{"id":49,"date":"2019-12-09T18:16:39","date_gmt":"2019-12-09T18:16:39","guid":{"rendered":"https:\/\/www.fedbar.org\/labor-employment-law-section\/\/march-2018\/"},"modified":"2019-12-09T18:16:39","modified_gmt":"2019-12-09T18:16:39","slug":"march-2018","status":"publish","type":"page","link":"https:\/\/www.fedbar.org\/labor-employment-law-section\/le\/circuit-updates\/2018-2\/march-2018\/","title":{"rendered":"March 2018"},"content":{"rendered":"

Supreme Court<\/span><\/strong><\/p>\n

Encino Motorcars, LLC v. Navarro<\/em>, 138 S. Ct. 1134 (2018).<\/strong>\n<\/p>\n

Encino Motorcars, LLC (\u201cEncino\u201d) is a Mercedes-Benz dealership in California. Service advisors sued Encino under the Fair Labor Standards Act (FLSA) for failing to pay them overtime. Service advisors interact with customers and sell them services for their vehicles. Service advisors work regular 11-hour shifts, for a weekly minimum of 55 hours and are compensated on a pure commission basis.<\/p>\n

\nSince 1966, the FLSA had been understood to exempt service advisors from the overtime-pay requirement. The FLSA overtime-pay requirement does not apply to, \u201cany salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles.\u201d In 2011, however, the Department of Labor reversed its interpretation by issuing a rule that interpreted \u201csalesman\u201d to exclude service advisors. That rule is what prompted this litigation.\n<\/p>\n

\nThe Supreme Court reversed the decision of the Ninth Circuit, and held that a service advisor is obviously a \u201csalesman\u201d and relied on the word\u2019s ordinary meaning because it is not defined in the statute. The Court also reasoned that service advisors are \u201cprimarily engaged in . . . servicing automobiles\u201d as required for the exemption. Although service advisors do not physically repair automobiles, they are integrally engaged in the servicing process. ,p>
\nThe Court rejected the principle that exemptions to the FLSA should be construed narrowly. Justice Thomas, writing for the 5\u20134 majority, concluded that the FLSA gives no textual indication that its exemptions should be construed narrowly, so there is no reason to give them anything other than a fair (rather than a narrow) interpretation. The narrow-construction principle relies on the flawed premise that the FLSA pursues its remedial purpose at all costs. The exemptions to the FLSA are as much a part of the FLSA\u2019s purpose as the overtime-pay requirement, and the exemptions must be given a fair reading.<\/p>\n

\n
\nSubmitted by:<\/strong>
Heather R. Bredeson<\/strong><\/a>
\nSeaton, Peters & Revnew, P.A.
\n7300 Metro Blvd, Suite 500
\nMinneapolis, MN 55439
\n952-896-1700
hbredeson@seatonlaw.com<\/a> \u00a0 <\/p>\n

Second Circuit<\/span><\/strong><\/p>\n

\nPenn v. New York Methodist Hospital<\/em>, 884 F.3d 416 (2d Cir. 2018).<\/strong>\n<\/p>\n

The ministerial exception under Title VII precludes plaintiff, a duty chaplain at a private hospital, from proceeding with his discrimination claim because the hospital remains a religious institution for purposes of this exception. The Supreme Court endorsed the ministerial exception in Hosanna-Tabor Evangelical Lutheran Church v. EEOC<\/em>, 565 U.S. 171 (2012), and the Second Circuit applied that ruling for the first time in an extended way in Fratello v. Archdiocese of New York<\/em>, 863 F.3d 190 (2d Cir. 2017). Under the exception, courts are not permitted to second-guess the hiring and firing decisions of religious entities when it comes to employees whose job duties take on ministerial functions, even if their formal job title is not minister. In this case, while the plaintiff was a duty chaplain, the focus is on the employer: whether the New York Methodist Hospital can invoke the ministerial exception. As the hospital\u2019s name would suggest, it originally operated as an explicitly religious institution. That is no longer the case, although \u201cvestiges of NYMH\u2019s religious heritage remain, as \u201cits Methodist influence can still be seen in the hospital,\u201d which \u201chas retained significant aspects of its religious heritage\u201d by, for example, telling employees during orientation that \u201cpatients are human beings who are created in the image of God.\u201d The hospital\u2019s Department of Pastoral Care endeavors to provide an \u201cecumenical program of pastoral care\u201d to patients and to \u201csee that the needs of the whole person \u2014 mind and spirit as well as body \u2014 are met.\u201d<\/p>\n

