Latest Labor and Employment Cases for May 8, 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

Union Dues

An electrical local union in Michigan can’t continue its policy of requiring members who want to resign or revoke their dues-deduction authorization to appear in person at the union hall with picture identification. Although the union said that these requirements were merely procedural steps necessary to prevent fraud, the NLRB properly found that the requirements significantly burdened the exercise of protected rights by union members who live some distance from the union hall, wish to avoid face-to-face encounters with union personnel, or lack a picture ID, a court said (Electrical Workers IBEW, Local 58 v. NLRB, 2018 BL 162064, D.C. Cir., 17-1058 Consolidated with 17-1108, 5/8/18).

Military Leave

A former roustabout on an oil rig can proceed with his claim that he was unlawfully denied reemployment after returning from military leave. His emails with clerks on the rig about possible openings gave his former employer sufficient notice that he was applying for reemployment because they didn’t just request information about possible reemployment procedures, and the clerks handled some human relations issues for the company (Sumrall v. Ensco Offshore Co., 2018 BL 160907, S.D. Miss., 2:17-CV-48-KS-MTP, 5/7/18).

NLRB

Interference

A mining company in West Virginia unlawfully threatened to discipline an employee who said he wanted union representation at a meeting with a foreman and other managers. Even assuming that the foreman was making a “smart-aleck” remark, he told the employee, “I never intended to write you up, but if you want wrote up, I can find something to write you up with, and you can come back tomorrow at 4:00 with your union representation” (Murray American Energy, Inc., 2018 BL 160926, N.L.R.B., 06-CA-169736, 5/7/18).

WAGE & HOUR

Discovery

Workers suing a Louisiana company for unpaid overtime can get their payroll records extending to the end of their employment, even though the company says it started paying overtime eight months before so those later records aren’t necessary. The workers’ claims cover the entire period of their employment, there are still questions as to how the supposedly paid overtime was calculated, and the company didn’t show that producing the records would be a real burden, the court found (Toro v. Coastal Indus., LLC, 2018 BL 160839, M.D. La., No. 17-532-JWD-RLB, 5/7/18).

Preemption

A security guard for Securitas may bring his claim for unpaid time when he was required to work through meal breaks in a California court, rather than a federal court, despite the company’s argument that his claim is covered by a collective bargaining agreement. That argument is a defense, so it doesn’t show that his claim is governed by federal law (Dedic v. Securitas Sec. Servs. USA, Inc., 2018 BL 161870, N.D. Cal., 5:17-cv-06728-HRL, 5/7/18).

Settlement Agreements

Ruth’s Chris Steak House in Mobile, Alabama can settle a server’s minimum-wage claim for a total of $7,500, plus $12,500 for attorneys’ fees, because the $7,500 includes $1,595 beyond back wages and liquidated damages as fair compensation for the settlement agreement’s confidentiality and release provisions (Scherr v. Cooper Rests., Inc., 2018 BL 161496, S.D. Ala., No. 17-00338-CG-N, 5/7/18).

Damages

An Illinois couple together owe a total of over $150,000 to a Cameroonian nanny after a jury trial on her federal and state wage claims, despite the argument that the jury’s award of over $75,000 each against the husband and wife separately meant that the jury intended to award only a total of more than $75,000, because the jury was instructed against awarding duplicative damages and is presumed to have meant to award the double amount. The couple also owe $460,829 in attorneys’ fees because no further reductions are called for after the trial court trimmed the original $961,324 request (Mouloki v. Epee, 2018 BL 160765, N.D. Ill., No. 14 C 5532, 5/7/18).

Overtime

Drivers for a shuttle service must give more specific facts to support their claim for unpaid overtime, because they didn’t say that there was a given week in which they had to work off-the-clock, or an estimation of how much time they spent on off-the-clock activities (Davis v. Laurel Med. Servs. Corp., 2018 BL 161556, D. Or., 3:16-cv-1973-SI, 5/7/18

Class Actions

A California exotic dancer’s wage-and-hour class action is on hold pending possible settlement of two similar lawsuits against the same defendants, because the dancer had opted into those lawsuits, which were filed before her action and contain release provisions that would bar her claims (Gomez-Ortega v. Deja Vu – S.F., LLC, 2018 BL 161824, N.D. Cal., No. 17-cv-06971-LB, 5/7/18).

