Latest Labor and Employment Cases for May 29, 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

Federal Preemption

The parents of former National Hockey League player Derek Boogaard, who died of an overdose after allegedly becoming addicted to pain pills prescribed to him by team doctors, can’t go forward with their wrongful-death claim against the league. While their amended complaint asserting harms related to head trauma isn’t preempted by federal law, Boogaard’s parents didn’t respond to the league’s argument that the complaint failed to state a claim, a federal appeals court said (Boogaard v. NHL, 2018 BL 186554, 7th Cir., No. 17-2355, 5/25/18).

Refusal to Bargain

The NLRB can’t enforce an order finding that a manufacturing company unlawfully failed to bargain with a union over severance pay and preferential rehiring for laid off workers without explaining its reasoning. The board analyzed whether the union could be said to have clearly and unmistakably waived its right to bargain in reaching this conclusion, but didn’t explain why the waiver analysis should apply in cases, like this one, where a successor employer unilaterally imposes initial employment terms (Tramont Mfg., LLC v. NLRB, 2018 BL 188028, D.C. Cir., 17-1133 Consolidated with 17-1147, 5/29/18).

Labor Unions

The International Longshore & Warehouse Union must comply with an NLRB order finding that it unlawfully accepted an employer’s recognition as the union representing maintenance and repair mechanics at the Oakland and Tacoma ports. These workers had been represented by another union as part of their work for a company that was a single employer with the company whose workers the ILWU represented, and their employer had an obligation to bargain with the other union about its decision to shut down operations after it lost the contract for work at the ports to the company whose workers the ILWU represented (Int’l Longshore & Warehouse Union v. NLRB, 2018 BL 187993, D.C. Cir., 15-1336 Consolidated with 16-1123, 5/29/18).

Representation Election

A transportation and logistics company must comply with an NLRB order requiring it to bargain with the union representing truck drivers and certain other workers at its Aurora, Illinois facility. The company said that the NLRB should have granted it a hearing on its claim that union supporters harassed and coerced employees in a close vote in favor of unionization, but it didn’t make any specific claims about individual misconduct that would warrant setting aside the election (XPO Logistics Freight, Inc. v. NLRB, 2018 BL 187840, D.C. Cir., 17-1177, unpublished 5/25/18).

WAGE & HOUR

Unemployment Benefits

A Wichita County, Texas employee was “unemployed” for state unemployment benefits purposes while she was on unpaid Family and Medical Leave Act leave, even though she eventually returned to work at another county job and was never fired, because she didn’t perform services for wages during her leave (Tex. Workforce Comm’n v. Wichita County, 2018 BL 185890, Tex., No. 17-0130, 5/25/18).

FLMA Employer Status

A Wisconsin pharmacy employee adequately stated a Family and Medical Leave Act claim based on her supervisor’s hostility towards the employee’s use of FMLA leave for various medical conditions ending in his firing her when she made her final request for leave, because she merely had to say that the pharmacy was a covered employer without specifically showing that the pharmacy had more than 50 workers within 75 miles of her worksite (Sando v. Wood River Pharmacy, Inc., 2018 BL 186272, W.D. Wis., No. 17-cv-640-jdp, 5/25/18).

Default Judgment

A Washington state public hospital owes an epileptic remote professional coder in Montana a total of $416,496 in damages and attorneys’ fees after ordering her to work in Washington for at least six months although she was medically restricted from driving, denying her family medical leave, and then firing her, because the hospital failed to respond to her complaint, and she properly followed the procedures for default judgment (McCluey v. Skagit Cty. Pub. Hosp. Dist. No. 1, 2018 BL 187164, W.D. Wash., No. 2:17-cv-01784, 5/25/18).

Wage Payment

A staffing coordinator for a Kentucky hospital system should’ve been allowed to go ahead with her state-law claim for unpaid wages during three specific weekday time periods, because her statements about those time periods merely clarified her earlier deposition testimony. She didn’t have a claim for pay and overtime beyond the flat $150 per day that she was paid for weekend on-call shifts, however, because she wasn’t required to stay home tied to a computer given that she could get the information she needed via her cell phone (Lazzari v. Norton Healthcare, Inc., 2018 BL 185904, Ky. Ct. App., No. 2016-CA-001349-MR, 5/25/18).