\n<\/em><\/strong><\/p>\n

Brown v. Halpin<\/em>, 885 F.3d 111 (2d Cir. 2018).<\/strong><\/p>\n

\nA lawyer who works for the Connecticut comptroller, providing legal advice to the retirement commission, may proceed with First Amendment retaliation claim arising from her whistleblowing that exposed the state\u2019s failure to comply with rules governing disability benefits, i.e., that disabled state employees were receiving benefits even if they could work other positions. While the Supreme Court held in Garcetti v. Ceballos<\/em>, 547 U.S. 410 (2006), that public employees do not engage in protected speech if they speak pursuant to their official job duties, the trial court held that \u201cthe pleadings do not admit that Brown is under an employment obligation to report misconduct to the Auditors.\u201d The Court of Appeals lacks jurisdiction to resolve this appeal because \u201cthe question of whether Halpin is entitled to qualified immunity is . . . not a pure question of law that can be decided on interlocutory appeal because it depends on resolution of a factual dispute: whether the proposed revisions [to Brown\u2019s memo on proper operation of the program] were false.\u201d The Court also holds the interlocutory appeal is inappropriate because factual considerations govern whether Brown spoke pursuant to her duties. In fact, the Court says, \u201cBrown\u2019s written job responsibilities are sufficiently ambiguous that we cannot resolve this dispute on appeal.\u201d<\/p>\n

\n
\nSubmitted by:<\/strong>
Stephen Bergstein<\/strong><\/a>, Esq.
\nBergstein & Ullrich, LLP
\n5 Paradies Lane
\nNew Paltz, New York 12561
\n(845) 419-2250
www.TBULaw.com<\/a> \u00a0
www.secondcircuitcivilrights.blogspot.com<\/a>\u00a0\u00a0\n<\/p>\n

Fifth Circuit<\/span><\/strong><\/p>\n

\nChamber of Commerce of United States of America v. United States Department of Labor<\/em>, 885 F.3d 360 (5th Cir. 2018).<\/strong>\n<\/p>\n

Three business groups brought suit against the Department of Labor (\u201cDOL\u201d) challenging the \u201cFiduciary Rule\u201d promulgated in April 2016. The groups challenged the Rule on multiple grounds, including (a) inconsistency with the governing statutes; (b) DOL\u2019s exceeding its authority; (c) DOL\u2019s imposition of legally unauthorized contract terms to enforce the new regulations; (d) First Amendment violations; and (e) arbitrary and capricious treatment of variable and fixed indexed annuities. The district court rejected all of the arguments and issued summary judgment in favor of the DOL. On appeal, the Fifth Circuit found merit in the argument and vacated the Rule.<\/p>\n

\nBeginning with the text of ERISA, the court noted that Title I confers the DOL with far-reaching regulatory authority over employer- or union-sponsored retirement and welfare benefit plans. 29 U.S.C. \u00a7\u00a7 1108(a)-(b), 1135. A \u201cfiduciary\u201d to a Title I plan is subject to duties of loyalty and prudence, and may not engage in several \u201cprohibited transactions,\u201d including transactions in which the fiduciary receives a commission paid by a third party or compensation that varies based on the advice provided. 29 U.S.C. \u00a7\u00a7 1104(a)(1)(A)-(B) & 1106(b)(3). Title II created tax-deferred personal IRAs and similar accounts within the Internal Revenue Code (26 U.S.C. \u00a7 4975(e) (1)(B)), but did not authorize DOL to supervise financial service providers to IRAs in parallel with its power over ERISA plans. Unlike ERISA plan fiduciaries, fiduciaries to IRAs are not subject to statutory duties of loyalty and prudence. Instead, the Treasury Department, through the IRS, may impose an excise tax on \u201cprohibited [i.e. conflicted] transactions\u201d involving fiduciaries of both ERISA retirement plans and IRAs, and the DOL could only grant exemptions from the prohibited transactions provision and \u201cdefine accounting, technical and trade terms\u201d that appear in both laws. 26 U.S.C. \u00a7 4975 (a), (b), (c)(2), (f)(8)(E); 29 U.S.C. \u00a7\u00a7 1108(a) & 1135. Thus, in Title I, fiduciaries are subject to comprehensive DOL regulation, while in Title II individual plans, they are subject to the prohibited transactions provisions.\n<\/p>\n

