Labor Relations & Wages Hours Update
August 2012
Hot Topics in LABOR LAW REPORTS:
NLRB to appeal ruling rejecting election process reforms
The NLRB filed a notice of appeal on Tuesday, August 7, informing the Court of
Appeals for the District of Columbia that it will appeal a district court judge’s ruling that
blocked reforms to the NLRA’s election processes. U.S. District Judge James Boasberg
in Washington rejected the board’s rule change on May 14, after finding that the board
lacked a quorum when it passed the rule because only two of the board’s then-three
members participated in the vote. On July 27, he rejected the board’s request to
reconsider the decision.
The board has insisted that Boasberg misunderstood the mechanics of the board’s
electronic voting room and that the allegedly missing members, Republican Brian Hayes,
was both present for the meeting in which the rule was passed and participated in votes
on other matters during the meeting.
Among other things, the board’s rule changes would cut the amount of time between the
filing of a representation petition and an election by limiting the amount of issues that can
be dealt with in pre-election hearings.
NLRB asks for amicus briefs in case dealing with whether college professors can
join union
According to a recent article in the Pittsburgh Post-Gazette, the NLRB has solicited
amicus briefs in a case dealing with whether professors at Point Park University can join
a union. The faculty attempted to organized in 2004
The article notes that the U.S. Supreme Court ruled in 1980 that faculty members at
Yeshiva University were managers not entitled to union representation because they
shared governance over the university with administrators. Thus, before the NLRB can
decide that a faculty is allowed to organize, it must find differences between the
administrative power of the university faculty in question and that of the Yeshiva faculty.
The paper reports that Point Park’s attempt to introduce a new faculty handbook without
faculty input led to the organizing drive as the new handbook did not detail the power of
the new deans; a provost was in charge when the old handbook was written. The NLRB
ordered the university to bargain with the union, but Point Park sued and, eventually, the
U.S. Court of Appeals for the District of Columbia Circuit ordered the NLRB to explain
why Point Park faculty is allowed to organize under the NLRA.
NLRB invites briefs on questions of tax payments and Social Security contributions
in remedial awards
The NLRB has invited briefs from all interested parties on whether, in awarding back
pay, it should routinely require respondents to: 1) submit documentation to the Social
Security Administration so that backpay is allocated to the appropriate calendar quarters,
and 2) pay for any excess federal and state income taxes owed as a result of receiving a
lump-sum payment.
The invitation was contained in the Board’s recent Latino Express decision. In that case,
the Board largely agreed with the administrative law judge that the company committed
multiple unfair labor practices, including illegally dismissing two employees, during the
course of a union organizing campaign. The Acting General Counsel has requested two
additional remedies that would, if adopted, represent a change in Board practice. He
asked that the employer be ordered to submit appropriate documentation to the Social
Security Administration so that backpay would be allocated to the appropriate calendar
quarters. The AGC also asked that discriminatees receive a lump-sum backpay award.
Because the remedies would represent a change to Board practice, the Board severed the
remedial issues from the ruling and invited briefs on the issue.
The Board has said that briefs should not exceed 25 pages and should be filed with the
Board on or before October 1.
Workforce committee Republicans demand that Labor Secretary explain recent
DOL guidance on WARN Act
In a letter sent to DOL Secretary Hilda L. Solis, House Education and the Workforce
Committee Chairman John Kline (R-Minn.), Workforce Protections Subcommittee
Chairman Tim Walberg (R-Mich.) and Health, Employment, Labor, and Pensions
Subcommittee Chairman Phil Roe, M.D. (R-Tenn.) demanded that Solis provide
documents and communications related to the development of the DOL’s recent guidance
regarding contractor duties in relation to the potential sequestration and the Worker
Adjustment and Retraining Notification (WARN) Act.
The DOL ruling states that WARN Act notices, which generally must be sent no less than
60 days before a mass layoff or plant closing, do not apply in the case of a sequester
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because it remains uncertain whether the sequester will go into effect at the beginning of
2013. Under a budget deal reached last year, the sequester will go into effect if Congress
is unable to agree on a long-term plan to address the federal budget deficit. Any sequester
would impose severe cuts in funds for the Defense Department and civilian federal
agencies.
According to the Republicans, however, the guidance is nothing more than “a political
document that underscores the legal uncertainty facing employers and leaves countless
workers in the dark about whether they will lose their jobs.” Kline said that the document
request is necessary to prevent “the administration’s attempt to hide from workers the
devastating consequences of sequestration.”
The Republicans expressed concern that the guidance is misleading and incomplete. They
allege that the guidance suggested that it conferred “blanket immunity from the WARN
Act.” The reality, according to the Republicans, is that individual employees could, in the
event of layoffs caused by the sequestration, file private suits. The guidance, they note,
fails to explain that the DOL has no enforcement role when it comes to WARN Act
notices. Thus, the Republicans have asked for information regarding how the DOL
developed and crafted the guidance and the legal basis for the conclusions contained in
the guidance.
Republican senators submit comments to NMB arguing that 50 percent showing of
interest threshold applies to mergers
In a letter sent this week to National Mediation Board Chairman Harry R. Hoglander,
three Republican Senators insist that the Federal Aviation Administration Modernization
and Reform Act requires a 50 percent showing of interest before a representation election
can be held and that the showing applies in cases of mergers as well.
Senators Johnny Isakson (R-Ga.), Mike Enzi (R-Wyo.), and Orrin Hatch (R-Utah)
submitted their written comments in response to the Notice of Proposed Rulemaking
(NPRM) issued by the NMB on May 15. That NPRM dealt with the Federal Aviation
Administration Modernization and Reform Act, which revised the election process under
the Railway Labor Act (RLA). Prior to the enactment of the FAA reform act, the RLA
representation election procedure required a threshold showing of support from at least
35 percent of the employees and more than a 50 percent showing of support if they were
already represented. The law states that the NMB cannot direct an election unless “the
application is supported by a showing of interest from not less than 50 percent of the
employees in the craft or class.”
That language has been challenged in a “colloquy” inserted into the Congressional
Record claiming the 50 percent threshold does not apply to situations where union
represented units have merged. In its own NPRM, the NMB stated that “[t]he amended
language is silent with regard to mergers.” The NMB, thus, declared that it needed to
clarify the situation.
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According to the Republican Senators, the NMB’s reasoning “ignores the traditional
construction of statutory language.” They insist that if Congress wanted to exclude
mergers from the threshold requirement, it would have done so and that, lacking the
exclusion, the NMB is barred from presuming that the exclusion exists. They contend
that Congress chose to apply the new standard to all representation petitions and that the
decision to do so was “the result of bipartisan negotiations and compromise, where
opponents could have specifically included language exempting mergers if that were
truly the intent.”
