Human resources & employment law cumulative case briefs



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HUMAN RESOURCES & EMPLOYMENT LAW

CUMULATIVE CASE BRIEFS

Robert A. Martin, J.D.

ramelcc@yahoo.com
Updated on January 15, 2015
Staying current on legal developments is essential – I regularly check on human resources and employment law announcements and share them with colleagues.


  • This cumulative collection is free, but I no longer provide opinions because I have resigned my license to practice law. Thus, no legal opinions are either expressly or impliedly given here – that’s what your legal counsel is for.




  • New information is added on top of previous content and this collection tends to grow large:

    • This is a cumulative collection, which means past information remains below the recently added content, and past versions can be deleted.

    • Don’t print it – search it electronically e.g., search for key words with Ctrl+F, or other software (e.g., OneNote) search methods.

    • Toward the end of each calendar year I begin warning that much older information will be deleted from the end of the collection at the start of the new calendar year – either save the previous version under another filename, or contact me later for a copy.




  • Focus predominates on anti-discrimination laws, leave laws, National Labor Relations Board decisions, etc. Though I live in Albuquerque, New Mexico and the 10th Circuit, cases from many jurisdictions are included in this collection.



  • Recommended additional resources to check out:

    • Employment Law Information Networkexcellent for articles, discussions, notices, recent cases and other valuable information: http://www.elinfonet.com/

    • Society for Human Resource Management: http://www.shrm.org/

    • M. Lee Smith: http://www.mleesmith.com/

    • Business Law Resources: http://www.blr.com/?source-MSN&effort=648




  • I try to be concise – bullet points, minimal legal jargon and litigation procedural details (litigators can check those by reading the full decision).




  • URL links usually are provided to

    • a court’s full decision for its reasoning, findings of fact, rulings, or other details litigators might find important, and

    • often to an informative or essential article about the case and related issues. Note: Links marked as “enhanced lexis.com version” (cases) or “annotated lexis.com version” (statutes) are available to lexis.com subscribers.




  • New information is added on top of previous content and this collection tends to grow large:

    • Don’t print it – search it electronically.

    • Toward the end of each calendar year I begin warning that older information will be deleted from the end of the collection at the start of the new calendar year – either save the previous version under another filename, or contact me later for a copy.




  • Laws can differ in various jurisdictions. Each case brief usually contains a jurisdiction designation in bold font (starting 1/31/12). Cases in your jurisdiction are almost always controlling law. However, cases outside of your jurisdiction are still helpful because the reasoning often provides illustrations of legal theories and practical guidance for matters not yet decided in your jurisdiction – often another jurisdiction will borrow that reasoning because the court found it persuasive (and fortunately for us in the field, this leads to considerable consistency among jurisdictions).




  • A map of the various federal appellate circuits is below, and this is the URL link http://www.uscourts.gov/court_locator.aspx for it and its helpful resources you can click on.



UNITED STATES FEDERAL APPELLATE CIRCUIT COURT JURISDICTIONS

CUMULATIVE CASE BRIEFS AND NOTES
Meals, Breaks: on premises, employer’s control, on-call – hours – significant obligations
Jurisdiction: California
Mendiola v. CPS Security Solutions, Inc., No. S212704 (CASC, 1/8/15) [enhanced lexis.com version]:

  • http://www.courts.ca.gov/opinions/documents/S212704.PDF .

  • Shaw Valenza law firm article at http://shawvalenza.blogspot.com/2015/01/ca-supreme-court-on-premises-on-call.html.

  • Ogletree Deakins Law firm article at http://www.ogletreedeakins.com/publications/2015-01-09/california-supreme-court-rules-duty-guards-entitled-pay-call-and-sleep-time.

Essentially, a break means an actual relief from the obligations and duties of work, as in a meaningful personal time for meals, rest, etc. The employer’s requirements of its employees on “break” were extensive. California law is complex and its supreme court decision modified the lower appellate court decision, so study the decision and law firm article for all of the important details.