\nThe DOL promulgated regulations in 1975 setting forth a five-part test for determining who is a fiduciary under the investment-advice subsection, which echoed the distinction between an \u201cinvestment adviser,\u201d who is a fiduciary regulated under the Investment Advisers Act, and a \u201cbroker or dealer\u201d whose advice is \u201csolely incidental to the conduct of his business as a broker or dealer and who receives no special compensation therefor.\u201d 15 U.S.C. \u00a7 80b-2(a)(11)(C). Under the DOL\u2019s original regulation, a fiduciary relationship would exist only if, inter alia, the adviser\u2019s services were furnished \u201cregularly\u201d and were the \u201cprimary basis\u201d for the client\u2019s investment decisions. 29 C.F.R. \u00a7 2510.3-21(c)(1) (2015). As the use of participant-driven IRAs mushroomed and baby-boomers retired and rolled their ERISA plans accounts into IRAs, individual, less-sophisticated investors were subject to persuasion to engage in transactions that were not in their best interests because advisers (i.e., broker and dealers and insurance professionals) have conflicts of interests in the sales to these individual investors.\n<\/p>\n

\nIn 2016, the DOL\u2019s promulgated the Fiduciary Rule, which broadly reinterpret the term \u201cinvestment advice fiduciary\u201d and redefines exemptions to provisions concerning fiduciaries that appear in the ERISA and Internal Revenue Code with the stated purpose of regulating hundreds of thousands of financial service providers and insurance companies in the trillion dollar markets for ERISA plans and individual retirement accounts (IRAs) in a new way. Among other things, the new Rule dispenses with the \u201cregular basis\u201d and \u201cprimary basis\u201d criteria, encompassing virtually all financial and insurance professionals who do business with ERISA plans and IRA holders, adopts a \u201cBest Interest Contract Exemption\u201d (\u201cBICE\u201d), which allows \u201cinvestment advice fiduciaries\u201d to avoid prohibited transactions penalties, and subjects formerly exempt transactions to the same standards as in the BICE, including fixed-rate annuities but not fixed indexed annuities.\n<\/p>\n

\nThe Fifth Circuit thoroughly analyzed whether the Fiduciary Rule conflicts with the statutory text, refusing to accept the DOL\u2019s reliance on the \u201cpurpose\u201d of ERISA in light of its complex and detailed provisions. After concluding that the DOL lacked authority to adopt its overreaching definition of \u201cinvestment advice fiduciary,\u201d the court assumed arguendo that there was some ambiguity in the statute and proceeded to review the Rule under the \u201creasonableness\u201d test of Chevron, U.S.A., Inc. v. N.R.D.C., Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and the Administrative Procedures Act, 5 U.S.C. \u00a7 706(2)(A). The court found that the Rule competitively disadvantaged certain annuities that the DOL deemed unsuitable for IRA investors and it disregarded the common law trust and confidence standard without holistically accounting for other statutory language. The Rule also ignored ERISA\u2019s distinction between DOL\u2019s authority over ERISA employer-sponsored plans and individual IRA accounts in Titles I and II, which indicates that the DOL cannot comparably regulate fiduciaries to ERISA plans and IRAs. The court also criticized the DOL rule as illogical and internally inconsistent: The Rule \u201ctreats the fact that a person has done something that a fiduciary generally may not [do], as dispositive evidence that the person is a fiduciary.\u201d The court further found that the Rule improperly conflated sales pitches and investment advice, ignoring the statutory exception to prohibited transaction provisions that distinguish sales from investment advices.\n<\/p>\n

\nThe Court rejected the argument that the DOL salvaged its overbroad Rule by use of its exemptive power because the exemption actually extended ERISA\u2019s statutory duties of prudence and loyalty to brokers and insurance representatives who sell IRA plans although Title II has no such requirement.The Rule also violated the separation of powers because only Congress may create enforceable rights while agencies are only empowered to enforce those rights. The DOL\u2019s Rule created a vehicle for private suits by IRA owners while ERISA authorized private actions only for participants and beneficiaries of employer-sponsored plans, so the Rule\u2019s purpose was admittedly to go beyond Congressionally prescribed limits in creating private rights of action. Likewise, it violated the Federal Arbitration Act by its forced rejection of contract provisions for arbitration of class action claims, and it conflicted with provisions of the 2010 Dodd-Frank Act amending both the Securities Exchange Act and the Investment Advisers Act of 1940 with regard to broker-dealers\u2019 commissions or other standard compensation and state regulation of fixed indexed annuities as securities. Finally, the court expressed its skepticism at the DOL crafting new regulations that exert \u201cnovel and extensive power over the American economy\u201d from long-extant statutes.\n<\/p>\n

