knowledge by the employer of the misconduct. Question: What about the longstanding evidentiary theory of “knew of should have known” – might another court decide to add “should have known”? Let’s stay alert for that possibility. Summary by the court: ComTran Group , Inc. (“ComTran”) , petitions for review of a final decision of the Occupational Safety and Health Review Commission ( “Commission”). The Commission held that ComTran violated standards under the Occupational Safety and Health Act (“OSHA” or the “Act” ), 29 U.S.C. § § 65 1 et seq., when one of its supervisors was caught digging in a six-feet deep trench with an unprotected five-feet high “spoil pile” at the edge of the excavation. This appeal presents an issue of first impression in our circuit: Is it appropriate to impute a supervisor’s knowledge of his own violative conduct to his employer under the Act , thereby relieving the Secretary of Labor (“Secretary”) of her burden to prove the “knowledge” element of her prima facie case? Upon close review of the record , briefs, and case law from other circuits, and with the benefit of oral argument, we answer that question in the negative. Therefore, we grant the petition, reverse the Commission’s decision, and remand this case for further consideration. Leave: California Leave Law Expanded to Cover Emergency Rescue Personnel and Reserve Peace Officers Jackson Lewis article at http://www.jacksonlewis.com/resources.php?NewsID=4582 on new legislation expanding leave rights NM Human Rights Act: professional photographer, same-sex ceremony, service refused, religious freedom Jurisdiction: New Mexico Elane Photography, LLC, v. Willock, No. SC33,687 (NMSC, 8/22/13); 2013-NMSC-___ http://www.nmcompcomm.us/nmcases/nmsc/slips/SC33,687.pdf [enhanced lexis.com version]. In this public services case, a professional photographer refused based on religious beliefs to photograph a same-sex commitment ceremony. The NM Supreme court held that refusal violated the NMHRA, and the refusal was not protected by the NMRFRA. Summary and holdings by the court [edited slightly for readability]: {1} By enacting the New Mexico Human Rights Act (NMHRA), NMSA 1978, §§ 28-1-1 to -13 (1969, as amended through 2007), the Legislature has made the policy decision to prohibit public accommodations from discriminating against people based on their sexual orientation. Elane Photography, which does not contest its public accommodation status under the NMHRA, offers wedding photography services to the general public and posts its photographs on a password-protected website for its customers. In this case, Elane Photography refused to photograph a commitment ceremony between two women. The questions presented are (1) whether Elane Photography violated the NMHRA when it refused to photograph the commitment ceremony, and if so, (2) whether this application of the NMHRA violates either the Free Speech or the Free Exercise Clause of the First Amendment to the United States Constitution, or (3) whether this application violates the New Mexico Religious Freedom Restoration Act (NMRFRA), NMSA 1978, §§ 28-22-1 to -5 (2000). {2} First, we conclude that a commercial photography business that offers its services to the public, thereby increasing its visibility to potential clients, is subject to the antidiscrimination provisions of the NMHRA and must serve same-sex couples on the same basis that it serves opposite-sex couples. Therefore, when Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races. {3} Second, we conclude that the NMHRA does not violate free speech guarantees Willock referred to the event as a “commitment ceremony” in her e-mail to Elane Photography. However, the parties agree that the ceremony was essentially a wedding—Elane Photography emphasizes that there were vows, rings, a minister, flower girls, and a wedding dress, and Willock uses the word “wedding” to describe the ceremony in her brief. We use the terms “wedding” and “commitment ceremony” interchangeably because the NMHRA does not compel Elane Photography to either speak a government-mandated message or to publish the speech of another. The purpose of the NMHRA is to ensure that businesses offering services to the general public do not discriminate against protected classes of people, and the United States Supreme Court has made it clear that the First Amendment permits such regulation by states. Businesses that choose to be public accommodations must comply with the NMHRA, although such businesses retain their First Amendment rights to express their religious or political beliefs. They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws. We also hold that the NMHRA is a neutral law of general applicability, and as such, it does not violate the Free Exercise Clause of the First Amendment. {4} Finally, we hold that the NMRFRA is in applicable in this case because the government is not a party. For these reasons , we affirm the judgment of the Court of Appeals. * * * [Question: Though this is a services case rather than an employment case, how might the reasoning apply if an employee were to have objections to providing service to a third party, as in contraception cases? Hobby Lobby Stores. Inc., et al., v. Kathleen Sebelius, in her official capacity as Secretary of the United States Department of Health and Human Services, et al., No. 12-6294 (10th Cir.,, 6/27/13); http://www.ca10.uscourts.gov/opinions/12/12-6294.pdf [enhanced lexis.com version] Let’s stay alert for that possibility.] FMLA: termination, legitimate business reason, positive performance reviews, subsequently discovered misconduct, adverse employment action, timing Download 5.55 Mb. Share with your friends:
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