Latest Labor and Employment Cases for April 26, 2018

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

Interference

A casino owned by the Pauma Band of Mission Indians and located on the tribe’s reservation in California must comply with an order by a federal labor board requiring it to permit the distribution of union literature in its nonworking public or guest areas. Although federal labor law is silent as to whether it applies to Indian tribes, the labor board reasonably construed it to apply to tribal employers, and the board’s approach isn’t precluded by federal Indian law, the court said (Pauma v. NLRB, 2018 BL 147457, 9th Cir., No. 16-70397, 4/26/18).

Arbitration

An arbitration award reinstating a nuclear power plant employee—who was discharged after he improperly disposed of several mop heads containing traces of enriched uranium—didn’t violate public policy, and an arbitrator didn’t exceed his authority when he construed a labor contract to permit him to modify the employee’s discipline. The arbitrator found that the penalty of discharge was too severe for a 13-year employee with only two other mistakes in his record. The company had waived is argument that the labor contract restricts the arbitrator’s ability to craft a remedy, and the contract didn’t say that all violations of safety rules have to result in firing, the court said (Nuclear Fuel Servs., Inc. v. United Steel, 2018 BL 145842, E.D. Tenn., 2:16-cv-00315, 4/25/18).

WAGE & HOUR

Settlement Agreements

A New York telecommunications marketing company can pay $15,000 to settle an ex-employee’s claim that he was fired in retaliation for joining with other workers in filing a wage action, because a settlement that nets him $10,000 after one-third is deducted for attorneys’ fees is reasonable in view of the expense and risk of litigation given that the company says that the only reason he was fired was his failure to return to work from unpaid medical leave. That the agreement contains a general release isn’t a barrier to settlement in this case, because the employee hasn’t worked for the company in over two years and the releases are mutual (Zheng v. Cromex, Inc., 2018 BL 146314, S.D.N.Y., No. 17 Civ. 0168 (HBP), 4/25/18).

Arbitration

A Washington, D.C. cosmetology student has to arbitrate her class action claim that students were used as unpaid employees and so not paid minimum wage, because the arbitration agreement she signed when she enrolled clearly says that an arbitrator, rather than a court, should answer the question of whether the agreement’s waiver of class claims is lawful (Sakyi v. Estée Lauder Cos., 2018 BL 146100, D.D.C., No. 17-1863 (BAH), 4/25/18).

Costs

Nebraska truck drivers owe $15,840 in costs after a jury rejected their class action claim for pay while logged into sleeper berths during new driver training, even though the drivers won substantial damages on another claim for pay earned during short rest breaks, because the trucking company did win on the sleeper-berth claim and the drivers didn’t ask for costs on their successful claim (Petrone v. Werner Enters., Inc., 2018 BL 146382, D. Neb., 8:11CV401 8:12CV307, 4/25/18).

Collective Certification

A student loan servicing company employee can go ahead with his collective action seeking unpaid overtime only for call center representatives, regardless of title, who weren’t paid for logging into their computers and other off-the-clock work, because while those workers shared a common timekeeping system and work requirements, there are too many unique circumstances to support group claims in regard to meal breaks and workers who had more autonomy (Peterson v. Nelnet Diversified Sols, LLC, 2018 BL 145968, D. Colo., 17-cv-01064-NYW, 4/25/18).

Wage Statements

A restaurant and bar in the Bronx owes a worker the maximum $5,000 in damages for failing to provide wage statements for over a year as required under the New York labor law, but the workers’ minimum wage and overtime claims under federal and state laws failed because he wasn’t a credible witness as to how much he worked (Java v. El Aguila Bar Rest. Corp., 2018 BL 146415, S.D.N.Y., 16-CV-6691 (JLC), 4/25/18).

FMLA Interference/Retaliation

An aluminum refinery employee in Louisiana can’t go ahead with his claim that he was fired due to his use of Family and Medical Leave Act leave to care for his ailing mother, because three days of company surveillance showed that he went to his mother’s nursing home only once for 40 minutes and he readily admitted that he visited his mother only four or five times for less than an hour while on FMLA leave and that he was “sure he could have” worked while supporting his mother (Cappel v. Almatis Burnside, LLC, 2018 BL 145905, E.D. La., 17-4822 SECTION N (3), 4/25/18).

FMLA Interference

A California state employment development agency employee can argue at trial her Family and Medical Leave Act interference claim that the requirement that she report by 12:30 to an office 100 miles from her home discouraged her from taking approved leave to care for her ailing father, because a jury has to resolve questions about the terms of her FMLA leave and whether the agency tried to stop her from taking that leave (Aguirre v. California, 2018 BL 146854, N.D. Cal., 16-CV-05564-HSG, 4/25/18).

DISCRIMINATION

Hiring

A jury should have been allowed to deliberate on a claim by a black job applicant that the Home Depot rescinded his job offer because of his race. The trial court wrongly excluded a manager’s alleged statement that “some African Americans are rabble rousers,” the offer was pulled only three days after it was made, the position was filled by a white employee who transferred from another department, and the black applicant was never given a reason for the decision, the court said (Thomas v. Home Depot USA, Inc., 2018 BL 146025, 11th Cir., 17-11380, unpublished 4/25/18).