Supreme court summary [edited slightly for readability]:
Here we hold that, under the California wage order covering security guards, these plaintiffs are entitled to compensation for all on-call hours spent at their assigned worksites under their employer’s control.
I. BACKGROUND
The relevant facts are not in dispute. As applicable here, CPS employed on-call guards to provide security at construction worksites. Part of each guard’s day was spent on active patrol. Each evening, guards were required to be on call at the worksite and to respond to disturbances should the need arise.
More specifically, a guard’s obligations differed depending on the day of the week. On weekdays, each guard was on patrol for eight hours, on call for eight hours, and off duty for eight hours. On weekends, each guard was on patrol for 16 hours and on call for eight hours.
By written agreement, an on-call guard was required to reside in a trailer provided by CPS. The trailers ranged from 150 to 200 square feet and had residential amenities including a bed, bathroom, kitchen, heating, and air conditioning. Only the assigned guard and maintenance staff had keys to these onsite trailers. Guards could keep personal items in the trailer s and generally use on-call time as they chose. However, children, pets, and alcohol were not allowed, and adult visitors were permitted only with the approval of the CPS client.
An on-call guard wanting to leave the work site had to notify a dispatcher and indicate where he or she would be and for how long. If another employee was available for relief, the guard had to wait onsite until the reliever arrived. If no reliever was available, the guard had to remain onsite, even in the case of a personal emergency. If relieved, a guard had to be accessible by pager or radio phone and to stay close enough to the site to return within 30 minutes.
Guards were compensated as follows. They were paid hourly for time spent patrolling the work site. They received no compensation for on-call time unless (1) an alarm or other circumstance s required that they conduct an investigation or (2) they waited for, or had been denied, a reliever. Guards were paid for the actual time spent investigating disturbances. If three or more hours of investigation were required during on-call time, the guard was paid for the full eight hours.
[Comment: This ruling is based on California law, but its reasoning might provide persuasive authority in other jurisdictions.]
Also, check this Littler Mendelson law firm article on a California trial court ruling at http://www.littler.com/wage-hour-counsel/inconsistent-application-policy-dooms-meal-and-rest-break-class-claims-california.]
CAFA: removal to federal court, Class Action Fairness Act – establish $5M controversy - estimated amount in controversy – reasonable assumptions, misclassification
Jurisdiction: Ninth Circuit
Two cases were submitted together on appeal, which provided an interesting opportunity for the law firm to clarify the nature and extent of proof in CAFA cases.
Ibarra v. Manheim Investments, Inc., No. 14-56779 (9th Cir., 1/8/15) [enhanced lexis.com version]:

  • http://cdn.ca9.uscourts.gov/datastore/opinions/2015/01/08/14-56779.pdf.

  • Littler Mendelson law firm article at http://www.littler.com/wage-hour-counsel/ninth-circuit-holds-cafa-5-million-amount-controversy-requirement-must-rely-%E2%80%9Creaso.


Ibarra appellate court staff summary:
The panel vacated the district court’s order remanding the putative class action to state court, and remanded to the district court to allow both parties the opportunity to submit evidence and arguments whether the $5 million amount in controversy requirement under the Class Action Fairness Act had been satisfied where the complaint did not include a facially apparent amount in controversy or may have understated the true amount in controversy.
The plaintiff putative class of employees sued in state court alleging violations of California’s Labor Code, and explicitly alleging that damages did not exceed $5 million. Defendant Manheim Investments, Inc. removed the case to federal court under the Class Action Fairness Act, asserting more than $5 million was at stake based on a “pattern and practice” of labor law violations.
The panel held that because the complaint did not allege that Manheim universally, on each and every shift, violated labor laws by not giving rest and meal breaks, Manheim bore the burden to show that its estimated amount in controversy relied on reasonable assumptions. The panel also held that a remand to the district court was necessary to allow both sides to submit evidence – direct or circumstantial – related to the contested amount in controversy.
The panel further held that if the damages assessment included assumptions, the chain of reasoning and the assumptions needed some reasonable g round underlying them. The panel concluded that Manheim relied on an assumption about the rate o f its alleged labor law violations that was not grounded in real evidence, and remanded on an open record for both sides to submit proof related to the disputed amount in controversy.
LaCross v. Knight Transportation, Inc., No. 14-56780 (9th Cir., 1/81/15) [enhanced lexis.com version];

  • http://cdn.ca9.uscourts.gov/datastore/opinions/2015/01/08/14-56780.pdf.