The senators expressed their belief that the NMB’s final rule on the issue will reflect
what they believe to be “the law’s plain language and clear legislative intent.”
NLRB revises notice language to be used in cases of unfair labor practices by unions
The NLRB has issued a memo to its regional offices regarding the language to be used in
notices when unions have been found to have committed unfair labor practices.
Originally issued on May 24, 2012, the memo said that unions should electronically
distribute remedial notices to members, and post them electronically on any intranet site
or website that the union would used to communicate with its members and that notices
that have to be read to members must be read at union meetings. The revised memo
makes it clear that in the “large majority of cases” against unions, electronic
communication, notice posting and notice reading should reach all bargaining unit
employees, not just members.
The revision and the original memo apply only to ULPs committed by unions in their
capacity as a labor organization and not in cases when charges have been filed against a
union in its capacity as an employer.
National Right to Work Foundation assists two appeals of NLRB moves
The National Right to Work Foundation has assisted in two appeals of recent actions by
the NLRB. In the first, an Ohio mechanic filed an appeal of the Board’s rejection of his
petition to decertify the International Association of Machinists. In the second, two
Boeing employees appealed the dismissal of charges against the IAM over its conduct
surrounding a disputed Boeing unit election.
The mechanic, Kyle Chilton, filed his appeal on Friday to the petition for decertification
he and several co-workers filed with the Board seeking to dump their union, the IAM. In
his appeal of the Board’s decision, Chilton alleges that the Board incorrectly based its
decision on alleged unfair labor practices by the employer that the IAM claimed
influenced the decertification petition; Chilton notes that those ULPs have yet to be
confirmed. Chilton, who is represented by the NRWF, also contends that the decision is
improper because the Board lacks a quorum. The NRWF has filed numerous briefs in
various cases contending that the Board lacks a quorum because President Barack Obama
named three members to the board via his recess appointment powers, despite the fact
that the Senate was in pro forma session.
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In the second case, two Charleston, South Carolina, Boeing company employees filed a
federal appeal with the Board of the dismissal of their charges alleging that the IAM
forced Boeing to accept contract concessions by filing charges against the Board. The
employees further argued that they were denied participation in the hearing that
concluded the IAM’s case against Boeing, even though they were granted intervenor
status by the NLRB in Washington, D.C. In addition, the workers have contended that the
IAM’s charges have caused other companies to reconsider placing work in right-to-work
states; the heart of the IAM’s charge was that Boeing placed work in South Carolina to
punish the union for an earlier strike.
LEADING CASE NEWS
1stCir: Agreement between Teamsters and employer intended to protect union jobs;
not unlawful hot cargo agreement
The NLRB erred in concluding that an agreement between the Teamsters union and an
employer, which prohibited the employer from doing business with two third-party
subcontractors, violated Sec. 8(e) with respect to one of the subcontractors, ruled the First
Circuit (NLRB v Teamsters, Local 251, August 14, 2012, Lipez, K). In light of
contradictory evidence in the record that the board failed to consider, the plain text of the
agreement was not substantial evidence supporting its conclusion that the agreement had
an impermissible intent. The appeals court agreed with an administrative law judge that
the agreement was intended to preserve union jobs with the employer.
The employer was a highway construction general contractor and a signatory to a
multiemployer collective bargaining agreement with the Teamsters. Over the years, the
number of the employer’s employees represented by the union declined, in part due to a
concerted effort by the employer to replace unionized truck drivers with non-union
subcontractors. When a truck driver retired, the employer would sell a truck and replace
that person with a non-union subcontractor. The union was especially troubled by the
employer’s use of two subcontractors that did not pay the prevailing rate to their drivers.
Under the parties’ CBA, the employer was not permitted to use subcontractors unless
those employees were paid the prevailing rate. After the union filed charges with the
NLRB regarding the use of subcontractors in violation of the CBA, the employer and
union agreed that the services of the two subcontractors would not be used. This
agreement is the primary subject of this dispute.
Prohibited subcontractors. In April 2001, the union determined that the employer was
again using one of the prohibited subcontractors and its drivers were not being paid the
prevailing rate. When the employer indicated it intended to continue using the
subcontractor, union members went on strike. Following the strike, the employer filed
charges with the NLRB alleging the union violated Sec. 8(b)(4)(ii)(A) & (B), and 8(e) of
the NLRA. The ALJ found that the agreement was unlawful as to one subcontractor
because the union had not established that it was performing work traditionally
performed by the employer’s bargaining unit employees. However, the agreement was
not unlawful as to the subcontractor that was performing traditional bargaining unit work.
Thus, the ALJ found that the union’s efforts to enforce the agreement as to that
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subcontractor were lawful. The NLRB reversed the law judge’s decision as to the union
performing bargaining unit work.
Section 8(e) makes it unlawful for a union and employer to enter an agreement to refrain
from doing business with any other person. However, the Supreme Court ruled in NLRB v
International Longshoremen’s Association that the provision is intended to reach only
agreements with secondary objectives, not those with primary purposes protected by the
Act. Among the primary purposes protected by the Act is preserving for contracting
employees themselves work they traditionally performed. It is the intended purpose of an
agreement, not its effect, that determines whether it has a permissible primary object.
Intent of agreement. In reversing the ALJ’s decision, the NLRB focused exclusively on
the language of the agreement in concluding that the agreement violated Sec. 8(e)
regardless of the circumstances, observed the appeals court. However, because significant
record evidence of the surrounding circumstances indicated that the agreement did not
have an impermissible purpose, the plain text of the agreement was not substantial
evidence supporting the board’s conclusion. In this instance, the agreement was intended
to enforce the union standards clause in the CBA and, thus, preserve union jobs. The
subcontractors were identified in the agreement because they were the subcontractors
who failed to pay the prevailing rate.
Moreover, the NLRB’s decision ignored evidence regarding repeated meetings between
the employer and union concerning the use of contractors who did not pay the prevailing
rate. Additionally, the employer was not absolutely prohibited from using the
subcontractor so long as it would pay its drivers the prevailing rate. The court concluded
that this was powerful evidence that the agreement was intended to preserve union jobs
with the employer rather than achieve union objectives with respect to the subcontractor.
Union drivers faced a real threat of displacement by the subcontractors, as illustrated by
the diminishing size of the bargaining unit. However, none of that evidence was
discussed in the board’s decision. Thus, the court ruled that both prongs of the test for
identifying lawful work preservation agreements were present in this case.
