Latest Labor and Employment Cases for April 30, 2018

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The following are summaries of the latest court and National Labor Relations Board rulings involving labor law, wage and hour, discrimination, disabilities and individual employment rights, prepared by Bloomberg Law legal editors.

LABOR

Picketing

Taxicab drivers fired for participating in a wildcat strike to protest a new labor contract were properly denied unemployment benefits under a Nevada law that disqualifies individuals fired for misconduct from receiving such benefits. The employees showed great disregard for their employers’ interests by leaving work early, failing to report, and picketing. However, provisions of Nevada law denying benefits to individuals unemployed due to an active labor dispute don’t apply to the drivers because they’d been fired, and firing breaks the employee-employer relationship (Abate v. Ace Cab, Inc., 2018 BL 151291, Nev., 68849, 4/27/18).

Labor Unions

The former president of a transportation local union isn’t entitled to an initial order barring the international union from holding an election for local officers. While the election would dissolve the trusteeship, it would not make the former president’s challenge to its imposition meaningless, and his claimed inability to obtain employment arises not because he was removed from union office but because he abandoned his job (Mendoza v. Transit Union Local 1637, 2018 BL 151317, D. Nev., 2:17-CV-2485 JCM (CWH), 4/27/18).

NLRB

Refusal to Bargain

Manhattan College unlawfully refused to recognize and bargain with a union that was certified as the exclusive representative of a unit of part-time adjunct faculty. The college argued that the NLRB lacks jurisdiction over it as a religiously-affiliated university, but all representation issues raised were or could have been litigated in the prior representation proceeding, and the employer doesn’t offer any newly discovered and previously unavailable evidence or allege special circumstances that would require the board to take another look at the decision to certify the union (Manhattan College, 2018 BL 149662, N.L.R.B., 02-CA-201623, 4/27/18).

WAGE & HOUR

FMLA Retaliation

A police officer for Oak Park, Illinois can’t show that the city violated the Family and Medical Leave Act by initially classifying a period of leave pending his psychiatric evaluation as sick leave, rather than administrative leave, because the city eventually agreed to credit back his sick leave for that period, and the initial misclassification wasn’t done in bad faith (Freelain v. Village of Oak Park, 2018 BL 151736, 7th Cir., 16-4074, 4/30/18).

Appointment of Counsel

A home health care provider didn’t show that an attorney should be appointed to present her claim for over $52,000 in unpaid wages, although she says that the two law firms she contacted failed to return her calls, given that she didn’t provide enough details in her complaint for a determination of whether her claim has merit (Vaduva v. Walker, 2018 BL 150571, W.D. Wash., No. C18-0512 RSM, 4/27/18).

Settlement Agreements

A Maryland restaurant can settle a waitress’s federal and state minimum wage and overtime claims for a total of $35,000, with $19,500 of that amount earmarked for her wage-based claims and liquidated damages and the remainder for attorneys’ fees and costs. Given that the restaurant would have likely filed for bankruptcy had the waitress won at trial, a settlement that gives her 44.1 percent of the unpaid wages she sought was reasonable and fairly compensates her for her general release (Rivera v. Kantutas Rest., LLC, 2018 BL 150128, D. Md., No. PWG-17-642, 4/27/18).

Settlement Agreements

A Pennsylvania charter school and a janitor may settle his unpaid overtime claim for nearly $35,000. The settlement amount is fair because the school and the janitor based it on his time sheets, and it also includes an extra punitive award that he may not have been able to receive from a jury trial (Mitchell v. People ex rel. People Charter Sch., Inc., 2018 BL 149835, E.D. Pa., 17-2416, 4/27/18).

Collective Certification

An oilfield services company worker can go ahead with his collective action claiming that field personnel were misclassified as overtime-exempt salaried employees, because five co-workers’ claims that their work involved manual and technical labor without any supervisory duties were enough to establish a class and the differences in job titles don’t mean that they can’t all claim that they worked 80-hour weeks without extra pay (Olivas v. C & S Oilfield Servs., LLC, 2018 BL 149671, D.N.M., No. CIV 17-0022 JB\CG, 4/27/18).

