Latest Labor and Employment Cases for May 7, 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

Refusal to Bargain

An agricultural employer charged with refusing to bargain with a union didn’t prove that the union had disclaimed its interest in representing bargaining unit employees. A union representative had said “We’re through with you” when prior negotiations over a labor contract fell through, and the union was inactive for 30 years after that before seeking to bargain with the employer again. However, the union representative’s statement could have several possible meanings, and the union’s subsequent inactivity didn’t convert the statement into an effective disclaimer (Arnaudo Bros. v. Agric. Labor Relations Bd., 2018 BL 159300, Cal. Ct. App., 5th Dist., FF072420, 5/4/18).

Public Employees

A New Jersey borough must proceed to arbitration with a union in a dispute over whether part-time police dispatchers who work on Christmas Day are entitled to holiday pay, as well as double time, under a labor contract. Although the borough maintains that the union can’t arbitrate grievances on the dispatchers’ behalf because the dispatchers aren’t covered by the contract, it’s for the arbitrator to decide whether the contract covers the dispatchers, a court said (In re Milltown, 2018 BL 158792, N.J. Super. Ct. App. Div., A-1306-17T1, 5/4/18).

NLRB

Discrimination

A company that provides janitorial services unlawfully fired an employee who filed a wage theft complaint with the City of Houston and spoke at a city council meeting about the wages, hours, and working conditions of the company’s employees. The company filed an answer to the unfair-labor-practice complaint that it later withdrew, and the NLRB granted the general counsel’s motion for a default judgment (JBM Janitorial Maintenance Inc., 2018 BL 159114, N.L.R.B., 16-CA-201387, 5/4/18).

WAGE & HOUR

Discovery

A Louisiana company may question former employees, who claim they were misclassified as independent contractors, about whether they filed income taxes. The information is relevant to the employees’ claim because courts have considered the self-employed filing designation in determining whether a worker was an employee or independent contractor (Toro v. Coastal Indus., LLC, 2018 BL 159640, M.D. La., 17-532-JWD-RLB, 5/4/18).

Sanctions

An employee of a New York company must pay $3,100 as a sanction for bringing a claim for unpaid minimum wage for time periods for which he admitted that he was paid above the minimum wage level (Yu Sen Chen v. MG Wholesale Distribution Inc., 2018 BL 160403, E.D.N.Y., 16-CV-4439 (PKC) (RLM), 5/4/18).

Collective Certification

Pipeline inspectors for Furmanite showed that they have sufficiently similar claims to move forward with their collective action for unpaid overtime, even though they have different job titles and duties, because they said they were all paid a day rate that didn’t accurately account for their overtime hours (Wade v. Furmanite Am., Inc., 2018 BL 159413, 3:17-CV-00169, 5/4/18).

Overtime Rate Calculation

A nursing assistant for an Ohio nursing home chain can’t go ahead with her proposed collective action claiming that the company should have added “remuneration payments” to base pay in calculating regular rates on which to base overtime premiums, because she didn’t give enough information about why she got those bonuses to know if they were discretionary and so excludable under federal wage law regulations (Smith v. Hillstone Healthcare Inc., 2018 BL 159086, S.D. Ohio, No. 2:17-cv-1075, 5/4/18).

Attorneys’ Fees

Lawyers for San Francisco tour bus drivers get a little more than half of the over $2 million that they asked for after winning on all but one of the drivers’ wage claims in their class and collective action, because block-billing made it difficult to determine how much time was spent on some tasks and too much time was spent on other tasks that should’ve been routine for attorneys with hourly rates at $950 (Robinson v. Open Top Sightseeing S.F., LLC, 2018 BL 159817, N.D. Cal., No. 14-cv-00852-PJH, 5/4/18).

Damages

Three immigrant workers in Colorado are owed the $40,022, $14,811, and $15,678 on their state minimum wage and wage payment claims that a jury awarded after finding that business/farm owners provided housing and other support for them and their children instead of paying for their services, in addition to the non-economic and punitive damages owed under the federal forced labor law. For two of the workers, however, the jury’s award of economic damages on their forced labor claims duplicated the state wage law awards, so their unpaid wages are owed only under the state wage law (Echon v. Sackett, 2018 BL 159632, D. Colo., No. 14-cv-03420-PAB-NYW, 5/4/18).

Settlement Agreements

Truck drivers for Frito-Lay in California get final approval to accept an offer of $6.5 million to settle their class and collective action challenging the company’s piece-rate pay system, because the fact that none of the 254 class members objected to the agreement to pay an average of $18,377 in back wages, among other considerations, shows that the settlement is reasonable. Among the court’s tweaks to the agreement, however, is a change so that unclaimed funds go to the state comptroller’s unclaimed property fund instead of a United Way program for youth job training that doesn’t benefit adult truck drivers (Acosta v. Frito-Lay, Inc., 2018 BL 159775, N.D. Cal., No. 15-cv-02128-JSC, 5/4/18).

DISCRIMINATION

Judicial Removal

A trial court properly held that there weren’t sufficient grounds to remove a director from the Pocono County Place Property Owners Association based on behavior including alleged sex discrimination. While the court found conduct like name-calling to be “boorish and unprofessional,” it didn’t find proper cause to remove him under the Nonprofit Corporation Law, stressing that this “drastic” remedy shouldn’t be used for merely “undesirable or offensive” conduct (A Pocono Country Place Prop. Owners Ass’n v. Kowalski, 2018 BL 160515, Pa. Commw. Ct., 904 C.D. 2017, 5/7/18).