Exhaustion of Remedies

An ARUP Laboratories employee’s age-discrimination claim was properly rejected because he failed to raise it in his EEOC charge. The employee did mention age discrimination in his EEOC intake questionnaire, but the court refused to read the allegations from the questionnaire into the charge (Hankishiyev v. Arup Labs., 2018 BL 146020, 10th Cir., 17 -4146, unpublished 4/25/18).

Discharge

A black employee wasn’t entitled to a trial on her claims that she was fired because of her race. The appellate court rejected her arguments that the trial court mistakenly refused to take into account or properly credit her evidence that there was racial tension in the workplace, that she was treated less favorably than non-black co-workers, and that the termination procedures used by her employer indicated that her firing was racially motivated (Collins v. Charleston Place, LLC, 2018 BL 146045, 4th Cir., 17-1961, unpublished 4/25/18).

Hostile Work Environment

A Taiwanese-American female assistant regional security officer may proceed with her claim that the U.S. Department of State subjected her to a hostile work environment because of her sex and race. Although the assistant failed to exhaust her administrative remedies for events that occurred before September 18, 2012, these events may be linked to a continuing hostile work environment claim or be used as background evidence for the claim she timely filed, the court said (Chien v. Sullivan, 2018 BL 146689, D.D.C., 16-cv-01583 (APM), 4/25/18).

Retaliation

An analyst from Iran didn’t show that Boeing Co. in Washington laid him off during a reduction in force in retaliation for complaining about national origin and racial discrimination. The analyst’s position was eliminated because his work performance was ranked 22 out of the 24 analysts in his region and he didn’t show that his complaint was a factor in the ranking or elimination decisions, the court said (Shokri v. The Boeing Co., 2018 BL 146577, W.D. Wash., C16-1132 RSM, 4/25/18).

Hostile Work Environment

Among several issues involved in a transgender employee’s suit against an Ohio construction company, the court determined that she could proceed with a hostile work environment claim based on sex. Having allegedly faced derogatory comments and jokes during her gender transition, as well as a sexual assault, after which she was mocked for her role in the aggressor’s firing, the court concluded that she sufficiently plead her case, despite calling it a “closer case than some” (Parker v. Strawser Constr., Inc., 2018 BL 146501, S.D. Ohio, 2:17-cv-541, 4/25/18).

Relief from Judgments

After a court held in favor of Strategic Restaurants Acquisition Co. LLC in an employee’s case involving age discrimination and retaliation, the court decided to deny the employee’s request for relief from one of two judgments, which awarded the company attorneys’ fees. In weighing several factors, the court found that the employee had not acted within a reasonable period of time, waiting more than a year before filing this motion, and that other considerations like the “desirability of finality in judgments” weighed against granting relief (Pickney v. Strategic Rests. Acquisition Co., 2018 BL 146542, W.D. La., 16-0211, 4/25/18).

Retaliation

A black fired employee of the Department of Health and Human Services wasn’t entitled to trial against the department on a claim of retaliation stemming from complaints regarding race discrimination. Examining, one by one, the alleged retaliatory actions, including the employee’s not being selected for a contracting director position, and having his team lead duties revoked, the court concluded that none of the department’s conduct gave rise to an inference of discriminatory pretext, because the evidence showed that the department acted in an unbiased way (Battle v. Price, 2018 BL 146527, D. Md., PWG-14-2250, 4/25/18).

Front Pay

After deciding an age-discrimination case in favor of a fired employee of the Jefferson County Board of Commissioners in Kansas, a court concluded it would be proper to grant his request for front pay. Since the jury had rejected the county’s argument that the employee didn’t mitigate his damages, and found he would have remained employed until trial, the court found it reasonable to assume that he would have been employed an additional nine months, and came to an amount by subtracting the pay from his new employer from what he was making with the county (Hubbard v. Jefferson Cty. Bd. of Comm’rs, 2018 BL 146263, D. Kan., 16-cv-2444-CM, 4/25/18).

Hiring

A black teacher, who wasn’t rehired by South Central Kansas Education Service Center after his contract wasn’t renewed during a reduction in force, couldn’t show the center made its decision based on his race. He didn’t demonstrate that being fired for a lack of social studies or science certification, was actually a pretext for race discrimination, because, while he possessed the minimum qualifications for the position, he didn’t have the “preferred” qualifications, and the center’s failure to follow its policy didn’t point to bias (Brown v. South Cent. Kan. Educ. Serv. Ctr., 2018 BL 145818, D. Kan., 16-1314-EFM, 4/25/18).