  • Littler Mendelson law firm article at http://www.littler.com/wage-hour-counsel/ninth-circuit-holds-cafa-5-million-amount-controversy-requirement-must-rely-%E2%80%9Creaso.


LaCross appellate court summary:
The panel reversed the district court’s judgment remanding the putative class action to state court, and held that the defendants Knight Transportation, Inc., and Knight Truck and Trailer Sales had shown t hat they were entitled under the Class Action Fairness Act to proceed in federal court because they had established the requisite $5 million amount in controversy.
The plaintiff putative class of truck drivers alleged that Knight misclassified them as independent contractors a and asserted other labor law violations, and filed their action in California state court. Knight removed the case to federal court and estimated the amount in controversy for reimbursing the drivers’ lease-related and fuel costs to be at least $44 million.
In Ibarra v. Manheim Investments, Inc. , __ F .3d __, No. 14-56779 (9th Cir. Jan. 8, 2015), filed simultaneously with this opinion, the panel held that when a defendant relies on a chain of reasoning that includes assumptions to satisfy its burden to prove by a preponderance of the evidence that the amount in controversy exceeded $5 million, the chain of reasoning and its underlying assumptions must be reasonable.
The panel applied the framework of analysis in Ibarra to defendants’ proof, and concluded that defendants had met their burden of proof because defendants relied on a reasonable chain of logic and presented sufficient evidence to establish that the amount in controversy exceeded $5 million their burden of proof because defendants relied on a reasonable chain of logic and presented sufficient evidence to establish that the mount in controversy exceeded $5 million.
Rehabilitation Act, ADA: disability, essential functions – subjective criteria – local commuting area, wrong address – anticipated address, adverse employment action, discrimination – pretext . . . plaintiff was treated differently from others similarly situated, retaliation, summary judgment dismissal affirmed
Jurisdiction: Tenth Circuit
Dickman v. Lahood, No. 13-3194 (10th Cir., 1/13/15) [enhanced lexis.com version]; http://www.ca10.uscourts.gov/opinions/13/13-3194.pdf.
The employer had a commuting-area requirement. Attempting to circumvent that essential requirement failed to work for this employee.
Appellate court conclusion:
The alleged “irregularities” asserted by Dickman plainly stem from the unusual context he himself introduced into the application process. Tellingly, Dickman does not produce evidence suggesting that any other FAA employee has been able to use an anticipated future address to satisfy a commuting-area requirement. See Jaramillo v. Adams Cnty. Sch. Dist. 14, 680 F.3d 1267, 1269 (10th Cir. 2 012) (“Pretext may also be shown [if] . . . the plaintiff was treated differently from others similarly situated.”). Taking “the facts as they appear to the person making the decision,” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1231 (10th Cir. 2000), we do not think it suspicious that FAA employees investigated the irregularity on Dickman’s application, leading them to conclude that the listed address was not his home address (and that his actual home address was outside the local commuting area).
Title VII, ADEA: discrimination – gender – age, adverse employment action reduction in force (RIF), retaliation, evidence – McDonnell Douglas – no pretext - – “pretext plus” rejected, summary judgment dismissal affirmed