The court denied the NLRB’s cross-application for enforcement of its order with respect
to the agreement’s prohibition on the use of a subcontractor for bargaining unit work.
The case number is 11-1818.
Linda J. Dreeben for the NLRB. Marc B. Gursky (Gursky Law Associates) for the Union.
3rdCir: Employer did not violate CBA by denying union representatives access to
employees of recently acquired nonunion stores
In a decision not designated for publication, the Third Circuit dismissed a union’s
complaint filed pursuant to Sec. 301 of the LMRA alleging that an employer violated the
terms of a collective bargaining agreement by denying union representatives access to
employees of recently acquired nonunion stores (United Food and Commercial Workers
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Local 23 v Giant Eagle Markets Co, August 3, 2012, McKee, T). In the controlling
decision in Rite Aid of Pa, Inc v United Food and Commercial Workers Union, Local
1776, the appeals court found that a similar recognition clause merely established the
union’s position as the exclusive bargaining representative of unit employees and defined
the range of matters subject to bargaining. It did not purport to include anything
resembling the union’s claimed right of access to newly acquired stores.
The employer operated grocery and convenience stores in western Pennsylvania, among
other places. Certain employees were represented by the union, and the parties were
signatories to a CBA covering those employees. In September 2010, the union filed a
grievance against the employer alleging that it violated the CBA by denying union
representatives access to several recently acquired nonunion grocery stores. The
employer took the position that the matter was not arbitrable under the CBA. In response,
the union filed a complaint seeking to compel the employer to submit the grievance to
arbitration. The union subsequently filed a second grievance that met the same result. On
the union’s motion to amend its complaint, the district court concluded that the
grievances were not arbitrable as a matter of law.
On appeal, the Third Circuit determined that its decision in Rite Aid, which concerned the
same type of grievances at issue here, controlled this dispute, rejecting the union’s
attempt to distinguish the case at hand. In Rite Aid, the court concluded that the union’s
grievances were not arbitrable under the governing CBA because the terms of that
agreement were not implicated by those grievances. A right of union access to newly
acquired stores could not plausibly be derived from the contract’s recognition clause. As
a consequence, the appeals court granted the employer’s motion to dismiss.
The case number is 11-2536.
Marianne Oliver (Gilardi, Cooper & Lomupo) for Union. Susan G. Flynn (Marcus &
Shapira) for Employer.
6thCir: Employer could not withdraw union recognition simply because it
reassigned unit members to a non-union facility
Substantial evidence on the record supported a decision of the NLRB that a bargaining
unit retained its separate identity and remained an appropriate bargaining unit following
an employer’s decision to close a unionized facility and assign those employees to an
unrepresented facility and withdraw recognition from the union (NLRB v ADT Security
Services, Inc, August 3, 2012, Stranch, J). As a consequence, the Sixth Circuit enforced
the board’s order that ADT rescind its unilateral actions and recognize and bargain in
good faith with the union.
For almost 29 years, ADT recognized the union as the exclusive bargaining
representative of a unit of service employees at its Kalamazoo facility. In May 2008, the
employees were advised that ADT was closing the facility and would consolidate
operations at its Wyoming, Michigan facility, and would no longer recognize the union as
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their bargaining representative. As a result of the change, the employees’ overtime and
drive-time entitlements would be decreased, and the rules regarding vacation eligibility
also changed. ADT did not notify the union of the changes to the employees’ working
conditions. Instead, it sent the union a letter announcing the consolidation of the 14
unionized employees with 27 unrepresented servicemen at the Wyoming facility.
Because the union would not be representing a majority of employees at the Wyoming
facility, ADT announced it was withdrawing recognition from the union as representative
of the former Kalamazoo employees. At the time recognition of the union was
withdrawn, there was a collective bargaining agreement in effect.
The NLRB ordered ADT to rescind the withdrawal of recognition, extend recognition to
the union as bargaining representative of the former Kalamazoo employees, reinstate the
CBA without retracting any benefit conferred, and to bargain collectively in good faith
with the union. After ADT refused to comply, this enforcement action followed.
Withdrawal of recognition. The NLRB did not err in its determination that the 14
former Kalamazoo employees remained an appropriate bargaining unit following the
ADT’s withdrawal of recognition. The Sixth Circuit rejected the employer’s assertion
that following consolidation of the two facilities, the Kalamazoo employees were no
longer a distinct bargaining unit. In evaluating the appropriateness of the board’s
designation of a bargaining unit, the appeals court applied a “community of interests”
test. In this instance, ADT was required to establish that compelling circumstances
overcame the almost 29-year bargaining history between the parties.
Although both the Kalamazoo and the Wyoming servicemen had similar skills and duties,
they continued to exercise those skills in their own distinct geographical areas. The
Kalamazoo servicemen were not “absorbed” or “integrated” into a unit including all
servicemen who work out of the Wyoming facility. Further, some of the terms of
employment that distinguished the Kalamazoo servicemen from the Wyoming
servicemen remained intact following the consolidation. ADT dispatch continued to
maintain separate “on call” lists for emergencies in the two service territories.
Consequently, there was substantial evidence to support the board’s conclusion that the
Kalamazoo employees were not functionally integrated into the Wyoming facility and
remained a distinct unit of servicemen.
Although common supervision was a factor favoring a determination that the unit had
lost its separate identity, the board’s finding that the servicemen were relatively
independent from their immediate supervisors was supported by substantial evidence.
Here, the servicemen gave consistent testimony that their regular contact with their
supervisor was almost exclusively by telephone with only sporadic in-person contact.
Consequently, the NLRB did not abuse its discretion in its application of the “community
of interests” test, its determination that ADT had shown no “compelling circumstances”
to overcome the parties’ long bargaining history, and its conclusion that the former
employee unit maintained its integrity following the closure of the Kalamazoo facility,
and continued to be an appropriate unit with which ADT was obligated to bargain.
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The appeals court granted the board’s application for enforcement of its order.
The case number is 10-2549.
Linda Dreeben for National Labor Relations Board. Bernard P. Jeweler (Ogletree Nash)
for Employer.
6thCir: Suit against union for failure to arbitrate improperly brought under
LMRDA
A teacher’s assistant (TA) improperly filed a claim against her union for its failure to
arbitrate her termination under the Labor-Management Reporting and Disclosure Act
(LMRDA) when she should have filed the claim under the Labor Management Relations
Act (LMRA) and, thus, she failed to state a claim under the LMRA, ruled the Sixth
Circuit (Huntley v Ohio Association of Public School Employees, August 15, 2012, Siler,
E). In its unpublished opinion affirming a district court’s grant of summary judgment to
the union and employer, the court also held that there was no federal jurisdiction over the
TA’s remaining claim for breach of the CBA, and that the district court properly denied
the TA’s motion to amend her complaint. Judge Helene N. White dissented.