Settlement Agreements

An agreement settling a non-profit foundation employee’s claim for unpaid overtime is fair, because the employee will receive the $40,000 he claims he is owed, and the agreement doesn’t contain any sanctions or permit retaliation if he violates the confidentiality provision (Confair v. Charles P. & Margaret E. Polk Found., 2018 BL 161103, M.D. Pa., No. 1:17-CV-0674, 5/7/18

FMLA Interference

An armed officer for a Miami detention center administrator may move forward with his claim that it interfered with his Family and Medical Leave Act rights by allegedly failing to notify him that it scheduled a required firearm recertification while he was on leave, because the administrator typically put scheduling notices on a bulletin board at the office, and requiring him to physically come in to stay abreast of his schedule could discourage him from using leave (Baussiquot v. Akal Sec., Inc., 2018 BL 160749, S.D. Fla., 17-22446-CIV-ALTONAGA/Goodman, 5/7/18

DISCRIMINATION

Hiring

A 66–year-old applicant for two assistant professor positions at SUNY Oneonta couldn’t proceed against members of the school faculty on a claim that he was rejected because of his age. He alleged that the applicants selected were less qualified as well as younger, but besides citing the age gap, he offered only vague evidence to support his own qualifications, or age bias on the part of the faculty members (Committe v. Yen, 2018 BL 161236, N.D.N.Y., No. 6:17-cv-0784 (MAD/TWD), 5/7/18).

Discharge

A black nurse fired from Select Specialty Hospital in Oklahoma City couldn’t get a trial on a claim that she was fired because of her race, following an investigation of recurrent theft in the hospital. She didn’t show that the hospital’s decision was pretextual, because she couldn’t prove that the theft allegations against her were false, and a white nurse was also fired at the same time, after a patient allegedly saw both nurses rummaging through his drawer (Malone v. Select Specialty Hosp. – Oklahoma City, Inc., 2018 BL 161852, W.D. Okla., CIV-16-1294-M, 5/7/18).

Disparate Treatment

A black former police officer didn’t show that the City of Cleveland transferred him, forced him out of his position and treated him more harshly than non-black officers because of his race. The officer’s transfer was merely a reassignment that his collective bargaining agreement permitted and he agreed to, the terms of his employment didn’t change, he admittedly retired from the police force on his own will, and he didn’t show that he was treated differently than non-black officers under similar circumstances, the court said (Harper v. City of Cleveland, 2018 BL 161765, N.D. Ohio, 1:16-cv-2972, 5/7/18).

Discharge

A black TSA security officer at LAX couldn’t demonstrate that he was fired because of race, color, sex, or age discrimination, rather than his physical inability to lift heavy items and reach overhead. He compared himself to eight employees who weren’t fired to show disparate treatment, but couldn’t show he was similar in “all material aspects,” and the court found him more similar to 22 employees who were also removed, because they all suffered from permanent physical restrictions, as opposed to the eight that kept their positions (Mitchell v. Nielsen, 2018 BL 161766, C.D. Cal., CV 16-7695 PA (MRWx), 5/7/18).

Retaliation

Two City of Milwaukee employees were denied a trial on their retaliation suit against the city following complaints about sexual harassment. The court found that the female employee engaged in protected activity under the Civil Rights Act when she objected to sexually-charged comments from a supervisor, while the male employee’s complaints about being called “gay” weren’t protected, but the court found that neither employee could demonstrate a causal link between any adverse actions suffered and their complaints (Gabler v. City of Milwaukee, 2018 BL 161274, E.D. Wis., 14-CV-266, 5/7/18).

Promotion

An employee didn’t show that the Albuquerque Bernalillo City Water Utility Authority in New Mexico didn’t promote him to an electrical engineer position because of his age. The employee didn’t even apply for the position and the selected candidate was older than him, the court said (Barrios v. Albuquerque Bernalillo Cty. Water Util. Auth., 2018 BL 161021, D.N.M., Civ. No. 17-56 KK/JHR, 5/7/18).

Discipline

A black U.S. Air Force officer with the 61st Air Base Group in Los Angeles couldn’t take the secretary of the Air Force to trial on a claim that the officer’s suspension for violating uniform policy, being late to training, and sleeping on duty was racially motivated. He called into question the reasoning behind his suspension, presenting evidence including that of a white officer not being disciplined for being late on the same occasion, but the court found that no similarly situated officer had “amassed a record of misconduct” that was comparable (Worthen v. James, 2018 BL 161746, C.D. Cal., 2:15-cv-01747-ODW-JC2:16-cv-03181-ODW-JC, 5/7/18).

Retaliation

A Bed Bath & Beyond employee, who alleged that she was demoted and “marginalized” after complaining about a manager’s role in initiating and concealing an affair between her husband, who was a fellow employee, and another co-worker, can’t proceed with a retaliation claim against the company. The court found that the employee’s retaliation claim was not reasonably related to her charge with the EEOC, because information relevant to this claim wouldn’t have been revealed through investigating her charge, which related to having to endure “her husband’s affair as a condition of employment” (Ballard v. Bed Bath & Beyond, Inc., 2018 BL 160857, E.D. Va., 3:18CV92-HEH, 5/7/18).

Hostile Work Environment

A female employee of the Montgomery Township Public Works Department in Pennsylvania couldn’t go to trial on a sex-based hostile work environment claim after being fired for allegedly stealing a supervisor’s phone. The court found she didn’t demonstrate a connection between working in a moldy setting and her being female, or that she’d been denied worker’s compensation because of her sex, because the Township’s policy covered all of her relevant expenses, and a single crass comment from a co-worker wasn’t enough to show pervasive discrimination (Lamb v. Montgomery Township, 2018 BL 160748, 3d Cir., 17-1180, unpublished 5/7/18).