Jurisdiction: Tenth Circuit
Brainard v. City of Topeka, No. 14-3055 (10th Cir., 1/13/15) [enhanced lexis.com version]; http://www.ca10.uscourts.gov/opinions/14/14-3055.pdf.
Appellate court conclusions [edited slightly for readability]:
Pretext:
. . . The district court noted that we have rejected a “pretext plus” standard, stating that “[n]o additional evidence is necessary to show discrimination because proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination.” Jones v. Okla. City Pub. Sch. , 617 F.3d 1273, 1280 (10th Cir. 2010) (further quotation omitted).
Retaliation:
In assessing Ms. Brainard’s claim of retaliation, the district court found it was “not persuaded that the evidence, even when considered in the light most favorable to the plaintiff, supports the arguments made by the plaintiff.” * * * . As the court further explained: The evidence clearly shows that Biswell informed employees in August 2009 that budget reductions would require the elimination of one IT position effective October 30, 2009. The actual termination did not occur until February 11, 2010, but there appears to be no dispute that such an elimination was forthcoming. Moreover, the evidence shows that the criteria used to determine who would be terminated was based upon an evaluation of the function of the position, the ability to spread those duties to other positions, and the desire not to impact the services of the citizens of Topeka. Plaintiff has failed to demonstrate that the City did not follow the criteria that it established concerning this RIF. The evidence does not demonstrate that the City lacked objective criteria or that it failed to follow the criteria that it established. Plaintiff has failed to point to any evidence that the process used to determine the elimination of her position and her termination was any different from the processes used by the City to eliminate other positions for the RIF. An employer may choose the criteria it wishes to employ to conduct a RIF and “we will not disturb that exercise of [a] defendant’s business judgment.” * * * Ms. Brainard fails to refute the district court’s analysis, or explain why and how the court erred. Ms. Brainard’s only claim is that the “City admits it employed no standard RIF methodology.” * * * We are aware of no such admission by the City; indeed, the record supports the district court’s statement that the City had criteria for implementing its RIF and those criteria in no way support an inference of discrimination. Ms. Brainard provides no citation to the record to support her claim of a lack of standards for implementing the RIF; in fact, her brief is completely devoid of citations to the record to support her claims of materially disputed facts.
In sum, we agree completely with the district court’s rejection of Ms. Brainard’s arguments. We affirm its decision to grant the City’s motion for summary judgment.
[Evidence: The essential elements of the McDonnell Douglas evidentiary framework are discussed at: http://en.wikipedia.org/wiki/McDonnell_Douglas_Corp._v._Green. Note that they are phrased differently for various different kinds of indirect discrimination.]
Wage and Hour: independent contractor – classification limited, federal court certification of state clarification, state ABC test, “suffer and permit”
Jurisdiction: New Jersey
Hargrove et. al. v. Sleepy's, LLC, No A-70-12 (NJSC, 1/14/15):