The TA was employed by the Economic Opportunity Planning Association of Greater
Toledo (EOPA) and was a member of the Ohio Association of Public School Employees
(OAPSE). EOPA and OAPSE had a CBA that governed complaints for wrongful
termination. Under the CBA, if the employee and union were not satisfied with the
EOPA’s written response to a grievance over a termination, the union and employee
could, but did not have to, submit the grievance to arbitration. After the TA was fired, the
union declined to submit his grievance to arbitration, having decided that the TA’s claims
were meritless. The TA then filed suit against EOPA and the OAPSE, contending that the
failure to arbitrate violated the LMRA, the CBA, and Ohio state law. The district court
granted the defendants’ motion for summary judgment.
No LMRDA claim. The appeals court affirmed the district court’s finding that the TA
failed to state a claim under the LMRDA. The court noted that the LMRDA applies only
to unions, not to employers, so there was no claim under the LMRDA against EOPA.
Moreover, the LMRDA did not provide a cause of action against the union, because the
LMRA governs claims for failure to arbitrate. Thus, the TA failed to state a claim under
the LMRDA.
State law and CBA claims fail. Additionally, the appeals court found that the
employee’s CBA and state law claims also failed. Even if the loss of the LMRDA claim
did not strip those claims of the requisite federal nexus, both claims failed on the merits.
The claim against the union for the failure to arbitrate failed because, on its face, the
CBA said only that the union and employee, if not satisfied with the employer’s response
to the grievance “…may submit a grievance.” Because submitting a grievance to
arbitration was optional, there could be no claim against the union for failing to do so.
Additionally, the claim against EOPA failed because its duty to arbitrate was never
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triggered, as OAPSE never submitted the grievance to arbitration. Lastly, the state law
claim failed because without a federal nexus, the court had no jurisdiction.
Motion to amend denied. Lastly, the court affirmed the district court’s denial of the
TA’s motion to amend the complaint to reflect an LMRA count, because the statute of
limitations for the LMRA claim had passed. The statute of limitations for a failure to
arbitrate claim under the LMRA is six months and, thus, the proper inquiry was when the
TA knew that OAPSE would not submit the grievance to arbitration. The TA was
terminated on May 20, 2007, and pursuant to the CBA, OAPSE had 20 days after the
employer’s written response to submit the grievance. Assuming that every step of the
grievance process took the maximum number of allowable days, the court found that the
union had until, at the latest, early September 2008 to submit. The limitations period
would have expired six months later, in March 2009; however, the TA did not file her
claim until May 21, 2009. Thus, the district court properly denied the motion to amend.
Dissent. Justice White dissented, finding that the evidence indicated that the union had
not fully decided not to submit the grievance until December 10, 2008. A new union
president had taken over and was, until that date, reviewing the grievance. Therefore, the
dissent argued that the TA would not have known until that date that the union had
declined to submit the grievance. Moreover, because neither the TA nor the new union
local president ever received the final notice of the union’s decision, the dissent disagreed
with the majority’s determination of when she should have reasonably known that the
union was not going to pursue arbitration on her behalf.
The case number is 11-3345.
Percy Squire (Percy Squire Co) for Employee. Kristen E. McKinley (Ohio Association of
Public School Employees) for Union. Laura J. Avery (Reminger & Reminger) for
Employer.
6thCir: Pre-election agreement between union and employer did not violate NLRA
An employer and union did not violate the NLRA when they entered into an agreement
setting forth bargaining principles that would go into effect if the employees chose the
union as their bargaining representative, the Sixth Circuit ruled (Montague v NLRB,
August 23, 2012, Rogers, J.) In denying a petition to review a ruling by the NLRB that
affirmed the dismissal of a complaint against the union, the court noted that the Board’s
interpretation of the NLRA in terms of the lawfulness of the agreement was reasonable
and, thus, could not be set aside.
Background. The United Auto Workers union sought to represent employees at the Saint
John’s, Michigan facility of the auto parts manufacturer, Dana Corp. The parties, which
had a long-standing relationship, entered into a Letter of Agreement (LOA) that set forth
ground rules for the upcoming organizing drive and that created a bargaining framework
that would govern future negotiations if a majority of workers chose the union. Included
in the framework was a promise that the union would not seek to change the current
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approach to healthcare. The LOA also set forth conditions that would have to be included
in future bargaining agreements.
After the parties signed the agreement, several workers filed unfair labor practice charges
with the NLRB contending that the LOA was an unlawful recognition of the union that
interfered with their right to choose or not choose a union. Although the UAW failed to
win majority recognition and the plant closed, the case continued and a Board ALJ
recommended dismissing the charges. A split panel of the NLRB affirmed the dismissal,
finding that the LOA was not a complete CBA, but rather only a framework for future
CBA’s. The dissenting member found that the LOA could have led employees to believe
that they had no choice but to vote for the union. The majority countered that the
employees clearly did not believe that, as they voted against representation.
The appeals court noted that it could not overturn the Board’s ruling if it was a reasonable
interpretation of the NLRA. In this case, the court found the Board’s ruling to be
reasonable.
No recognition. Deferring to the Board’s finding that the LOA did not unlawfully
recognize the union, the court noted that the LOA explicitly stated that the employer
would not recognize the union until the union had won a majority of the votes for the
proposed unit. The LOA also stated that the “employee’s freedom to choose is a
paramount concern.” Additionally, there was no evidence of an oral agreement
constituting “premature recognition” of the union. Thus, the court found that the LOA
was not an unlawful recognition of the union.
Not a full-fledged agreement. Moreover, the Board reasonably ruled that the LOA was
not a full-fledged CBA. Specifically, the appeals court noted the Board’s finding that the
LOA required numerous and substantial negotiations that would have had to occur, after
the union became the bargaining representative, before the LOA’s provisions would go
into effect. Further, the LOA did no more than create a framework for future collective
bargaining. Although some of the terms in the LOA were binding on future CBAs, the
Board’s ruling was reasonable, finding that the employees were free to reject the union if
they did not like the provisions, the appeals court found. Because the employees could
have, and did, reject the union, the LOA did not impermissibly interfere with their
freedom to choose the bargaining representative. The employees knew what was in the
LOA before the election and they could choose whether to reject or accept the union
based on that document.