Discharge

A business associate from Haiti didn’t show that Mount Sinai Health Systems in New York fired her because of her race, rather than for making significant mistakes after being given a final warning. The associate’s allegations that her supervisor made stray comments to her about her race and ability to speak English didn’t show that her race influenced the firing decision, the court said (Lowe v. Mount Sinai Health Sys., Inc., 2018 BL 159378, S.D.N.Y., 16 Civ. 6074 (AKH), 5/4/18).

Discharge

A benefits specialist didn’t show that a payroll company fired her because of her age, rather than for poor work performance. The specialist was hired and fired by the same director within a three-month time span, and she didn’t show that her age was a factor in the firing decision, the court said (Georges v. Dominion Payroll Servs., LLC, 2018 BL 159191, E.D. Va., 3:16cv777, 5/4/18).

Res Judicata

A former employee can proceed on her federal civil rights suit against Alter Metal Recycling in Wisconsin, even though a state administrative agency dismissed her state law employment discrimination claims. The company didn’t argue that the federal claims couldn’t have been brought in the state proceedings, but the court will give it a chance to develop this argument, if there is one at all, in supplemental briefing (Rust v. Alter Metal Recycling, 2018 BL 159417, W.D. Wis., No. 16-cv-3-jdp, 5/4/18).

Age Discrimination

An employee for HP Inc. in Idaho may amend his complaint to add relevant information to his age discrimination claims. The company argued that the employee’s allegations that the company didn’t comply with statutory notice requirements were irrelevant, but the court said that they could, if proven, tend to show that the company subjected the employee to age discrimination (Falk v. HP Inc., 2018 BL 159622, D. Idaho, No. 1:17-cv-00401-BLW, 5/4/18).

DISABILITIES

Protected Activity

Regional West Medical Center in Nebraska prevails over a former employee’s claim that she was furloughed and then fired because she had requested accommodations for her broken leg, because the employee couldn’t show that she actually believed her requested accommodation was appropriate (Shotwell v. Reg’l W. Med. Ctr., 2018 BL 160613, 8th Cir., 17-2561, unpublished 5/7/18).

Default Judgment

Montgomery County, Md., wins a disability discrimination case against it by default, because the employee who filed the charges hadn’t participated in any exchanging of evidence at all, much less complied with court orders to do so, and his personal problems don’t excuse his inactivity (Williams v. Montgomery County, 2018 BL 159130, D. Md., No. PX-16-3204, 5/4/18).

INDIVIDUAL EMPLOYMENT RIGHTS

Negligence

BNSF Railway can’t exclude generic post-incident remedial evidence in a railroad worker’s lawsuit for severe injuries to his Achilles tendon from stepping in a badger hole covered with vegetation, allegedly due to its negligence. Post-incident rule changes or repairs can’t be used to show negligence but may be used for impeachment or to prove ownership, control, or the feasibility of precautionary measures, and the court can’t determine the purpose because BNSF hasn’t specified any remedial measure (Lofgren v. BNSF Ry., 2018 BL 159539, D.N.D., 4:15-CV-0083-MWB-ARS, 5/4/18).

Due Process

A tenured professor for the University of Texas-Pan American doesn’t have a claim for violation of her due process rights when she was fired after the university was closed and replaced by a new one. The professor says that the new university was supposed to hire UTPA’s faculty, but she didn’t meet the hiring requirements and she can’t show that she had a constitutionally protected right to continued employment (Rombough v. Bailey, 2018 BL 159500, 5th Cir., 17- 40432, unpublished 5/4/18).

CLASS & COLLECTIVE ACTIONS

Collective Certification

Pipeline inspectors for Furmanite showed that they have sufficiently similar claims to move forward with their collective action for unpaid overtime, even though they have different job titles and duties, because they said they were all paid a day rate that didn’t accurately account for their overtime hours (Wade v. Furmanite Am., Inc., 2018 BL 159413, 3:17-CV-00169, 5/4/18).

Overtime Rate Calculation

A nursing assistant for an Ohio nursing home chain can’t go ahead with her proposed collective action claiming that the company should have added “remuneration payments” to base pay in calculating regular rates on which to base overtime premiums, because she didn’t give enough information about why she got those bonuses to know if they were discretionary and so excludable under federal wage law regulations (Smith v. Hillstone Healthcare Inc., 2018 BL 159086, S.D. Ohio, No. 2:17-cv-1075, 5/4/18).

Attorneys’ Fees

Lawyers for San Francisco tour bus drivers get a little more than half of the over $2 million that they asked for after winning on all but one of the drivers’ wage claims in their class and collective action, because block-billing made it difficult to determine how much time was spent on some tasks and too much time was spent on other tasks that should’ve been routine for attorneys with hourly rates at $950 (Robinson v. Open Top Sightseeing S.F., LLC, 2018 BL 159817, N.D. Cal., No. 14-cv-00852-PJH, 5/4/18).

Settlement Agreements

Truck drivers for Frito-Lay in California get final approval to accept an offer of $6.5 million to settle their class and collective action challenging the company’s piece-rate pay system, because the fact that none of the 254 class members objected to the agreement to pay an average of $18,377 in back wages, among other considerations, shows that the settlement is reasonable. Among the court’s tweaks to the agreement, however, is a change so that unclaimed funds go to the state comptroller’s unclaimed property fund instead of a United Way program for youth job training that doesn’t benefit adult truck drivers (Acosta v. Frito-Lay, Inc., 2018 BL 159775, N.D. Cal., No. 15-cv-02128-JSC, 5/4/18).

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