\nAfter concluding that the DOL\u2019s Fiduciary Rule conflicted with plain text of ERISA, was \u201cunreasonable\u201d under the Chevron test, and was an arbitrary and capricious exercise of administrative power under the APA, the Court found that the DOL\u2019s comprehensive regulatory package was not amenable to severance. Accordingly, it reversed the district court\u2019s summary judgment and vacated the DOL\u2019s Fiduciary Rule in toto<\/em>.\n<\/p>\n\n

\n
\nSubmitted by:<\/strong>

\n<\/strong>Donna Phillips Currault<\/strong><\/a>
\nGordon, Arata, Montgomery, Barnett,
\nMcCollam, Duplantis & Eagan, LLC
\n201 St. Charles Ave. 40th Floor
\nNew Orleans, Louisiana 70170-4000
\nDirect: (504) 569-1862
\nEmail: <\/strong>dcurrault@gamb.law<\/strong><\/a> \u00a0<\/strong><\/p>\n

Seventh Circuit<\/span><\/strong>\n<\/p>\n

Caroline Guzman v. Brown County<\/em>, 884 F.3d 633 (7th Cir. 2018).<\/strong>\n<\/p>\n

Plaintiff Caroline Guzman (\u201cGuzman\u201d) worked as a 911 dispatcher for Brown County, Wisconsin for more than ten years. She was diagnosed with sleep apnea in 2006. She stopped undergoing treatment for that condition in 2008.<\/p>\n

\nGuzman was disciplined for being late to work on four occasions between September 2011 and December 2012. On February 9, 2013, she again was late to work. Guzman attributed her tardiness to having slept through her alarm clock. She did not mention her sleep apnea. Guzman was suspended and warned that future tardiness could result in the termination of her employment.\n<\/p>\n

\nNevertheless, Guzman was late for work on March 8, 2013. Her direct supervisor, David Panure, informed the director of public safety for the call center, Cullen Peltier. Peltier decided to terminate Guzman\u2019s employment based on her attendance record. When Guzman arrived at work that day, she may have mentioned her sleep apnea to Panure. Panure told her it may be helpful to have a doctor\u2019s note regarding her absence. This information was not conveyed, however, to Peltier.\n<\/p>\n

\nGuzman was informed of her termination on March 15 by Panure and Peltier. At that meeting, she presented a doctor\u2019s note regarding her tardiness from March 8. The parties disputed whether Guzman provided the note before or after she was informed of her termination. They also disputed whether Guzman requested FMLA leave during or after that meeting.\n<\/p>\n

\nGuzman filed suit, alleging FMLA interference and retaliation and disability discrimination and retaliation in violation of the ADA and the Rehabilitation Act. The district court granted defendant\u2019s motion for summary judgment. On appeal, the Seventh Circuit affirmed on all counts.\n<\/p>\n

\nThe Court rejected Guzman\u2019s FMLA interference claim on the basis that she failed to introduce evidence sufficient to show she suffered from a \u201cserious health condition,\u201d in light of the lapse in time from her 2006 diagnosis and her concession that she was not under medical treatment for her sleep apnea at the time of her termination. The Court also rejected Guzman\u2019s argument that defendant had \u201cconstructive notice\u201d of her need for FMLA leave based six incidents of oversleeping over the course of 18 months. Likewise, Guzman\u2019s FMLA retaliation claim could not survive summary judgment because Peltier was unaware of her medical condition when he made the decision to terminate her employment. The Court affirmed dismissal of the disability claims for similar reasons, namely that defendant was unaware of her medical condition or any asserted need for an accommodation at the time it made the relevant employment decisions.\n<\/p>\n

\n
\nRosemary Madlock v. WEC Energy Group, Inc., d\/b\/a WE Energies<\/em>, 885 F.3d 465 (7th Cir. 2018).<\/strong>\n<\/p>\n