Lastly, the court found that a provision in the LOA setting forth a dispute resolution
process for violations of the LOA did not interfere with the employees’ choice, because
the provision applied only to violations of the LOA, not to violations of future CBAs.
Therefore, because the Board’s ruling that the LOA did not interfere with the employees’
choice in violation of the NLRA was reasonable, the court denied the petition for review.
The case number is 11-1256.
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William L. Messenger (National Right to Work Legal Defense Foundation) for
Employees. Julie B. Broido for the NLRB.
8thCir: Union’s refusal to enter into agreement with subcontractor was unlawfully
intended to force contractor to sign union agreement
A union’s refusal to enter into an agreement with a fencing subcontractor was intended to
pressure the nonunion contractor with whom the subcontractor worked to sign a union
agreement and was, thus, unlawful, ruled the Eighth Circuit (Laborers District Council of
Minnesota and North Dakota v NLRB, August 7, 2012, Loken, J). The court denied the
union’s petition for review of an order by the NLRB that required the union to cease and
desist from attempting to coerce the contractor.
Pre-hire agreement. The union entered into a pre-hire Highway-Heavy agreement with a
multi-employer group that required the participating employers to contract or sublet work
on the highway project only to entities that either signed, or were already signatories to, a
union labor agreement. Century Fence Company was a nonunion contractor that bought
and delivered fencing work to the job site. Although Century used only union-affiliated
subcontractors when working with signatories to the agreement, in 2007 the union began
pressuring the signatories not to enter into subcontracts with Century because of its
nonunion status. In 2008, the union told Century that if it did not sign a union contract,
the union would neither sign, nor renew contracts with subcontractors who did business
with Century. Century filed an unfair labor practice (ULP) complaint with the NLRB
and, pursuant to a subsequent settlement agreement, the union agreed not to threaten or
coerce any subcontractor to stop doing business with Century.
In 2010, the newly formed Lake Area, a fencing subcontractor, signed the HighwayHeavy agreement and submitted a new-contractor processing form to the union. Lake
Area intended to work with Century and to become a union-affiliated subcontractor, but
when the union learned of its affiliation with Century, it refused to sign the agreement
with Lake Area. Lake Area filed a ULP charge and the NLRB upheld an ALJ’s finding
that the refusal violated the NLRA because it was done to force Century to become a
signatory contractor. The union appealed the order.
Freedom to contract. As an initial matter, the appeals court rejected the union’s
argument that the NLRB order was contrary to the union’s freedom to contract. The court
found that the union’s right to refuse a contract for a motive made unlawful by the NLRA
was not “unfettered.” The court noted that the NLRA does not require the conduct itself
to be unlawful if the underlying motive is prohibited by the Act. In this case, the union’s
lawful refusal to enter into a contract with Lake Area was made unlawful by the union’s
underlying desire to use that refusal to pressure Century to sign a union contract.
The court also rejected the union’s argument that the board order was a directive that the
union could not exercise its freedom to contract. The court held that the order merely
instructed the union to stop coercing the subcontractor. If that meant that the union would
12
have to sign agreements with subcontractors who worked with Century, “that will be the
result of the Union’s prior unlawful actions.”
Coercive activity. The union also argued that the board erred in finding that union’s
refusal to sign the agreement with Lake Area was coercive because, under Sec.
8(b)(4)(ii)(B) of the NLRA, agreements signed under Sec. 8(f) are purely voluntary. The
court, however, noted that the main focus of the inquiry is not the lawfulness of the
contested action, but rather the impact of that action on the secondary employer. The
board itself has ruled that refusing to execute a CBA may violate the Act if done for
unlawful coercive reasons. The fact that the agreement would have been an initial one
with Lake Area did nothing to minimize the coercive effect of the refusal to sign the
agreement.
The court also rejected the union’s argument that its refusal to sign was not economically
coercive because Lake Area had no prior union affiliation and had no right to union
affiliation. The court took note of the board’s finding that Lake Area had intended to
become a union contractor, but that the union’s refusal barred Lake Area from all union
work in the area pursuant to the Highway-Heavy agreement. The refusal “crippled” Lake
Area’s business plan, deprived it of a “ready supply of trained labor,” and went beyond
persuading Lake Area not to work with Century and into the realm of unlawful coercion.
Thus, the court denied the union’s petition to review the NLRB order.
The case numbers are 11-2848 and 11-3115.
Brendan D. Cummins (Miller & O'Brien) for Union. Linda Dreeben for National Labor
Relations Board.
8thCir: Death of grievant did not relieve employee of duty to arbitrate grievance
The death of a grievant after an employer had agreed to arbitrate his termination
grievance but before proceedings had commenced, did not relieve the employer of its
duty to arbitrate the grievance, ruled the Eighth Circuit in reversing a federal district
court’s denial of the union’s motion to compel arbitration (Sheet Metal Workers Local No
2 v Silgan Containers Manufacturing Corp, August 28, 2012, Melloy, M). The interests
of employees whose grievances arise in the course of their employment, but who die
before those grievances are resolved, do not diverge from the interests of current
employees, noted the court. Thus, the arbitration provision covered workers after their
death.
Grievance process. The employer and union were parties to a CBA governing the
working conditions of unit employees, including a grievance process. Under that
provision, employees had the right to file grievances and grievances that were not
resolved by the employer and union could be submitted to arbitration. The CBA also
provided that discharged workers who wanted to grieve their termination needed to file
written protest with the union within seven days of the termination.
13
In February 2010, the grievant was terminated under a provision of the CBA allowing for
termination for just cause — dishonesty or intoxication. The union grieved the
termination and when that failed, it filed a demand for arbitration. The parties selected an
arbitrator and chose November 17, 2010, as the date for the hearing. But the grievant was
killed in a car accident on November 12, 2010. Thereafter, the employer refused to
continue with the hearing, contending that the employee’s death rendered the point moot.
The union filed a motion to compel arbitration that was denied by the district court
because the deceased individual no longer fit within the CBA’s definition of employee.
CBA protected deceased employee. The Eighth Circuit agreed that the grievance
procedure applied only to employees. However, unlike the district court, it found that the
deceased grievant fell within the CBA’s definition of employee. The appeals court found
that nothing in the CBA indicated that the mandatory arbitration provision ceased to
apply when grievants filed a grievance, but died before the hearing. It also did not
exclude such claims and the court found that the CBA provided for monetary damages
which could be awarded to the deceased worker’s estate. The employer argued that the
estate was not a party to the suit, but the court found that the estate was standing in for
the grievant. “[J]ust as an employee must submit to mandatory arbitration in life,” the
court wrote, “so to must the estate of that employee after his or her death.”