Collective Certification

An oil-and-gas industry services company employee can go ahead with his collective action claiming that all non-management oilfield operations workers weren’t properly paid overtime under federal law, because the company’s defense that those workers were overtime-exempt in that they were paid under a “Belo plan” that allows for fluctuating work weeks shows that there was a common pay policy that the workers can challenge as a group (Casarez v. Producers Serv. Corp., 2018 BL 186542, S.D. Ohio, No. 2:17-cv-1086, 5/25/18).

Pleadings

Amazon doesn’t have to defend against a California delivery driver helper’s wage claims, because he didn’t state facts to show that Amazon was a joint employer, and his statement that he was paid by the shift rather than the hour isn’t specific enough to establish overtime or minimum wage claims (Bravo v. On Delivery Servs., LLC, 2018 BL 187452, N.D. Cal., No. 18-cv-01913-EMC, 5/25/18).

Settlement Agreements

A New York spa can pay a total of $20,000 to settle two of its employees’ federal and state wage-law violation claims and drop the proposed class action, because the employees could find addresses for only 34 out of 52 class members, which isn’t enough to certify a class, and the settlement giving the employees about half of their claimed back wages is fair (Benavides v. Serenity Spa NY Inc., 2018 BL 186771, S.D.N.Y., No. 15-CV-9189 (JLC), 5/25/18).

Preemption

A Southwest Airlines customer service representative isn’t barred under the Railway Labor Act from bringing minimum wage and overtime claims challenging the airline’s failure to pay for time spent logging on and off computers, among other non-payment of wages claims, because there’s a question as to whether the RLA exemption applies to air carrier employees who aren’t directly involved in transportation and because it’s not necessary to interpret the collective-bargaining agreement to resolve her state-law claims (Acevedo v. Sw. Airlines Co., 2018 BL 186535, D.N.M., No. CV 16-24 MV/LF, 5/25/18)

DISCRIMINATION

Retaliation

A fired president of Stewart Title’s California region was properly denied trial on a claim that he was fired in retaliation for refusing to fire an employee over 40. There was no evidence that the president told a supervisor or a human resources employee that he was refusing to fire the subordinate, he indicated that he was looking for a replacement and that he’d found several candidates, and the record showed that his region was generating fewer profits than others (Vivanco v. Stewart Title of Cal., Inc., 2018 BL 186684, Cal. Ct. App., 2d Dist., No. B276883, 5/25/18).

Discharge

A fired former employee for Medgar Evers College of the City University of New York can’t proceed on his federal civil rights claims premised on his demotion, his firing, and the school’s failure to comply with its own disciplinary procedures. He didn’t allege any favorable treatment to employees who were outside of his protected classes nor did he otherwise indicate that the school’s disciplinary actions were motivated by discriminatory intent (Javed v. Medgar Evers Coll. of City Univ. of N.Y., 2018 BL 185900, 2d Cir., 17-3461-cv, unpublished 5/25/18).

Race Discrimination

A black former employee has the court’s approval to file an amended complaint on her claim that AT&T treated her differently than non-black co-workers because of her race. She alleged that she had a heavier workload, was excluded from group meetings, received lower pay increases, and was denied promotions, and even though she didn’t point to specific incidents, her allegations are sufficient at this stage of the litigation (Flewellen-El v. At&T Servs., Inc., 2018 BL 187420, N.D. Cal., C 17-04193 WHA, 5/25/18).

Retaliation

An employee who was suspended by the City of Newton, Massachusetts after allegations that she had committed larceny couldn’t show that the real reason for her suspension was the filing of her internal demand letter alleging employment discrimination, because the larceny allegations occurred before she submitted the letter (Mooney v. Warren, Mass. App. Ct., 17-P-1234, unpublished 5/25/18).

Adverse Action

A black male civilian cook supervisor couldn’t show that the U.S. Air Force subjected him to race discrimination. He maintained his position and pay grade, the undermining of his supervisory authority doesn’t qualify as a significant change in his employment status, and, in any event, the non-black employees whom he alleged were treated better than him didn’t have supervisory authority and thus aren’t proper comparators (Metellus v. Wilson, 2018 BL 186954, S.D. Ohio, 3:16-cv-300, 5/25/18).

Jurisdiction

A D.C. federal district court will not reconsider its dismissal of an employee’s sex discrimination, age discrimination, or retaliation claims against the Federal Bureau of Investigation, even though he argued that in a parallel proceeding, the U.S. Court of Appeals for the Federal Circuit made several errors. The Supreme Court denied his appeal in that proceeding, and the district court doesn’t have the authority to review a federal appellate court (Jones v. DOJ, 2018 BL 186008, D.D.C., 13-08 (RMC), 5/25/18).