DISABILITIES

Timeliness

A former health inspector for St. Louis County, Mo., can’t add another claim to his lawsuit to say that he was forced to quit due to his shellfish allergy, because the time to make such changes has passed, he didn’t say why he couldn’t have initially included it, and he would certainly lose the claim because it’s been well over two years since he quit (Mills v. St. Louis Cty. Gov’t, 2018 BL 162309, E.D. Mo., 4:17cv0257 PLC, 5/8/18).

Reasonable Accommodation

Cook County Sheriff’s Office in Illinois did all it needed to accommodate a diabetic correctional officer’s need for his own private bathroom to administer insulin shots, a refrigerator for his medication, and a certain ergonomic chair. It gave him access to a bathroom with locks, a cooling bag and access to a shared refrigerator, and a different kind of ergonomic chair, all of which accommodated his conditions even though they did not match his exact requests (Ammons v. Dart, 2018 BL 161099, N.D. Ill., No. 16-cv-7770, 5/7/18).

Subject Matter Jurisdiction

An employee in New Mexico will be able to argue his disability discrimination case in state court because his complaint only names state laws that he feels were violated. Agreeing with the magistrate’s recommendation, the court said that whether he filed a federal administrative charge of discrimination and could have asserted a federal claim, or whether he exhausted his state administrative remedies doesn’t determine where the suit should be argued (Gahafer v. E & M Int’l, Inc., 2018 BL 161484, D.N.M., 17-1165 MV/SCY, 5/7/18).

Attorneys’ Fees

Rocky’s Ace Hardware in Massachusetts won’t get attorneys’ fees or costs from an employee who unsuccessfully sued for disability discrimination. The fact that he filed some claims too late, lost the suit, or caused some delays over the course of litigation doesn’t show that his lawsuit was frivolous (Tarbell v. Rocky’s Ace Hardware, 2018 BL 161454, D. Mass., No. 15-10033-JGD, 5/7/18).

INDIVIDUAL EMPLOYMENT RIGHTS

First Amendment

An investigator can’t proceed with his claim that he was unlawfully fired by Chicago’s Independent Police Review Authority for refusing to change his reports to reflect more favorably on officers accused of misconduct. The review authority required him to draft and then revise his reports at the direction of his superiors, and his refusal to do so was speech pursuant to his official duties that’s not protected by the First Amendment (Davis v. Chicago, 2018 BL 162182, 2018 BL 162182, 7th Cir., 16-1430, 5/8/18).

Torts

A Former Warren City School District employee can’t proceed with her tort claim against the school district’s attorneys and two board members who allegedly concealed evidence in her separate lawsuit for wrongful termination. She fails to state a claim for the independent tort of intentional spoliation of evidence under Ohio law because it does not cover claims alleging intentional concealment of or interference with evidence, the Ohio Supreme Court says (Elliott-Thomas v. Smith, 2018 BL 162008, Ohio, 2017-0693, 5/8/18).

Contracts

An employee doesn’t have a claim alleging that Albuquerque Bernalillo County Water Utility Authority breached his employment contract when it denied him several promotions. The employee was subject to a collective bargaining agreement, and he hasn’t shown that the agreement was violated or that he exhausted his administrative remedies (Barrios v. Albuquerque Bernalillo Cty. Water Util. Auth., 2018 BL 161021, D.N.M., Civ. No. 17-56 KK/JHR, 5/7/18).

First Amendment

A police officer—assigned to a special unit at Cleveland Hopkins International Airport—can’t proceed with his First Amendment claim that he was transferred and forced to retire in retaliation for organizing his co-workers and expressing concerns about the alleged privatization of airport safety forces. The transfer wasn’t enough to make a reasonable person quit their job, the officer’s supervisors say that they didn’t know about his concerns before he retired, and they may show that he was only disciplined for poor performance and sleeping while on-the-job (Harper v. City of Cleveland, 2018 BL 161765, N.D. Ohio, 1:16-cv-2972, 5/7/18).

Due Process

A child abuse pediatrician doesn’t have a claim alleging that the Santa Clara Valley Medical Center violated her due process rights when it gave the press false information about her firing after she criticized its policies and procedures, and reported that her supervisor failed to make a child protective services report for a two-year-old child who later died. The pediatrician says that she unsuccessfully applied for three jobs in the area and now has to travel for part-time employment, but she was able to secure employment in her chosen field, the court said (Egge v. County of Santa Clara, 2018 BL 161857, N.D. Cal., 17-CV-02842-BLF, 5/7/18).

CLASS & COLLECTIVE ACTIONS

Class Actions

A California exotic dancer’s wage-and-hour class action is on hold pending possible settlement of two similar lawsuits against the same defendants, because the dancer had opted into those lawsuits, which were filed before her action and contain release provisions that would bar her claims (Gomez-Ortega v. Deja Vu – S.F., LLC, 2018 BL 161824, N.D. Cal., No. 17-cv-06971-LB, 5/7/18).

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