Mealey's Employment
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October 18, 2018
Native American Worker Loses Race Bias Claim On Summary Judgment
ALBUQUERQUE, N.M. — A medical officer candidate at an Indian hospital failed to show that he was fired because he is Native American or that the reasons for his firing were merely pretext for racial discrimination, a New Mexico federal judge held Oct. 15 in awarding summary judgment to the candidate’s employer (Calbert Lee v. Sylvia Mathews Burwell, No. 16-366, D. N.M., 2018 U.S. Dist. LEXIS 176719).
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October 17, 2018
Pennsylvania Federal Judge Denies Sanctions Request In Wage Class Suit
PHILADELPHIA — An employer’s decision to continue requiring new employees to sign arbitration agreements, agreements that would preclude them from becoming part of a class in a pending wage-and-hour complaint, does not constitute misleading or confusing behavior, a Pennsylvania federal judge ruled Oct. 4, denying a motion for sanctions (Nancy Gauzza, et al. v. Prospect Medical Holdings, Inc., et al., No. 17-3599, E.D. Pa., 2018 U.S. Dist. LEXIS 172159).
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October 17, 2018
Home Health Care Workers’ Overtime Claims Based On Regulation Changes Are Settled
CINCINNATI — Home Care Network Inc., an employer accused of failing to change how it paid its home health care workers after the U.S. Department of Labor (DOL) regulations changed on Jan. 1, 2015, will pay $113,224.67 to settle overtime class claims, according to a settlement agreement granted final approval by an Ohio federal judge on Oct. 3 (Rhonda Dillow v. Home Care Network, Inc., et al., No. 16-612, S.D. Ohio, 2018 U.S. Dist. LEXIS 170579).
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October 16, 2018
Supreme Court Declines 2 Out-Of-Time Employment- Related Petitions
WASHINGTON, D.C. — The U.S. Supreme Court issued orders on Oct. 15 in which it denied two motions seeking to file petitions for writ of certiorari out of time in two employment-related cases; one was a slander and defamation suit and the other alleged discrimination.
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October 15, 2018
3 Of 4 Subclasses Certified In Loan Officers’ Suit Alleging Off-The-Clock Work
SEATTLE — Current and former loan officers may proceed with collective and class claims for all but one proposed subclass, a Washington federal judge ruled Oct. 10, finding that class certification requirements were met for three of four proposed subclasses in a complaint alleging that they were denied pay for off-the-clock work (Kelly Bolding, et al. v. Banner Bank, No. 17-601, W.D. Wash., 2018 U.S. Dist. LEXIS 174510).
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October 12, 2018
College’s Refusal To Hire Retirees Deemed Not Biased By 7th Circuit
CHICAGO — An Illinois college’s decision to no longer hire retired state employees who were collecting annuities based on a change in law that imposed a penalty on covered employers did not constitute age discrimination or retaliation because the reason for the decision was one not based on age, a Seventh Circuit U.S. Court of Appeals panel ruled Oct. 11 (Barry Dayton v. Oakton Community College, et al., No. 18-1668, 7th Cir., 2018 U.S. App. LEXIS 28674).
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October 12, 2018
Wal-Mart Agrees To Pay $65 Million To Settle Cashier Seating Class Suit
SAN JOSE, Calif. — Wal-Mart Stores Inc. has agreed to pay $65 million and launch a “Seating Pilot Program,” which will provide seating to its cashiers, to end more than nine years of litigation over the retailer’s failure to provide seats, according to a motion for preliminary approval of the settlement filed Oct. 10 in the U.S. District Court for the Northern District of California (Nisha Brown, et al. v. Wal-Mart Stores, Inc., et al., No. 09-3339, N.D. Calif.).
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October 11, 2018
Evidence Of Perception Of Disability Saves Delivery Driver’s Bias Claims
HONOLULU — A Ninth Circuit U.S. Court of Appeals panel on Sept. 17 reinstated disability bias claims by a former delivery driver who alleges that he was denied a job transfer and then terminated based on a shoulder injury, finding that the driver presented a genuine issue of material fact as to whether he was regarded as disabled and that the trial court relied on case law that predated the ADA Amendments Act (ADAAA) (Herman N. Nunies v. HIE Holdings, Inc., No. 16-16494, 9th Cir., 2018 U.S. App. LEXIS 26221).
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October 11, 2018
5th Circuit Finds No Bad Faith When Union Delayed, Stopped Grievance Process
NEW ORLEANS — A union that investigated a member’s grievance for two years, made several requests to mediate with the employer and then delayed arbitration before ultimately deciding not to pursue the arbitration did not act arbitrarily or in bad faith, a Fifth Circuit U.S. Court of Appeals panel ruled Oct. 2, finding that there were “good-faith” reasons for the delay and that union members don’t have an “absolute right” to have the union take their grievances to arbitration (George W. Davis, IV v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied, Industrial and Service Workers International Union, Local Number 13-423, No. 18-40259, 5th Cir., 2018 U.S. App. LEXIS 27905).
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October 11, 2018
Double Liquidated Damages In Workers’ Wage Suit Is Barred, 2nd Circuit Rules
NEW YORK — A request for liquidated damages under both federal and state law by restaurant workers who successfully argued their wage-and-hour claims is foreclosed by a recent decision in Rana v. Islam, a Second Circuit U.S. Court of Appeals panel ruled Oct. 1 (Valentin Tapia, et al. v. BLCH 3rd Ave LLC, et al., No. 17-2718, 2nd Cir., 2018 U.S. App. LEXIS 27768).