Race Discrimination

In a suit against New York City, a group of black employees for the Equal Employment Opportunity Department of the city’s Department of Corrections can proceed with a claim that they were transferred to less prestigious units and denied raises because of race. The court found that they brought a valid discrimination claim by alleging that they were adversely affected by employment actions and largely replaced by non-black employees (Isbell v. City of New York, 2018 BL 186729, S.D.N.Y., 15-CV-8314 (VSB), 5/25/18).

Jury Instructions

An employee didn’t show that a federal district court gave confusing and inconsistent jury instructions in her racial discrimination trial against a healthcare company in Tennessee. The instructions of pretext, legitimate nondiscriminatory business reason, and intentional discrimination were straightforward and consistent with the law of the Circuit, the court said (Sanders v. Correct Care Sols., LLC, 2018 BL 187345, M.D. Tenn., 3:15-cv-01526, 5/25/18).

Discharge

A black female former corrections officer couldn’t show that the Connecticut Department of Corrections demoted and then fired because of her race or gender rather than her unsatisfactory performance. Her supervisor testified that she was provided with training and wasn’t able to do relative basic tasks several months into the job, and she didn’t return from expired medical leave despite being warned that her failure to return could result in her firing (Hines v. Conn. Dep’t of Corr., 2018 BL 185877, 2d Cir., 17-1964-cv, unpublished 5/25/18).

Exhaustion

In a suit against ABM Industries/Diversico Industries, a quality control janitor with hiring and firing power couldn’t proceed with a claim that he was fired because of retaliation or sex discrimination. He failed to include either claim when he filed his charge with the EEOC, and neither claim was reasonably related to the allegations in his charge (Valcarcel v. ABM Indus., 2018 BL 187893, M.D.N.C., 1:17CV735, 5/25/18).

DISABILITIES

Constructive Discharge

A veteran and former Michigan Child Protective Services officer can move forward with his claim that he was forced to quit based on his post-traumatic stress disorder, because his boss insinuated to his co-workers that he was a “crazy” veteran, continually wrote him up for minor infractions, and told him that he was “emotionally unfit” and would be fired within the year (Congden v. Mich. Dep’t of Health & Human Servs., 2018 BL 188253, E.D. Mich., 17-cv-13515, 5/29/18).

Discovery

The Equal Employment Opportunity Commission can seek evidence from Midwest Gaming & Entertainment, LLC, to support its claim that the casino illegally fired a slot technician with cancer rather than grant his request for three months’ medical leave. The court agreed with the EEOC that it needs more evidence before deciding if his request was reasonable (EEOC v. Midwest Gaming & Entm’t, LLC, 2018 BL 186816, N.D. Ill., No. 17 C 6811, 5/25/18).

Retaliation

The former president of a title company’s California division loses his claim that he was fired because he refused to fire an employee with Parkinson’s Disease. His division was “severely underperforming” compared to others within his boss’s supervision, and although he pointed out the legal implications of firing a disabled employee, he never actually refused to do it (Vivanco v. Stewart Title of Cal., Inc., 2018 BL 186684, Cal. Ct. App., 2d Dist., No. B276883, unpublished 5/25/18).

Association Discrimination

A hospital staffing coordinator in Kentucky wasn’t fired because she advocated for a disabled colleague who required accommodations, because the two-month span between the start of her advocacy and her firing is too long to show a causal link without any other evidence of discriminatory bias (Lazzari v. Norton Healthcare, Inc., 2018 BL 185904, Ky. Ct. App., No. 2016-CA-001349-MR, unpublished 5/25/18).

INDIVIDUAL EMPLOYMENT RIGHTS

Contracts

A corporation that contracted with Dial Information Services in Massachusetts to develop a social networking website for cost and 20 percent of the revenue, was told it wasn’t profitable in 2006, and found out in 2012 that it had been profitable in 2006, can’t proceed with its claim for unpaid revenues, filed in 2016. The breach-of-contract claim is barred because the six-year limitations period started in 2006, when Dial refused to pay (Ingem, Inc. v. Dial Info. Servs., Inc., 2018 BL 187946, Mass. App. Ct., 17-P-805, unpublished 5/29/18).

Public Employees

A senior city attorney for Salt Lake City, Utah, who shortly after accepting the promotion signed a statement that she was an at-will employee, can’t proceed with a claim that she was fired in violation of a state law protecting merit employees. She argued that no contract was formed and that the law’s protections couldn’t be waived, but she didn’t timely challenge judgment for the city on another basis—that she was equitably estopped from claiming merit employee status (Howick v. Salt Lake City Corp., 2018 BL 187830, Utah, 20150738, 5/25/18).