The employer cited the U.S. Supreme Court decision in Allied Chemical & Alkali
Workers of America v Pittsburgh Plate Glass Co in support of its argument that deceased
employees were not covered by the CBA, but the Eighth Circuit found that reliance on
that case was misplaced. In Allied Chemical the High Court ruled that employers can
refuse to bargain with employees who have ceased employment without expectation of
further employment because they have stopped being employees. In that case, however,
the Court was discussing retirees, a group that did not share a community of interest with
current workers. In contrast, the deceased worker had a community of interest with the
current workers. Here, the issue was the employer’s continuing duty to resolve grievances
brought by former employees over a dispute that occurred during the worker’s
employment. Moreover, because the claim arose while the worker was an employee, the
CBA continued to control the issue and mandated arbitration of it.
Arbitration nor revoked by agency principles. The appeals court next analyzed
whether some other legal principle could revoke the arbitration provision following the
worker’s death. The employer argued that under the principles of agency, the union lost
the power to represent the employee because agency law bars agents from asserting the
rights of a deceased principle. The court, however, found that the union was not the
worker’s agent because as opposed to a true principle, the employee could not have
overridden the union’s wishes. The union had complete control of the grievance process.
Indeed, employees relied entirely on the union to file grievances. Furthermore, once the
union took over the grievance process, the employees were only allowed to attend
meetings by prior request to the union. Lastly, unlike the agent-principle relationship, in a
union-employee relationship, the union represents all represented employees and when
deciding whether to bring a grievance, must decide whether doing so would best serve all
14
employees, not just the grievant. Therefore, the court held that agency principles did not
revoke the arbitration provision.
Thus, because the CBA covered the deceased employee and the mandatory arbitration
provision was not revoked by agency laws, the Eighth Circuit reversed the prior denial of
the motion to compel and remanded the matter to the district court.
The case number is 11-3251.
Donald Ray Aubry (Jolley, Walsh, Hurley & Raisher) for Union. Andrew John Martone
(Hesse Martone) for Employer.
8thCir: Union charge against employer not baseless; court declines to set aside
results of election
Substantial evidence supported an NLRB determination that a union’s charge that an
employer unlawfully threatened to shutdown its facility if the union won an upcoming
election was not baseless or frivolous, ruled the Eighth Circuit in refusing to set aside the
results of an election won by the union (Warren Unilube, Inc v NLRB, August 28, 2012,
Colloton, S). In view of evidence that employees believed the employer was responsible
for a newspaper editorial opposing the union and suggesting the employer might shut
down the facility, the appeals court concluded that the union’s unfair labor practice
charge against the employer was not baseless or intended as a delay tactic, so as to
require that an election be set aside.
Election agreement. After a union petitioned the NLRB to be certified as the bargaining
representative of a unit of employees, the union and the employer entered into a
stipulated election agreement, and an election was scheduled. Two days before the
election, an editorial appeared in the local newspaper opposing the unionization efforts
and suggesting that if the union won, management could close the facility. The next day,
the union filed an unfair labor practice charge alleging the employer had threatened to
close its facility if the employees voted in favor of the union. Pursuant to “blocking
charge policy,” an NLRB regional director postponed the election and held the union’s
petition in abeyance. That same day, the employer’s president issued a memorandum
discussing the editorial and disavowing an intention to close the plant, regardless of the
outcome of the election.
Thereafter, the union requested to proceed with the election, and the parties entered a
second stipulated election agreement. Employees voted in favor of the union, and the
employer subsequently filed objections to conduct that allegedly affected the election
results. Specifically, the employer claimed that the union filed a “baseless” unfair labor
practice charge that delayed the election. It also denied responsibility for the editorial.
According to the employer, because the union had no basis for its charge and the
employer had immediately published a disclaimer, the election should have been held on
schedule. The actions of the union and the board destroyed the conditions necessary for a
valid election, it argued.
15
The regional director recommended overruling the employer’s objections and the
certification of the union. Following the union’s certification, the employer refused to
negotiate a collective bargaining agreement. Subsequently, unfair labor practice charges
were filed against the employer alleging it unlawfully refused to recognize and bargain
with the union. The NLRB declined to reexamine its certification decision and ordered
the employer to recognize and bargain with the union. The employer petitioned for a
review of that order.
Union charge not baseless. Observing that a threat to close a plant is “one of the most
potent instruments of employer interference” with employees, the Eighth Circuit
concluded that substantial evidence supported the board’s finding that the union charge
was not baseless or frivolous. Although the editorial did not attribute its information to
any source, given its content and the impending election, it was not unreasonable for the
board to accept the union’s assertion that it acted in good faith when it filed the charge
against the employer. There was evidence that the employees were talking about the
editorial the next day and they all seemed to believe the company was behind it.
Moreover, even though the employer issued its disclaimer, the employees continued to
hold to that belief. Such evidence suggested that the union’s concern was not baseless.
The court also disagreed with the employer’s suggestion that the fact that the union later
requested to proceed with the election demonstrated that the allegation was baseless when
filed. The rescheduled election occurred nearly a month after the editorial appeared. A
union may rationally conclude that a fair election is possible after the passage of time
diminishes the impact of the alleged unfair labor practice. Thus, it was not unreasonable
for the board to accept that the union followed that course in this instance.
Delay tactic. Similarly, the appeals court was not convinced that the board’s eventual
dismissal of the unfair labor practice charge showed that the union filed a baseless charge
as a delay tactic. A determination by the board that there was insufficient evidence of a
violation by the employer came after it conducted an investigation, and did not show that
the union had no basis for the charge on the eve of the election, concluded the court.
Given the timing of the editorial, its inflammatory content, and the lack of identified
sources for the information, the court declined to say that the board’s finding was
unsupported by substantial evidence.
Blocking charge policy. Finally, the court rejected the employer’s contention that the
election should be set aside because the regional director’s postponement of the election
violated board policy and gave credence to the union’s charge. Under the NLRB’s
“blocking charge policy, an election may be suspended pending resolution of unfair labor
claims,” noted the court. Where a charge is filed too late to permit adequate investigation
before the scheduled election, the regional director had the discretion to postpone the
election, to hold the election and impound the ballots, or to conduct the election and issue
a certification prior to an investigation.
In this instance, the employer asserted that the union’s charge was not supported by
substantial evidence and the election should not have been postponed. However, the
16
appeals court noted that substantial evidence is not a prerequisite to postponement of an
election under the board’s policy. Here, there was substantial evidence to support the
NLRB’s conclusion that the regional director had a sufficient basis to postpone the
election, and that the postponement did not interfere with a free and fair election.