Plaintiff Rosemary Madlock (\u201cMadlock\u201d) worked for Wisconsin Electric Power Company for approximately forty years. Beginning in 2011, Madlock committed a number of billing errors in her position as Lead Customer Service Specialist and was subsequently transferred from the section within her department servicing the Company\u2019s large commercial customers to one servicing smaller commercial and residential customers to mitigate the effects of any future billing errors. As a result of the transfer, Madlock\u2019s work space was moved to a cubicle in the center of the room between two managers.\n<\/p>\n

\nMadlock filed suit, alleging race discrimination and retaliation. The district court granted defendant\u2019s motion for summary judgment. On appeal, the Seventh Circuit affirmed, holding that Madlock\u2019s transfer was not an adverse employment action sufficient to give rise to a claim of discrimination. The Court reaffirmed circuit precedent that \u201cnot everything that makes an employee unhappy is an actionable adverse action.\u201d Here, Madlock\u2019s transfer resulted in no reduction in salary, loss of benefits, or loss of title. The Court characterized Madlock\u2019s dislike for her new cubicle location as \u201chyperbolic\u201d and \u201cpurely subjective.\u201d The fact that she temporarily lost a leadership role was equally insufficient evidence. Finally, even her colleagues\u2019 impression that the transfer was \u201chumiliating\u201d was not sufficient to rise to the level of an adverse employment action.\n<\/p>\n\n


\nMark Skiba v. Ill. C. R.R. Co<\/em>., 884 F.3d 708 (7th Cir. 2018).<\/strong><\/p>\n

<\/strong><\/p>\n

Plaintiff Mark Skiba (\u201cSkiba\u201d) was originally hired as an entry\u2010level management trainee in Illinois Central Railroad\u2019s Railroader Trainee Program and subsequently served in multiple management-level positions for defendant. In early 2011, Skiba was promoted to a Motive Power Supervisor position. In this role, Skiba\u2019s direct supervisor was Daniel Clermont.<\/p>\n

\nIn June 2012, one of Skiba\u2019s co-workers filed an internal complaint, alleging that Clermont was \u201cverbally abusive,\u201d \u201cused profanity,\u201d and \u201cinsulted employees.\u201d During the course of defendant\u2019s investigation into the complaint, Skiba provided a statement confirming Clermont\u2019s \u201cabusive conduct\u201d and stating Clermont frequently berated, badgered, and disrespected his subordinates. Skiba further alleged Clermont subjected him to continual personal abuse and belittling and created a stressful work environment for him. Skiba did not connect his complaints about Clermont to any statutorily protected class but instead characterized the situation as a \u201cpersonality conflict.\u201d After the investigation was commenced, Skiba started asking to be transferred to a different department and began applying for other managerial positions.\n<\/p>\n

\nIn January 2013, as part of a corporate reorganization, Skiba\u2019s job position was eliminated. He was offered, and accepted, a non-management clerical job. He continued his search for a management-level position. In all, Skiba alleges he applied to approximately 82 different management positions, without any success.\n<\/p>\n

\nSkiba brought claims against defendant under both the ADEA and Title VII, alleging unlawful discrimination on the basis of his age and national origin, respectively. He also claimed he was subjected to unlawful retaliation for reporting complaints about his supervisor. The district court granted defendant\u2019s motion for summary judgment. On appeal, the Seventh Circuit affirmed on all counts.\n<\/p>\n\nWith regard to Skiba\u2019s age discrimination claim, the Court reaffirmed the relevant standard of \u201cbut-for\u201d causation in the Seventh Circuit. Skiba had pointed to a number of age-based statements made by defendant\u2019s management-level employees, including describing Skiba as low energy, a \u201clater career person\u201d who would not respond well to the need for additional training, and who was competing against a candidate expected to be \u201ca little faster\u201d at grasping certain aspects of the job. The Court viewed these alleged comments as \u201cinnocuous when viewed in context.\u201d Similarly, Skiba was unable to point to anything to show that defendant\u2019s reasons for not hiring Skiba in another managerial role were pretextual. Numerous hiring managers reported that Skiba presented poorly during interview and did not possess the traits most important for the positions. Even when considering the evidence as a whole, the Court concluded, the same events would have transpired if Skiba had been younger than 40 and everything else had been the same.\n<\/p.>
\nSubmitted by:<\/strong>
\n
Stephanie L. Mills-Gallan<\/strong><\/a>\n

