Mealey's Employment

  • December 7, 2017

    Split 6th Circuit Panel Rules On Which Staffing Agency Positions Are Exempt

    CINCINNATI — A divided Sixth Circuit U.S. Court of Appeals panel on Nov. 20 issued a decision partially reinstating wage claims brought by staffing agency employees who allege that they were improperly treated as exempt from overtime under the Fair Labor Standards Act (FLSA) (Judith Perry, et al. v. Randstad General Partner [US] LLC, No. 16-1010, 6th Cir., 2017 U.S. App. LEXIS 23297).

  • December 7, 2017

    1st Circuit: No Arbitration Of Wage Dispute Where Worker Didn’t Sign Agreement

    BOSTON — A delivery company has no right to demand arbitration in a proposed class action wage dispute when the lead named plaintiff never signed the agreement containing the arbitration clause the company is now calling upon, a First Circuit U.S. Court of Appeals panel ruled Nov. 21 (Djamel Ouadani, et al. v. TF Final Mile LLC, f/k/a Dynamex Operations East, LLC, No. 17-1583, 1st Cir., 2017 U.S. App. LEXIS 23493).

  • December 7, 2017

    Petitioner To High Court: Abood Must Be Overruled

    WASHINGTON, D.C. — Abood v. Detroit Board of Education, 431 U.S. 209 (1977), “is offensive to the First Amendment” and should be overruled, an employee challenging public-sector agency fees told the U.S. Supreme Court in his Nov. 29 petitioner brief (Mark Janus v. American Federation of State, County and Municipal Employees, Council 31, et al., No. 16-1466, U.S. Sup.).

  • December 7, 2017

    1st Circuit: Paramedic Didn’t Show Her Treatment Created A Hostile Environment

    BOSTON — A paramedic who claims that she was subjected to a hostile work environment failed to show that her timely claims — her employer’s unwillingness to actively pursue a Facebook perpetrator and to reimburse her costs associated with renewing her licenses — were sufficient evidence of a severe or pervasive environment, a First Circuit U.S. Court of Appeals panel ruled Nov. 21 (Maribel Maldonado-Cátala v. Municipality of Naranjito, et al., No. 16-1637, 1st Cir., 2017 U.S. App. LEXIS 23494).

  • December 7, 2017

    U.S. High Court Won’t Review If RLA Or NLRA Governs Fuel Service Provider

    WASHINGTON, D.C. — The U.S. Supreme Court on Nov. 13 denied a petition for writ of certiorari filed by a commercial airline fuel service provider that changed course midway through challenging a unionization attempt by its employees and sought to argue that it is governed by the Railway Labor Act (RLA), not the National Labor Relations Act (NLRA) (Allied Aviation Service Company of New Jersey v. National Labor Relations Board, No. 17-442, U.S. Sup.).

  • December 6, 2017

    10th Circuit Partially Reinstates Supervisor’s Bias Claims For Denied Promotion

    DENVER — A former warehouse supervisor may proceed with claims that he was denied promotion to one of two manager positions in April 2012 based on his race, a 10th Circuit U.S. Court of Appeals panel ruled Nov. 24, reversing in part a district court’s summary judgment ruling for his former employer (Abiodun Sotunde v. Safeway, Inc., No. 16-1494, 10th Cir., 2017 U.S. App. LEXIS 23790).

  • December 6, 2017

    6th Circuit Rejects Board’s Attempt To Protect Leave For Off-Duty Illnesses

    CINCINNATI — A retaliation clause in the Federal Railroad Safety Act (FRSA) located within an amendment regarding “prompt medical attention” does not provide sick leave to railroad employees for off-duty injuries and illnesses, a Sixth Circuit U.S. Court of Appeals panel majority ruled Nov. 20, noting that the Department of Labor’s Administrative Review Board (ARB) continues to try to provide such protection to employees “despite having had its position derailed by every federal court to date” (Grand Trunk Western Railroad Company v. United States Department of Labor, Administrative Review Board, No. 17-3083, 6th Cir., 2017 U.S. App. LEXIS 23279).