  • http://www.judiciary.state.nj.us/opinions/supreme/A-70-12HargrovevSleepys.pdf.

  • Ford Harrison law firm article at http://www.fordharrison.com/new-jersey-supreme-court-restricts-ability-to-label-workers-as-independent-contractors.

The plaintiffs worked long hours delivering mattresses and they claimed they were employees entitled to overtime pay, but the company claimed they were independent contractors. They filed in federal court, and the trial court certified the issue of classification to the state supreme court [this methods allows federal courts to obtain clarification on matters of state law]. In this case, the issue was which test the court should apply to determine employment status under New Jersey's WPL and WHL, which NJDOL interprets under the "ABC" test in the New Jersey Unemployment Compensation Act. That test is more restrictive than the FLSA test – an employment relationship is presumed unless the company can show that:



  1. the individual has been and will continue to be free from control or direction over the performance of the services;

  2. such service are either outside the usual course of the business or performed outside of all the places of business of the enterprise; and

  3. such individual is customarily engaged in an independently established trade, occupation, profession or business.


Clerk of court summary:
In this appeal, the Court considers a question of law certified and submitted by the United States Court of Appeals for the Third Circuit pursuant to Rule 2:12A-1. Specifically, the Court decides which test should be applied under New Jersey law to determine whether a plaintiff is an employee or an independent contractor for purposes of resolving a wage-payment or wage-and-hour claim.
Plaintiffs Sam Hargrove, Andre Hall, and Marco Eusebio deliver mattresses ordered by customers from defendant Sleepy’s, LLC. Plaintiffs contend that they suffered various financial and non-financial losses as a result of defendant’s misclassification of them as independent contractors, rather than employees. Plaintiffs each signed an Independent Drive Agreement, which they assert was a ruse by defendant to avoid payment of employee benefits. They contend that the misclassification violates state wage laws.
The question of whether plaintiffs are employees or independent contractors was submitted to the United States District Court for the District of New Jersey on cross motions for summary judgment. That court, applying the factors to be considered in defining an employee under the Employment Retirement Income Security Act (ERISA), held that the undisputed facts demonstrated that plaintiffs were independent contractors.
Plaintiffs filed a notice of appeal. Following oral argument, the Court of Appeals filed a petition with this Court seeking to certify a question of law pursuant to Rule 2:12A - 1. The Court asked: Under New Jersey law, which test should a court apply to determine a plaintiff’s employment status for purposes of the New Jersey Wage Payment Law (WPL), N.J.S.A. 34:11 - 4.1 to - 4.14, and the New Jersey Wage and Hour Law (WHL), N.J.S.A. 34:11 - 56a to - 56a38? This Court granted the petition. 214 N.J. 499 (2013).
HELD: The “ABC” test derived from the New Jersey Unemployment Compensation Act, N.J.S.A. 43:21 - 19(i)(6), governs whether a plaintiff is an employee or an independent contractor for purposes of resolving a wage-payment or wage-and-hour claim.
@@
ADA: type 1 diabetes, accommodation, interactive process, good faith cooperation, mutual obligations
Jurisdiction: First Circuit
EEOC v. Kohl’s Dep’t Stores, Inc., No. 14-1268 (1st Cir., 12/19/14) [enhanced lexis.com version]:

  • http://media.ca1.uscourts.gov/pdf.opinions/14-1268P-01A.pdf.

  • Ogletree Deakins law firm article at http://www.employmentlawmatters.net/2015/01/articles/ada/employee-cannot-claim-lack-of-accommodation-after-quitting-her-job-during-the-interactive-process/.

Both parties must participate in good faith in the accommodation process. As you can see from the half dozen pages of persuasive facts in appellate opinion, her employer had made significant efforts to create a reasonable accommodation for her. Unsatisfied, she quit and walked out, which in the end left her and the agency out of court.


Appellate court summary:
Appellant Equal Employment Opportunity Commission ("EEOC") asserts that Appellee Kohl's Department Stores, Inc. ("Kohl's") refused to provide former employee Pamela Manning ("Manning") with reasonable accommodations in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112. The EEOC also asserts that by failing to comply with the ADA, Kohl's constructively discharged Manning. The district court entered summary judgment in favor of Kohl's on both claims. We affirm.
Wage and Hour: Albuquerque Police Department (APD) overtime compensation schedule - NMSA 1978, § 50- 4-2(A) (2005)
Jurisdiction: New Mexico, Albuquerque
Rainaldi, et al. v. City of Albuquerque, No. 32,059 (NMCA, 5/14/14) [enhanced lexis.com version]:

  • http://www.nmcompcomm.us/nmcases/NMCA/2014/14ca-112.pdf .

  • 2014-NMCA-112.

  • NM 52 SBB 1.13.


Appellate court summary:
{1} In this single issue appeal, we are called upon to resolve a matter of first impression: whether the City of Albuquerque’s (the City) overtime compensation schedule for Albuquerque Police Department (APD) employees violates the statutory time payment provisions required of New Mexico employers. See NMSA 1978, § 50- 4-2(A) (2005) (requiring the designation of regular pay days on at least a semimonthly basis and that compensation for services rendered be postponed no later than ten days after the close of the pay period). The district court granted the City’s motion for summary judgment and dismissed the collective action complaint brought by certain affected APD employees (Plaintiffs), ruling that the City’s two-week processing delay of overtime accrued during the second week of a given bi-weekly pay period complies with Section 50-4-2(A). We hold that the City’s overtime compensation schedule violates the statutory requirement of Section 50-4-2(A) t h at employees be compensated for “all services rendered” within ten days after the close of a given pay period, and that the City is not exempt from compliance. We reverse.
Immigration: H-1B, front-pay denied, new employer
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