Overtime

Employees of the city of San Diego gave enough information to support their claim that the city underpaid overtime by failing to include certain amounts in their base pay. They didn’t need to explain why they weren’t exempt from overtime requirements because the city paid them overtime, and they aren’t required at this stage to specify instances when they were underpaid (Mitchell v. City of San Diego, 2018 BL 150530, S.D. Cal., 17-cv-2014-BAS-AGS, 4/27/18).

Abstention

A Louisiana warehouse worker’s state court lawsuit seeking accrued vacation pay doesn’t stop his federal action seeking unpaid overtime that he filed three weeks later, because the Colorado River abstention doctrine saying that federal courts shouldn’t hear a case when there’s a parallel case in state court doesn’t apply given that the two lawsuits address entirely distinct legal issues and his potential win in state court will have no impact on his federal action (Lysne v. La. Windows & Doors LLC, 2018 BL 149602, M.D. La., No. 17-01612-BAJ-RLB, 4/27/18).

Overtime Exemption

Engineers for an oil-and-gas drill bits manufacturer didn’t lose their overtime exemption as salaried employees when the company imposed an every-other-Friday furlough with a resulting 10 percent reduction in pay, given that the furlough was due to an economic downturn in the oil industry with the company’s revenue dropping 80 percent and the engineers kept their ability to choose their work hours according to the amount of work (Kitagawa v. Drilformance, LLC, 2018 BL 151276, S.D. Tex., H-17-726, 4/27/18).

Overtime Exemption

Staff at nonprofit group homes for developmentally disabled adults in Maine showed that their sleep time should have been considered compensable work time for purposes of their collective action seeking unpaid overtime, given that the agency’s system of designating a shift as one week on, one week off from Thursday to Thursday while computing payroll from Sunday to Sunday made it ineligible for sleep-time exemption under federal regulations (Giguere v. Port Res., 2018 BL 151039, D. Me., No. 2:16-cv-58-NT, 4/27/18).

FMLA Damages

A trial court improperly dismissed a Las Vegas city employee’s Family and Medical Leave Act claim, because it didn’t determine whether she purposefully failed to explain her computation of the amount she claimed she was owed due to the city’s supposed violation (Tablizo v. City of Las Vegas, 2018 BL 149844, 9th Cir., 17-15520, unpublished 4/27/18).

FMLA Evidence

A former Life Care Centers of America employee may obtain the personnel files of supervisors who were involved in her firing for purposes of her claim that she was fired in retaliation for using Family and Medical Leave Act leave. She showed the files are relevant to her claim because she said that the supervisors approved her firing, and consulted with each other regarding her leave (Hall v. Life Care Ctrs. of Am., Inc., 2018 BL 149912, D. Kan., 16-2729-JTM-KGG, 4/27/18).

FMLA Pleading

A former medical coder for a Florida healthcare company gave sufficient information to notify the company of her Family and Medical Leave Act retaliation and interference claims, because she explained that her supervisors were aware of her request for leave, and that the company subsequently changed her job status, and those facts support both her claims (Terry v. Interim Healthcare Gulf Coast, Inc., 2018 BL 149888, M.D. Fla., 8:18-cv-692-T-33JSS, 4/27/18).

DISCRIMINATION

Retaliation

A gay black man from Haiti who worked for the City of New York and alleged that he was subjected to employment discrimination over several years can’t proceed on his claim that he was subjected to continued employment discrimination because of his EEOC charge alleging Title VII claims. He failed to file suit within 90 days after receiving his right-to-sue letter, making the underlying discrimination claims that were part of his original charge time-barred, and to allow him to suspend the exhaustion requirement for purposes of his retaliation claim would effectively invalidate the statute of limitations requirement (Duplan v. The City of New York, 2018 BL 151477, 2d Cir., 17-1359-cv, 4/30/18).

Discharge

An assistant to an assessor didn’t show that Columbus Township in Michigan fired her due to her age, rather than for budgetary reasons, because her allegations, including that the firing decision-maker referred to her replacement as “young lady” and that she was fired because the township wanted to get rid of her boss, didn’t show that her age was a factor in the firing decision or that the township’s reasoning for the firing decision didn’t have any basis in fact, the court said (Alberty v. Columbus Township, 2018 BL 151435, 6th Cir., 17-1473, unpublished 4/30/18).