The case numbers are 11-2664 and 11-2974.
Frederick J. Lewis (Lewis & Fisher) for Employer. Daniel Blitz for NLRB.
10thCir: Employer failed to preserve objections for appeal because arguments not
first presented to NLRB
Because an employer failed to develop its objections to unfair labor practice charges
before the NLRB, those unpreserved arguments could not be heard for the first time on
appeal, however meritorious they may be, ruled the Tenth Circuit (Public Service
Company of New Mexico v NLRB, August 28, 2012, Gorsuch, N). Under 29 USC Sec.
160(e), the employer had to present objections to the NLRB before they could be
considered by the court. Here, the appeals court determined that the employer failed to
meet those requirements where arguments presented to the court had not been raised
before the NLRB. Moreover, the court determined that the employer’s preserved
arguments failed on their merits.
This dispute arose when the employee was terminated for violating the employer’s ethics
policy and state law when he disconnected a customer’s gas service without obtaining
permission from his supervisor. In pursuing the employee’s discharge grievance, his
union requested information concerning the discipline imposed on non-union employees
who were alleged to have violated the employer’s ethics policy and state law. The
employer refused the request. Thereafter, the union filed a charge with the NLRB
alleging unfair labor practices. Following months of delay, on the eve of a hearing, the
employer relented and handed over to the union all the information it wanted.
Nevertheless, the Board found that the employer had acted unlawfully after concluding
that the information sought was relevant to the grievance, that the information request
was made in good faith, and the employer’s delay in providing the information was
unreasonable. The employer was ordered to post a notice informing employees of their
rights and the company’s promise to do better.
Disciplinary information. In its petition for review of the NLRB’s order, the employer
challenged whether the disciplinary information about non-union employees was relevant
to the union’s processing of the employee’s grievance. As an initial matter, the appeals
court noted that the employer clearly preserved its objection that union already possessed
disciplinary information about two non-union supervisors, and sought information about
their treatment only to harass the company. Although the employer made a terse twosentence objection, the court ruled that its submission was enough to preserve its claim
that information about the discipline of non-union employees was irrelevant because they
were not similarly situated to union employees, and the union was obligated to clearly
explain the relevance of such information.
17
Moreover, the Board’s opinion suggested that it fully understood both the nature and
scope of these two specific objections, noted the court. Consequently, the court held that
the employer’s submission presented qualifying “objections” on these two issues under
Sec. 160(e), by providing sufficient specificity and clarity to allow the NLRB to bring its
expertise to bear.
Failure to preserve objections. With respect to other objections, the court determined
that the employer failed to preserve those by first presenting its arguments before the
NLRB as required by Sec. 160(e). To determine whether Sec 160(e)’s “objection”
requirement has been satisfied, the court asks: Was the matter the petitioner seeks to raise
here pressed before the board with “sufficient specificity and clarity” so the tribunal was
aware it needed to be addressed? Here, the employer presented forceful arguments that
whether it treated the employee differently from other employees was irrelevant, and that
board precedent required the union to make at least some evidentiary showing that
differential treatment exists before it is entitled to discovery. However, the appeals court
determined that it had no authority to hear those objections because the employer never
presented them to the board. Further, the board’s failure to respond to these arguments
also suggested that it did not understand them to be in play.
The fact that the employer actually filed three other qualifying Sec. 160(e) relevance
objections before the board did not mean that it could pursue on appeal any other
tangentially related objections that it wishes. The statute speaks of the need to present
each objection in the singular. The point of the statute — to provide the NLRB with a
chance to pass on each objection before litigation ensues in the court — would be undone
if one objection could sweep in others hidden under its skirt, observed the court. Because
Sec. 160(e)’s formal requirement and substantive aim were not met, the appeals court
declined to hear the employer’s newly minted objections, whatever their merits may be.
The Supreme Court has long held that Sec. 160(e) is a nonwaivable jurisdictional bar to
consideration of objections not presented to the NLRB (Woelke & Romero Framing, Inc
v NLRB).
Preserved arguments. Turning to the merits of the three preserved objections, the court
quickly disposed of the employer’s arguments. The employer first asserted that
information about discipline of non-union employees is irrelevant because they are not
similarly situated to union employees. Although CBAs often impose different standards
for the treatment of union workers, in this instance, the ethics policy applying to the
employee’s termination applied to union and non-union employees equally. Thus, the
records sought by the union bore directly on the theory it sought to prove.
With respect to whether the union had to explain the relevance of the requested
information to an issue covered by the CBA, the court noted that while there was a kernel
of truth to the employer’s assertion, the record contained substantial evidence that the
union did in fact timely apprise the employer of the basis for its request. Finally, the
employer’s objection that the union’s request was motivated by an improper purpose —
the union sought a way around a protective order — also failed. Rather, the NLRB found
credible the testimony of a union official that he did not know whether two non-union
18
employees had been disciplined for causing a gas leak. Thus, the employer’s petition for
review was denied.
The case numbers are 11-9536 and 11-9540.
Paula G. Maynes (Miller Stratvert) for Employer. Nichole Lancia for NLRB.
Hot Topics in WAGES HOURS
Increase in minimum wage could create 100,000 jobs
A report published this week by the non-partisan Economic Policy Institute indicated that
an increase in the federal minimum wage of $2.65 over the next two years could add as
many as 100,000 jobs to the national economy. The report suggested that such an
increase would affect up to 28 million workers who would get almost $40 billion in
additional wages during that time. The report suggests that those wages would, in turn,
expand the U.S. gross domestic product (GDP) by roughly $25 billion, resulting in the
creation of approximately 100,000 net new jobs. According to the report, almost 55
percent of the beneficiaries of such an increase would be women.
Over the last month, legislation has been introduced in both the U.S House of
Representatives and the Senate to increase the minimum wage.
BLS report shows 90 percent of wage and salary workers had access to some form
of employee leave in 2011
According to a report prepared by the Bureau of Labor Statistics, 90 percent of wage and
salary workers had access to paid or unpaid leave at their main jobs in 2011. The BLS
also reports that 21 percent of wage and salary workers took paid or unpaid leave during
an average week and that those workers took an average of 15.6 hours. The report also
noted that 56 percent of wage and salary workers, who would have otherwise had to have
taken leave or who had no access to leave, were able to adjust their work schedules or
location.
These findings are from a supplementary set of questions asked as part of the 2011
American Time Use Survey (ATUS), a continuous household survey that estimates how
people spend their time. The data regarding leave were collected as part of the 2011
Leave Module sponsored by the DOL’s Women's Bureau and were collected directly
from wage and salary workers. The data thus represent only workers' knowledge on these
topics.