  • December 6, 2017

    7th Circuit Won’t Reconsider Ruling In Appeal Over EEOC’s Continued Investigation

    CHICAGO — The Seventh Circuit U.S. Court of Appeals on Nov. 21 denied a petition rehearing en banc filed by Union Pacific Railroad Co. after the appellate panel ruled in August that the Equal Employment Opportunity Commission may continue investigating an employer by seeking enforcement of its subpoena even after issuing a right-to-sue notice to the charging individuals and the dismissal of those individuals’ lawsuit (Equal Employment Opportunity Commission v. Union Pacific Railroad Company, No. 15-3452, 7th Cir., 2017 U.S. App. LEXIS 23644).

  • December 6, 2017

    Split 7th Circuit Denies Rehearing En Banc In EEOC Racial Bias Suit

    CHICAGO — A split Seventh Circuit U.S. Court of Appeals panel on Nov. 21 denied a petition for rehearing en banc in a racial bias lawsuit brought by the Equal Employment Opportunity Commission under a little-used statute on behalf of a sales manager who claimed that he was transferred out of a particular store because he was a different race than the surrounding neighborhood (United States Equal Employment Opportunity Commission v. AutoZone, Inc., et al., No. 15-3201, 7th Cir., 2017 U.S. App. LEXIS 23704).

  • December 6, 2017

    New Jersey Panel OKs Discovery Of Employee Files Without In Camera Review

    TRENTON, N.J. — In light of an existing protective order, a New Jersey appeals panel on Nov. 22 found no error in a trial court’s order compelling production of employee records in a wrongful discharge case without first reviewing them in camera, ruling that the protection of such privacy concerns are determined on a case-by-case basis (Louis Narvaez v. New Jersey Judiciary, Vicinage 4, No. A-3166-16T1, N.J. Super., App. Div., 2017 N.J. Super. Unpub. LEXIS 2920).

  • December 6, 2017

    1st Circuit Panel Finds Muslim School Teacher Failed To Prove Religious Bias

    BOSTON — A school teacher who converted to Islam the same year she began teaching in a Massachusetts city and alleges that more than a decade later she became the target of hostile treatment after she started wearing a headscarf at work failed to show that the city’s reasons for her adverse employment actions were pretext for discrimination, a First Circuit U.S. Court of Appeals panel ruled Dec. 4 (Debra Cherkaoui v. City of Quincy, No. 16-2304, 1st Cir., 2017 U.S. App. LEXIS 24423).

  • December 6, 2017

    Dave & Buster’s $7.4M ERISA Settlement Denied By New York Federal Judge

    NEW YORK — A New York federal judge, in an order filed Dec. 1, declined preliminary approval of a class settlement worth up to $7,425,000 offered by Dave & Buster’s Inc. to end claims that the nationwide restaurant/entertainment chain violated the Employee Retirement Income Security Act by reducing the hours of its work force in 2013 to avoid the costs associated with providing health insurance to its full-time employees in compliance with the Patient Protection and Affordable Care Act (ACA) (Maria De Lourdes Parra Marin v. Dave & Buster’s, Inc., et al., No. 15-3608, S.D. N.Y.).

  • December 5, 2017

    3rd Circuit Overturns Barnes, Issues New Ruling On Seafarers’ Contracts

    PHILADELPHIA — A Third Circuit U.S. Court of Appeals panel of 12 judges on Dec. 4 overruled its decision in Barnes v. Andover Co., L.P. and held that where a seafarer freely enters a union contract, courts may not review that contract piecemeal unless there is evidence that the collective bargaining process was unfair (James L. Joyce v. Maersk Line Ltd., No. 16-3553, 3rd Cir., 2017 U.S. App. LEXIS 24433).