Age Discrimination

A court erred in holding that a prospective candidate for a U.S. Postal Service criminal investigator position didn’t show he was qualified, or that he wasn’t selected because of his age. On appeal, the court found that the candidate had demonstrated that the criteria outlined in the job description were different than those actually applied in evaluating applicants, and that despite being qualified, a younger employee was selected instead (McPherson v. Brennan, 2018 BL 151549, 8th Cir., 17-2098, 4/30/18).

Retaliation

A court improperly held that a female employee of Crowley Maritime Corp. wasn’t entitled to trial on a retaliation claim following complaints about age and sex discrimination. The court found the company’s claim that she was fired in connection with budget cuts to be “contradicted by the timing and circumstances” of her firing, because she was fired almost four months after 100 employees were laid off, and the company later claimed her poor performance was the reason for her firing, despite a “stellar career history” (Benz v. Crowley Mar. Corp., 2018 BL 149439, 11th Cir., No. 16-17363, unpublished 4/27/18).

Sex Discrimination

A female former operations manager for G4S Secure Solutions (USA) Inc. couldn’t demonstrate her right to trial against the company on a sex-discrimination claim. The court found that there was only one proper male comparator, and that he made nearly $10,000 less a year than the employee bringing this case, and that other female project managers made more than her, so she couldn’t establish that she was unfairly compensated because of her sex (Horton v. G4S Sec.re Solutions (Usa), Inc., 2018 BL 150098, M.D. La., CIVIL ACTION 16-544-SDD-EWD, 4/27/18).

Hiring

In a suit against the commissioner of the New York State Department of Labor, a “non-Hispanic” senior investigator in the Division of Wage Protection and Immigrant Services can proceed on a claim that he wasn’t hired for a position because of his race. The court found he’d established his initial burden by showing that a Hispanic woman with less experience received a position he applied for, and that no non-Hispanic men were promoted to “senior management positions between 2010 and 2017” (Dacier v. Reardon, 2018 BL 149899, N.D.N.Y., 1:17-CV-418 (LEK/CFH), 4/27/18).

Color Discrimination

A white employee of Jewel Food Stores Inc., can’t proceed with a color-discrimination claim against the store, although he will have an opportunity to amend his complaint and bring a claim based on race. In filing his EEOC charge, he had checked the box for “race” rather than “color,” so he hadn’t exhausted his administrative remedies with regard to the color-discrimination claim, but the court found a “reasonable relationship” between his charge and the claims in his complaint (Straub v. Jewel Food Stores, Inc., 2018 BL 151272, N.D. Ill., 17 C 06401, 4/27/18).

DISABILITIES

Adverse Action

A police officer for Oak Park, Ill., loses his claim that the city retaliated against him for taking extensive medical leave for his migraine headaches, because either the city was within its rights to act as it did—as when it ordered him to undergo a psychological fitness-for-duty exam before returning from leave—or the city’s action was not harmful enough to support a claim—as when it took three months to give him approval for a second job (Freelain v. Village Of Oak Park, 2018 BL 151736, 7th Cir., 16-4074, 4/30/18).

Disparate Treatment

A U.S. Postal worker’s placement on light duty and assignment of less than 40 hours of work per week wasn’t discrimination based on her multiple sclerosis, because she asked for light duty and described the placement as a “win-win,” no one on light duty was entitled to a 40-hour work week, and no non-disabled workers on light duty actually had a 40-hour week (Hatch v. Brennan, 2018 BL 149790, 9th Cir., 16-35217, unpublished 4/27/18).

‘Substantially Limits’

A chemical operator at a clay processing plant in Mississippi couldn’t show that he was ‘disabled’ because of his Chronic Pulmonary Lung Disease, sarcoidosis, or asthma to support his claim that he was fired in violation of federal disability law. His conditions didn’t substantially limit his ability to breathe, because they were only triggered by chemicals and dust at work, and he could have worked a different job (Jackson v. Oil-Dri Corp. of Am., 2018 BL 151293, N.D. Miss., 3:16-CV-189-DMB-RP, 4/27/18).