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October 11, 2018
2nd Circuit: Car Service Drivers Fall Under FLSA’s Taxicab Exemption
NEW YORK — Drivers employed by a New York car service company are not owed overtime wages because they fall within the Fair Labor Standards Act (FLSA) taxicab exemption, a Second Circuit U.S. Court of Appeals panel ruled Sept. 19, affirming a ruling by a trial court (Alejandro Munoz-Gonzalez, et al. v. D.L.C. Limousine Service, Inc., et al., No. 17-2438, 2nd Cir., 2018 U.S. App. LEXIS 26628).
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October 10, 2018
2nd Circuit: Janitor Fails To Show Reduction In Hours Was Retaliation For Leave
NEW YORK — A Second Circuit U.S. Court of Appeals panel on Oct. 5 affirmed a summary judgment ruling for a janitorial company on claims of disability discrimination, ruling that a worker whose hours were cut failed to show that the reason given — too many tardies and absences — was pretextual (Rosario Mejia v. Roma Cleaning, Inc., et al., No. 17-3446, 2nd Cir., 2018 U.S. App. LEXIS 28235).
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October 10, 2018
7th Circuit Upholds $250,000 Workplace Harassment Award, Remands Back Pay Request
CHICAGO — An Illinois federal court did not err in affirming a jury’s $250,000 compensatory damages award for a retail employee who alleges that her employer failed to properly respond to her complaints about a customer stalking her, but the trial court must consider on remand whether the employee is owed back pay (Equal Employment Opportunity Commission v. Costco Wholesale Corporation, Nos. 17-2432 and 17-2454, 7th Cir., 2018 U.S. App. LEXIS 25539).
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October 10, 2018
8th Circuit: Nuclear Plant Worker’s Disability Bias Claim Is Preempted
ST. PAUL, Minn. — Claims under Minnesota law by a former Minnesota nuclear power plant worker who alleges that he was placed on leave and required to undergo numerous tests and exams because he was perceived as an alcoholic are preempted by the Labor Management Relations Act (LMRA), an Eighth Circuit U.S. Court of Appeals panel ruled Sept. 14, affirming a denial of remand and a grant of judgment on the pleadings to the employer (Wade Boldt v. Northern States Power Company, No. 17-2231, 8th Cir., 2018 U.S. App. LEXIS 26053).
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October 10, 2018
Only Church Music Director’s Disability Bias Claim Survives Ministerial Exception
CHICAGO — A church music director’s claims of hostile work environment based on his sexual orientation, gender and marital status are all barred under the First Amendment to the U.S. Constitution’s “ministerial exception,” but he may proceed with his claim based on his disability, an Illinois federal judge ruled Sept. 30 (Sandor Demkovich v. St. Andrew the Apostle Parish Calumet City, et al., No. 16-11576, N.D. Ill., 2018 U.S. Dist. LEXIS 168584).
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October 9, 2018
3rd Circuit: No Retaliation Proof In Civil Servant’s Suit Against Nursing Home
PHILADELPHIA — A New Jersey nursing home civil servant who experienced a number of changes in her job responsibilities during her employment and who twice was denied two new positions, but whose title remained the same, failed to show retaliation, a Third Circuit U.S. Court of Appeals panel ruled Oct. 5 (Nicole D. D’Ambrosio v. Crest Haven Nursing & Rehabilitation Center, No. 16-3936, 3rd Cir., 2018 U.S. App. LEXIS 28261).
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October 9, 2018
2nd Circuit Reinstates Sales Reps’ Overtime Claims Based On Primary Duties
NEW YORK — When evidence is construed in the light most favorable to two sales representatives suing for unpaid overtime, it appears that their primary duties were actually installations and not sales, a Second Circuit U.S. Court of Appeals panel ruled Oct. 4, vacating summary judgment for their employer on overtime claims (Jeffrey Sydney, et al. v. Time Warner Entertainment-Advance/Newhouse Partnership, No. 17-1219, 2nd Cir., 2018 U.S. App. LEXIS 28097).
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October 5, 2018
EEOC’s Preliminary Data Shows Large Increase In Sexual Harassment Suits
WASHINGTON, D.C. — The Equal Employment Opportunity Commission released its preliminary fiscal year 2018 sexual harassment data, showing a 50 percent increase in sexual harassment lawsuits filed when compared to fiscal year 2017.
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October 5, 2018
10th Circuit Reinstates Labor Secretary’s Suit Over Jani-King Franchises
DENVER — The U.S. secretary of Labor stated a facially plausible claim for relief to proceed with his lawsuit accusing Jani-King of Oklahoma Inc. of having an employer-employee relationship under the Fair Labor Standards Act (FLSA) with its franchisees and requesting that Jani-King be required to keep necessary employee records, the 10th Circuit U.S. Court of Appeals ruled Oct. 3, reversing a trial court’s dismissal with prejudice (R. Alexander Acosta v. Jani-King of Oklahoma, Inc., No. 17-6179, 10th Cir., 2018 U.S. App. LEXIS 27984).
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October 4, 2018
Franchisor Cannot Be Held Liable As Joint Employer, New York Federal Judge Says
NEW YORK — A New York federal judge on Sept. 30 granted a franchisor’s motion for summary judgment after determining that the plaintiffs in three consolidated cases failed to prove that the franchisor should be held liable as a joint employer for wage-and-hour violation claims (In re Domino’s Pizza, No. 16-2492, S.D. N.Y., 2018 U.S. Dist. LEXIS 169607).