\nEleventh Circuit<\/span><\/strong><\/p>\n

Equal Employment Opportunity Commission v. Exel, Inc<\/em>., 884 F.3d 1326 (11th Cir. 2018).<\/strong>\n<\/p>\n

A jury awarded the EEOC and intervenor Contrice Travis back pay, compensatory damages and punitive damages after finding employer Exel, Inc. discriminated on the basis of sex in denying Travis a promotion. The district court denied Exel\u2019s renewed motion for judgment as a matter of law as to liability, but granted it as to punitive damages. The parties cross-appealed. The Eleventh Circuit affirmed. The Court, in a 2-1 split, upheld the jury verdict as to liability because the Court was unable to conclude that no reasonable jury could have found that the hiring decision was motivated by sex. The evidence was sufficient to tie generalized discriminatory behavior to the specific employment decision.<\/p>\n

\nAs to punitive damages, the Court was bound by prior panel precedent to apply a standard stated by the Court to be in apparent conflict with a decision of the Supreme Court:\n<\/p>\n

\n. . . A plaintiff may recover punitive damages in a Title VII action only if the employer \u201cengaged in a discriminatory practice . . . with malice or with reckless indifference to the federally protected rights of an aggrieved individual.\u201d 42 U.S.C. \u00a71981a(b)(1). The Supreme Court has held that this standard \u201cfocus[es] on the actor\u2019s state of mind\u201d and \u201cdoes not require a showing of egregious or outrageous discrimination independent of\u201d that state of mind. Kolstad v. Am. Dental Ass\u2019n, 527 U.S. 526, 535, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999). But \u201c[t]he inquiry does not end with a showing of the requisite \u2018malice or . . . reckless indifference\u2019\u201d of the decisionmaker. Id.at 539, 119 S.Ct. 2118. The plaintiff must also \u201cimpute liability for punitive damages\u201d to the employer. Id. Here, the district court vacated the jury\u2019s punitive damages award based on this imputation requirement.\n<\/p>\n

\nBefore the Supreme Court decided Kolstad, we had held that a plaintiff may impute liability for punitive damages to her employer by showing \u201ceither that the discriminating employee was high[] up the corporate hierarchy, or that higher management countenanced or approved [his] behavior.\u201d Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1323 (11th Cir. 1999)(alterations in original)(internal citation and quotation marks omitted). In Dudley, we applied this \u201chigher management\u201d standard and held that punitive damages were unavailable because the two discriminating employees were store managers at one of Wal-Mart\u2019s more than 2,000 stores. Id. We based our holding on the fact that \u201cWal-Mart is a giant business\u201d and \u201c[n]either of [the discriminating employees were] high enough up Wal-Mart\u2019s corporate hierarchy.\u201d\n<\/p>\n

\nShortly after we articulated the higher management standard in Dudley, the Supreme Court took up the same issue in Kolstad, 527 U.S. at 539-40, 119 S.Ct. 2118. The Supreme Court held that punitive damages are imputable when the wrongdoing employee discriminated while \u201cacting in the scope of employment\u201d and serving in a \u201cmanagerial capacity.\u201d The Court noted that \u201cdetermining whether an employee [served in a managerial capacity] requires a fact-intensive inquiry,\u201d and it instructed courts to evaluate the employee\u2019s \u201ctype of authority\u201d and \u201camount of discretion\u201d in making that determination. Id. (internal question marks omitted). The Court\u2019s instruction, which focuses the inquiry on the discriminating employee\u2019s authority and responsibilities, appears to conflict with our higher management standard, which looks to the size of the employer and the discriminating employee\u2019s rank in the corporate hierarchy. Indeed, the Supreme Court said that \u201can employee must be important, but perhaps need not be the employer\u2019s top management, officers, or directors.\u201d Id. (internal quotation marks omitted).\n<\/p>\n

\nWe have never squarely addressed the apparent conflict between Kolstad and Dudley, but Travis asks us to do so in this case. As a panel, however, we remain bound by our prior panel precedent. Even though the Supreme Court decided Kolstad after Dudley, this court has continued to apply the higher management standard while acknowledging Kolstad.. . .\n<\/p>\n