Administrative Exhaustion

Former counselor for the West Virginia Division of Rehabilitative Services can’t proceed with his disability discrimination claims in federal court, because he didn’t file a discrimination charge with the West Virginia Human Rights Commission before filing his federal administrative charge. Federal court claims require prior filing with the state agency even though West Virginia’s state court does not (Johnson v. W. Va. Div. of Rehabilitative Servs., 2018 BL 149748, S.D. W.Va., No. 3:17-3656, 4/27/18).

Association Discrimination

A staffing services manager for a staffing company and its client must rewrite his complaint before he can bring a claim that he was discriminated against because he spoke up for disabled employees, because he didn’t initially include an Americans with Disabilities Act claim, but his administrative charge would have encompassed an investigation into potential disability discrimination (Raulerson v. New South Express, LLC, 2018 BL 149515, N.D. Ala., No. 1:17-CV-1966-VEH, 4/27/18).

INDIVIDUAL EMPLOYMENT RIGHTS

Defamation

A CVS pharmacist who started a pharmacy that sold compounded drugs and was fired, on her supervisor’s recommendation, for violating CVS’s conflict-of-interest policy can’t proceed with a defamation claim against the supervisor. She says the supervisor’s statements that her pharmacy competed with CVS were false because its products were different, but they treat the same conditions as CVS’s synthetic drugs, and, like CVS, it sold nonprescription products, like vitamin supplements and fish oil (Martinsen v. Engleka, 2018 BL 151528, Minn. Ct. App., A17-1397, unpublished 4/30/18).

First Amendment

A CEO for Alabama One Credit Union can’t proceed with his First Amendment claim—alleging that he was fired in retaliation for suing the Alabama Credit Union Administration after it suspended him and his co-workers for refusing to settle claims brought against them and the credit union—against Alabama’s former governor and his legal advisor. The administration’s administrator fired the CEO, and he can’t show that the governor and advisor exercised improper control over the firing decision (Carruth v. Bentley, 2018 BL 149487, N.D. Ala., 7:17-cv-1445-LSC, 4/27/18).

Emotional Distress

A foreign service officer for the U.S. Department of State—assigned to work at the Caracas, Venezuela embassy—can’t amend her claim alleging that her supervisor inflicted emotional harm by acting maliciously toward her. The officer says that a federal statute allows her administrative process to settle her claim, but it’s unclear whether the statute applies and she had a chance to amend the claim earlier, the court said (Beberman v. United States Dep’t of State, 2018 BL 149691, D.V.I., 14-0020, 4/27/18).

Tortious Interference

A part-time occupational therapist may amend her claim alleging that Allstar Therapies Inc. in Virginia interfered with her employment when it caused her other part-time employer to fire hire and it allegedly solicited the other employer to provide the same services that she’d been hired to perform. The therapist has shown that Allstar knew about her other employment contract, but she must show that its conduct was improper, involved fraud or deceit, or violated a standard or trade practice (Stout v. Allstar Therapies, Inc., 2018 BL 149685, E.D. Va., 3:17-CV-00592, 4/27/18).

CLASS & COLLECTIVE ACTIONS

Collective Certification

An oilfield services company worker can go ahead with his collective action claiming that field personnel were misclassified as overtime-exempt salaried employees, because five co-workers’ claims that their work involved manual and technical labor without any supervisory duties were enough to establish a class and the differences in job titles don’t mean that they can’t all claim that they worked 80-hour weeks without extra pay (Olivas v. C & S Oilfield Servs., LLC, 2018 BL 149671, D.N.M., No. CIV 17-0022 JB\CG, 4/27/18).

Overtime Exemption

Staff at nonprofit group homes for developmentally disabled adults in Maine showed that their sleep time should have been considered compensable work time for purposes of their collective action seeking unpaid overtime, given that the agency’s system of designating a shift as one week on, one week off from Thursday to Thursday while computing payroll from Sunday to Sunday made it ineligible for sleep-time exemption under federal regulations (Giguere v. Port Res., 2018 BL 151039, D. Me., No. 2:16-cv-58-NT, 4/27/18).

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