  • December 5, 2017

    Magistrate Approves Modified Settlement Agreement In FLSA Dispute With Franchisor

    ROCHESTER, N.Y.— A federal magistrate judge in New York on Dec. 1 approved employees’ motion for final approval of a modified $1.7 million class action settlement that increased the payout to the class members in a lawsuit alleging that their franchisor and franchisee employers violated the Fair Labor Standards Act (FLSA), further granting the plaintiffs’ motion for attorney fees that awards the attorneys 44 percent less than the original proposal (Adam Cunningham, et al. v. Suds Pizza, Inc., et al., No. 15-6462, W.D. N.Y., 2017 U.S. Dist. LEXIS 198250).

  • December 5, 2017

    U.S. Supreme Court Won’t Rule On USERRA Actions In State Court

    WASHINGTON, D.C. — The U.S. Supreme Court on Dec. 4 denied a petition for writ of certiorari filed by a Virginia state police trooper who claims that he was improperly denied a promotion due to his military service (Jonathan R. Clark v. Virginia Department of State Police, No. 16-1043, U.S. Sup.).

  • December 5, 2017

    U.S. High Court Denies Pro Se Petition By Casino Worker Alleging Harassment

    WASHINGTON, D.C. — A Las Vegas casino worker who filed a second pro se complaint against her employer alleging harassment after her first was dismissed with prejudice failed to convince the U.S. Supreme Court to hear her appeal; her petition was denied Dec. 4 (Adrienne A. Burch v. Bellagio Hotel and Casino, LLC, et al., No. 17-454, U.S. Sup.).

  • December 4, 2017

    6th Circuit Upholds Ruling For GM In Employee’s Religious Bias Suit

    CINCINNATI — An employee who was suspended after allegedly threatening his supervisor failed to show that the employer’s given reason was pretextual and that the real reason was because of his religious beliefs that prevented him from working on Saturdays, his degenerative joint disease and an earlier retaliation claim he filed with the Equal Employment Opportunity Commission, a Sixth Circuit U.S. Court of Appeals panel ruled Dec. 1 (Clayton Pierce v. General Motors LLC, et al., No. 16-2748, 6th Cir., 2017 U.S. App. LEXIS 24344).

  • December 1, 2017

    5th Circuit Upholds Ruling For Landscaping Company Accused Of Retaliatory Firing

    NEW ORLEANS — A landscaping supervisor who alleges that he was terminated after alleging that he was shorted pay failed to show that he engaged in any activities protected by Title VII of the Civil Rights Act of 1964, a Fifth Circuit U.S. Court of Appeals panel ruled Nov. 28, affirming the summary judgment ruling for the employer (Derrick Allen v. Envirogreen Landscape Professionals, Incorporated, No. 16-31247, 5th Cir., 2017 U.S. App. LEXIS 23987).

  • December 1, 2017

    4th Circuit: Airline Agent Failed To Prove Any Bias In His Firing After An Error

    RICHMOND, Va. — An airline ground control agent, who was already on the final level of discipline and contributed to a communication breakdown that led to the overbooking of a plane and resulting delay, was unable to show that his termination was due to age or race discrimination, a Fourth Circuit U.S. Court of Appeals panel ruled Nov. 28 in an unpublished opinion (Michael Tillery v. Piedmont Airlines, Inc., No. 16-2225, 4th Cir., 2017 U.S. App. LEXIS 24074).

  • November 30, 2017

    Arbitration Ordered In Starbucks Barista’s Unpaid Wages Class Suit

    NEW YORK — A New York federal judge on Nov. 17 ordered arbitration of a Starbucks Corp. barista’s claims that she was made to work numerous hours off the clock but denied a motion to dismiss her class and collective claims because no motion for class or collective certification is pending (Ebony Armstead v. Starbucks Corporation, No. 17-1163, S.D. N.Y., 2017 U.S. Dist. LEXIS 190748).