\n884 F.3d at 1331-1332.\n<\/p>\n

\nJudge Tjoflat, in the dissent, did not reach the punitive damages issue since he found that no reasonable juror could find that sex discrimination motivated, in whole or in part, the decision to deny the promotion. 884 F.3d at 1333.
\n
<\/strong><\/p>\n

Submitted by:<\/strong>
Patricia T. Paul <\/strong><\/a>
\nAttorney at Law
\nOLIVER MANER LLP
\n218 W. State Street
\nP. O. Box 10186
\nSavannah, Georgia 31412
\n(912) 236-3311
\n(912) 429-3639 (cell)
ppaul@olivermaner.com<\/a> \u00a0<\/p>\n

\nD.C. Circuit<\/span><\/strong>\n<\/p>\n

\nSickle v. Torres Advanced Enterprise Solutions<\/em>, LLC<\/em>, 884 F.3d 338 (D.C. Cir. 2018).<\/strong>\n<\/p>\n

In Sickle v. Torres Advanced Enterprise Solutions<\/em>, LLC<\/em>, the D.C. Circuit construed the scope of preemption under the Defense Base Act (the \u201cAct\u201d), which provides workers\u2019 compensation benefits to civilian employees and contractors stationed at overseas military bases. The Act extends the benefit framework of the Longshore and Harbor Workers\u2019 Compensation Act to such employees, and also prohibits retaliation against workers seeking benefits. Finally, the Act also provides for preemption of state law claims relating to covered benefits or injuries.<\/p>\n

\nIn the case, a contractor was injured while working in Iraq. The on-site medic treated him for his injuries. After the injured contractor sought benefits under the Act, he was terminated without receiving his contractually-mandated 28 days of notice of termination. The medic later submitted documentation in support of the contractor\u2019s claim, after which the medic\u2019s employment was terminated, again without the contractual notice. The employees brought claims for retaliatory discharge under the Act, common law retaliatory discharge, breach of contract, and conspiracy. Ultimately, the employees were found to have failed to exhaust administrative remedies for their claims under the Act.\n<\/p>\n

\nThe court held that while the Act did not expressly preempt any of the employees\u2019 claims, it did impliedly preempt the injured contractor\u2019s tort claims because those claims arose directly from his own application for workers\u2019 compensation benefits. The court held that Congress had effected a compromise by granting workers\u2019 compensation benefits under the Act in place of the employer\u2019s common law liability, and allowing the injured employee to pursue tort claims relating to matters directly subject to the Act (i.e., his injury and his termination allegedly in retaliation for claiming benefits) would upset the compromise. On the other hand, the medic\u2019s tort claims were held not to be preempted because he had never filed any claim for benefits, and his submission of documentation in support of the injured employee\u2019s claim was not covered by the Act\u2019s anti-retaliation provision, which protects testimony in a proceeding under the Act. Nor was either employee\u2019s contract claim preempted, because those claims arose from the employer\u2019s failure to give the 28 days notice and had nothing to do with an on-the-job injury.\n<\/p>\n\n

\n
\nAli v. Pruitt<\/em>, ___ Fed. Appx. ___, 2018 WL 1391534 (D.C. Cir. Mar. 14, 2018).<\/strong>\n<\/p>\n

In Ali v. Pruitt, the D.C. Circuit affirmed the district court\u2019s grant of summary judgment in favor of a federal agency on an employee\u2019s claims that he was discriminated against due to his disability. <\/p>\n

\nThe employee had previously been assigned to a private office under the agency\u2019s \u201cAlternative Work Space\u201d (\u201cAWS\u201d) program, but feared he would lose the office when his division was schedule to relocate. Accordingly, he sought a reasonable accommodation, claiming that he was disabled due to sensitivity to environmental allergens. When the agency requested additional documentation from the employee\u2019s health care providers, however, he abandoned the interactive process and instead submitted another application under the AWS program. The employee never again sought to resume the interactive process. The court made clear that employers are permitted to impose procedural requirements for the interactive process, and employees cannot treat the process as a free for all and ignore those procedures.\n<\/p>\n

\nThe court also affirmed the dismissal of the employee\u2019s discrimination claims, finding them to be time barred because the employee waited for 2 years before contacting an agency EEO counselor. The employee\u2019s hostile work environment claim was found not to present severe or pervasive circumstances, and his retaliation claim lacked a causal connection between a previous EEO complaint in the 1990s and the present adverse employment actions.\n<\/p>\n\n