Attorneys’ Fees

A former employee for Sauk Village, Illinois is entitled to reasonable attorneys’ fees after winning her wrongful firing and violation of due process rights claims. The village signed an agreement promising to pay the employee’s fees, and it hasn’t shown that she was improperly viewed as a “prevailing party,” the court said (Gibbons v. Vill. of Sauk Vill., 2018 BL 186031, N.D. Ill., 15 CV 4950, 5/25/18).

Whistle-Blowing

A systems administrator for Washington County, Florida may proceed with his whistle-blower claim that he was fired in retaliation for reporting that a county commissioner wanted him fired due to his relationship with two other commissioners. The county says that the administrator was fired due to budget issues, but he may show that it knew about his report before he was fired and that other budget proposals wouldn’t have ended his position (Gainey v. Washington County, 2018 BL 186303, Fla. Dist. Ct. App., 1st Dist., No. 1D16-2499, 5/25/18).

Defamation

A civilian receptionist employed by a government contractor and working for the U.S. Army Recruiting Center in Hampton, Virginia doesn’t have a claim that she was fired for refusing to sign a warning notice that described her as “extremely confrontational and exhibiting constant insubordinate behavior” after a dispute with a co-worker. The receptionist says that the statements in the notice were untrue, but the supervisor who wrote the notice wasn’t motivated by any ill will, and she honestly believed that the statements were true (McCray v. Infused Sols., LLC, 2018 BL 187813, E.D. Va., 4:14cv158, 5/25/18).

Public Employees

The California Department of Corrections and Rehabilitation properly disciplined a correctional lieutenant by reducing his pay for two years after he violated its use of force policy, resulting in an inmate and officer being injured. The lieutenant has been disciplined for violating the force policy in the past, and the penalty isn’t excessive, the court said (Lamboy v. State Pers. Bd., 2018 BL 186400, Cal. Ct. App., 4th Dist., D073441, unpublished 5/25/18).

Public Policy

A staffing coordinator for Norton Healthcare Inc. in Kentucky can’t proceed with her claim that she was wrongfully fired for complaining about unpaid wages. Norton says that the coordinator was fired for eavesdropping and improperly recording her co-workers’ conversations, and she can’t show that her firing was linked to her complaints (Lazzari v. Norton Healthcare, Inc., 2018 BL 185904, Ky. Ct. App., No. 2016-CA-001349-MR, unpublished 5/25/18).

Public Employees

Cape May County, New Jersey must rehire a keyboarding clerk after it fired her during her probationary period for allegedly lying about her employment on her application for Medicaid and SNAP benefits. The clerk didn’t lie on her job application or during her interview, her application for benefits was submitted years before she began her employment with the county, and her supervisor didn’t provide any reasons for her negative performance evaluation (Jimenez v. Cape May Cty. Soc. Servs., 2018 BL 185983, N.J. Super. Ct. App. Div., A-3379-15T3, unpublished 5/25/18).

Emotional Distress

A professor for Santa Clara University may be entitled to a temporary restraining order to lift his suspension pending the results of an internal investigation related to a former student’s sexual harassment complaint. The emotional distress and damage to the professor’s reputation caused by the suspension is enough to show irreparable harm, the court said (Heineke v. Santa Clara Univ., 2018 BL 186679, 9th Cir., 17-1740817-16876, unpublished 5/25/18).

CLASS & COLLECTIVE ACTIONS

Collective Certification

An oil-and-gas industry services company employee can go ahead with his collective action claiming that all non-management oilfield operations workers weren’t properly paid overtime under federal law, because the company’s defense that those workers were overtime-exempt in that they were paid under a “Belo plan” that allows for fluctuating work weeks shows that there was a common pay policy that the workers can challenge as a group (Casarez v. Producers Serv. Corp., 2018 BL 186542, S.D. Ohio, No. 2:17-cv-1086, 5/25/18).

Settlement Agreements

A New York spa can pay a total of $20,000 to settle two of its employees’ federal and state wage-law violation claims and drop the proposed class action, because the employees could find addresses for only 34 out of 52 class members, which isn’t enough to certify a class, and the settlement giving the employees about half of their claimed back wages is fair (Benavides v. Serenity Spa NY Inc., 2018 BL 186771, S.D.N.Y., No. 15-CV-9189 (JLC), 5/25/18).

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