DISABILITIES

Excluded Conditions

A transgender truck driver for an Ohio construction company can’t show that her gender dysphoria was a disability for purposes of her discrimination claims, because federal disability law explicitly states that gender identity disorders unrelated to a physical impairment are not considered disabilities, and her contention that people with gender dysphoria exhibit differences in brain structure doesn’t necessarily support that her gender dysphoria is related to a physical impairment (Parker v. Strawser Constr., Inc., 2018 BL 146501, S.D. Ohio, 2:17-cv-541, 4/25/18).

Estoppel

A former bar attendant for an Illinois Marriott hotel may move forward with his claim that the company refused to rehire him in retaliation for filing a disability discrimination lawsuit, because even though he claimed retaliation in his previous lawsuit, the present retaliation claim is based on different retaliatory activity (Schindler v. Marriott Int’l, Inc., 2018 BL 146210, N.D. Ill., 17 C 5805, 4/25/18).

Reasonable Accommodation

An employee of the New York City Health and Hospitals Corp. with a psychological impairment didn’t give sufficient information to support his claim that he could have performed his job if the corporation granted him short-term leave, because he didn’t request a specific length of time off, and he didn’t show how the leave would allow him to recover enough to resume his job (Spillers v. N.Y.C. Health & Hosp. Corp., 2018 BL 146463, E.D.N.Y., 15-CV-6472 (PKC) (JO), 4/25/18).

INDIVIDUAL EMPLOYMENT RIGHTS

Due Process

A Nebraska public school employee fired for inability to work with other employees—after he felt hostility even though he’d been cleared of any inappropriate conduct with a student—wasn’t deprived of due process. He says the school board was biased because it knew of the prior incident, and that any evidence outside his current contract period shouldn’t have been considered, but a school board can consider all relevant conduct when deciding to end a contract and he didn’t overcome the presumption of impartiality (Robinson v. Morrill Cty. Sch. Dist., 2018 BL 147270, Neb., S-17-216, 4/26/18).

Public Employees

The Susquehanna Township School District in Pennsylvania doesn’t have to rehire a superintendent who filed a federal complaint alleging that she was forced to quit after being physically intimidated and verbally harassed by district board members. The superintendent says that a state statute required the district to give her notice and a hearing before ending her employment, but she voluntarily quit and the statute only applies to employees being fired for cause (Kegerise v. Delgrande, 2018 BL 147251, Pa., 22 MAP 2017, 4/26/18).

Noncompete Agreements

A district court will modify Edgewood Partners Insurance Center’s temporary restraining order, to stop its former broker from soliciting its clients, to exclude 37 customers that he recruited and developed on his own. However, Edgewood may enforce restrictive covenants assigned to it against another broker because the assignment isn’t dependent on him being employed with the insurance brokerage (Hall v. Edgewood Partners Ins. Ctr., Inc., 2018 BL 146920, N.D. Ohio, No. 3:17-cv-821, 4/25/18).

Public Policy

A terminal manager and field supervisor for United Refining Co. in Pennsylvania can’t proceed with his claim that he was wrongfully fired for reporting safety and environmental regulation violations to his supervisors. The supervisor can’t show that United actually violated any laws, or that any state statute protected him from being fired (Hare v. United Ref. Co., 2018 BL 146146, W.D. Pa., 17-33, 4/25/18).

Contracts

An adjunct instructor can’t proceed with his claim alleging that Southern University of New Orleans breached an implied contract when it added classes to his teaching schedule without increasing his pay. The instructor was paid based on the terms he agreed to, his employment agreement allowed for the university to add classes to his schedule, and he hasn’t shown that it intended to pay him as a full-time instructor (Okuarume v. Southern Univ. of New Orleans, 2018 BL 146703, La. Ct. App., 4th Cir., 2017-CA-0897, 4/25/18).

CLASS & COLLECTIVE ACTIONS

Arbitration

A Washington, D.C. cosmetology student has to arbitrate her class action claim that students were used as unpaid employees and so not paid minimum wage, because the arbitration agreement she signed when she enrolled clearly says that an arbitrator, rather than a court, should answer the question of whether the agreement’s waiver of class claims is lawful (Sakyi v. Estée Lauder Cos., 2018 BL 146100, D.D.C., No. 17-1863 (BAH), 4/25/18).

Costs

Nebraska truck drivers owe $15,840 in costs after a jury rejected their class action claim for pay while logged into sleeper berths during new driver training, even though the drivers won substantial damages on another claim for pay earned during short rest breaks, because the trucking company did win on the sleeper-berth claim and the drivers didn’t ask for costs on their successful claim (Petrone v. Werner Enters., Inc., 2018 BL 146382, D. Neb., 8:11CV401 8:12CV307, 4/25/18).

Collective Certification

A student loan servicing company employee can go ahead with his collective action seeking unpaid overtime only for call center representatives, regardless of title, who weren’t paid for logging into their computers and other off-the-clock work, because while those workers shared a common timekeeping system and work requirements, there are too many unique circumstances to support group claims in regard to meal breaks and workers who had more autonomy (Peterson v. Nelnet Diversified Sols, LLC, 2018 BL 145968, D. Colo., 17-cv-01064-NYW, 4/25/18).