\n
\nEquinox Holdings, Inc. v. National Labor Relations Board<\/em><\/strong>, 883 F.3d 935 (D.C. Cir. 2018)<\/strong>\n<\/p>\n

In Equinox Holdings, Inc. v. National Labor Relations Board<\/em>, the D.C. Circuit considered and rejected two challenges lodged by an employer to a successful union election at three of the employer\u2019s locations. <\/p>\n

\nFirst, the employer pointed to evidence that an employee had threatened to call the Immigration and Customs Enforcement agency (\u201cICE\u201d) if the union lost the election. However, the NLRB hearing officer had refused to credit this testimony, and there was no other evidence that anyone representing the union had made such a threat.\n<\/p>\n

\nSecond, and described as more \u201ctroublesome\u201d by the court, was the union\u2019s retention of an ex-employee as an election observer who had been terminated four days before the election for bringing a weapon to work. The court found that because there was no evidence from the time of the ex-employee\u2019s termination that connected his possession of the weapon with the union or the election, the NLRB\u2019s finding that the ex-employee\u2019s retention did not taint the election was within the NLRB\u2019s discretion.\n<\/p>\n\n

\n
\nPubli-Inversiones de Puerto Rico, Inc. v. National Labor Relations Board<\/em>, ___ F.3d ___, 2018 WL 1542492 (D.C. Cir. Mar. 30, 2018).<\/strong>\n<\/p>\n

In Publi-Inversiones de Puerto Rico, Inc. v. National Labor Relations Board, the D.C. Circuit upheld the NLRB\u2019s finding that the purchase of a unionized company\u2019s assets was required to continue to recognize and bargain with the predecessor company\u2019s union.\n<\/p>\n

\nThe case arose out of the 2013 bankruptcy sale of the assets of a corporation that published a Spanish-language newspaper called El Vocero. The purchaser permitted the bankrupt company\u2019s employees to apply for re-employment, and ultimately 24 former employees were hired out of 36 positions within the former bargaining unit. The purchaser also hired a fluctuating number of between 27 and 51 employees to work as \u201cinserters\u201d responsible for physically inserting advertisements into the newspaper. After the purchase, the employer instituted some changes to the appearance of El Vocero, began publishing two new magazines, and changed the company\u2019s organizational and reporting hierarchy.\n<\/p>\n

\nThe court explained that continuing majority support for a union is presumed where three criteria are met: (1) substantial continuity between the predecessor and successor enterprises, (2) the presence within the bargaining unit of a majority of employees who had worked for the predecessor, and (3) an ongoing demand for collective bargaining by the union. The existence of the third element was undisputed in the case.\n<\/p>\n

\nThe court held that the first two elements were met. First, the court described the changes to El Vocero as \u201csuperficial\u201d only and insufficient to defeat a finding of business continuity. Second, the court held that the bankrupt company\u2019s employees constituted a majority of the bargaining unit. The court rejected the employer\u2019s argument that the newly-hired inserters had to be counted as bargaining unit members, noting that they worked under different conditions than the other employees. The court also explained that the NLRB could properly weigh the composition of the predecessor bargaining unit heavily in successorship cases.\n<\/p>\n\n

Submitted by:
<\/strong>Jack Blum<\/strong><\/a>
<\/strong>Paley Rothman
\n4800 Hampden Lane 6th Floor
\nBethesda, MD 20814
\n301-968-3415
<\/strong>jblum@paleyrothman.com<\/strong><\/a> <\/strong><\/p>\n

<\/strong><\/strong><\/p>\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

Supreme Court Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134 (2018). Encino Motorcars, LLC (\u201cEncino\u201d) is a Mercedes-Benz dealership…<\/p>\n","protected":false},"author":1,"featured_media":0,"parent":40,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"kp-content-permissions":[],"class_list":["post-49","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/pages\/49","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/comments?post=49"}],"version-history":[{"count":2,"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/pages\/49\/revisions"}],"predecessor-version":[{"id":452,"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/pages\/49\/revisions\/452"}],"up":[{"embeddable":true,"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/pages\/40"}],"wp:attachment":[{"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/media?parent=49"}],"wp:term":[{"taxonomy":"kp-content-permissions","embeddable":true,"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/kp-content-permissions?post=49"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}