The BLS found that on average, 59 percent of wage and salary workers had access to
paid leave, while 77 percent had access to unpaid leave; 7 percent did not know whether
they had leave. Overall, 90 percent of American workers had access to some kind of
employee leave. Gender played little role in which workers had access to leave, with 90
percent of male and 91 percent of female workers having access.
19
The report also analyzed the kinds of leave available to workers in various industries.
Workers in management, business, and financial operations jobs were the most likely to
have access to paid leave (77 percent) and 76 percent of workers in the public sector had
access to paid leave, compared with 57 percent of private-sector workers. The report
indicates that workers holding only one job were more than 3 times as likely to have
access to paid leave than were part-time workers (71 percent compared with 22 percent.)
In 2011, 21 percent of wage and salary workers took paid or unpaid leave during an
average week and those workers took an average of 15.6 hours of leave. Women (23
percent) were slightly more likely than men (20 percent) to take leave from their jobs
during an average week. Of those wage and salary workers who took leave from their
main jobs during an average week, 57 percent used only paid leave and 40 percent used
only unpaid leave. Three percent of these workers used a combination of paid and unpaid
leave.
The data also showed that 56 percent of wage and salary workers were able to adjust their
work schedules or location of their main jobs instead of taking time off from work in
2011. Among wage and salary workers age 25 and over, 61 percent of those with a
bachelor's degree or higher were able to adjust their work schedules or location instead of
taking time off from work, compared with only 38 percent of workers with less than a
high school diploma.
Secretary of Labor Hilda L. Solis said that the DOL is “looking forward to engaging in an
in-depth analysis of the survey results.”
National Council on Disability recommends phase-out of paying lower wages to
workers with disabilities
On Thursday, August 23, the National Council on Disability (NCD) issued a report
calling for the phase-out of a provision in the FLSA that allows employers who get a
certificate from the DOL to pay workers with disabilities less than the federal minimum
wage. The report by the independent federal agency would end the Sec. 14(c) program in
phases over the next six years.
The NCD advises the White House on disability discrimination policy.
Recognizing that an immediate end to the program would adversely affect many workers
involved in the program, the NCD decided to adopt the phase-out approach. Such an
approach, the NCD said, will protect both workers and employers.
In the first step, the DOL will be barred from issuing any further issuing 14(c) certificates
following the passage of legislation ending the program. During this phase, the NCD
would also bar any Individualized Education Plan (IEP) from identifying placement in a
subminimum wage program as a permissible goal. In the second phase, all providers who
administer 14(c) certificates would be required to phase out of the program within two
years. Priority in this phase would be given to individuals who have held a 14(c)
20
certificate for 10 years or less. For individuals who have held a 14(c) certificate for a
period of time between 10 and 20 years, the phase out would occur over four years and
for individuals who have held a 14(c) certificate for more than 20 years, the phase out
would occur over six years.
The National Federation of the Blind praised the recommendation. The federation’s
president, Dr. Marc Maurer, said that he will “thoroughly review the NCD report and its
forthcoming legislative proposal in order to find ways to work toward our common goal
of eliminating the unfair, discriminatory, and immoral practice of paying workers with
disabilities less than the federal minimum wage.”
Republican platform calls for end to Davis-Bacon, card checks and PLAs; promises
to pass RAISE Act
The Republican party has laid out its approach to labor relations. In the platform unveiled
this week at its nominating convention, the GOP promises to repeal the Davis-Bacon Act
and to end the use of card-checks and project labor agreements.
The platform accuses the Obama Administration of “clinging to antiquated notions of
confrontation and concentrating power in the Washington offices of union elites.”
Specifically, the platform states that the administration has “strongly supported the antibusiness card check legislation to deny workers a secret ballot in union organizing
campaigns.” It also blasts the administrations for using PLAs and accuses it of turning the
NLRB into “a partisan advocate for Big Labor, using threats and coercion outside the law
to attack businesses.”
The GOP’s platform vows to block card check by enacting the Secret Ballot Protection
Act, which would also bar employer recognition agreements. The Obama Administration
had supported passage of the Employee Free Choice Act (EFCA) early on, which would
have contained a card check provision, but has done nothing to attempt to pass the law in
the last two years. The platform also vows to pass the RAISE Act, sponsored by Senator
Marco Rubio (R-Fla) that would allow employers to negotiate raises with unionized
workers while excluding their union from those talks. In addition, the platform calls for a
repeal of the Davis-Bacon Act, which sets prevailing wages for public construction
projects.
In addition, the platform pronounces the GOP support for enactment of a law that would
make Right-to-Work the law of the land and praises efforts by Republican governors to
diminish the power of public sector unions.
“We salute the Republican Governors and State legislators who have saved their States
from fiscal disaster by reforming their laws governing public employee unions,” it says.
“A Republican President will protect the rights of conscience of public employees by
proposing legislation to bar mandatory dues for political purposes.”
21
The Democratic convention is next week and it is expected that the platform will contain
more labor-friendly language.
LEADING CASE NEWS
2ndCir: Teacher’s claim he was denied tenure in retaliation for FMLA leave
revived; fact issue raised as to whether he worked three hours fewer than minimum
required for leave eligibility
A high school teacher who alleged that he was denied tenure in retaliation for taking
FMLA leave presented a fact issue as to whether he worked enough hours to be eligible
for leave, despite the fact that pursuant to the governing CBA, he worked three hours
fewer that the minimum required by the Act, the Second Circuit ruled in reversing
summary judgment in favor of the school district (Donnelly v Greenburgh Central School
District No 7, August 10, 2012, Lynch, G). The appeals court also found that the lower
court erred in ruling that because the teacher failed to show that he was qualified for
tenure under the standard applied to colleges and universities, he failed to present a
triable issue of fact regarding his FMLA-retaliation claim.
Tenure decision. Hired under a three-year probationary contract, the high school English
teacher was assigned to a magnet academy his first year. While there, he had perfect
attendance and received the highest overall rating in each of three evaluations.
Transferred to a different school for his final two years, he continued to receive good
evaluations. In the fall of his third year, however, he took several days of leave in order to
recover from gall bladder surgery. When he returned from leave, his performance
evaluations began to decline and he received criticism for his excessive absences,
including those taken during his medical leave. At the end of the year, his principal did
not recommend him for tenure. In denying tenure, the district relied only on the
evaluations from the second school.
District court’s decision. Alleging that the district denied him tenure in retaliation for
his leave, the teacher sued. Calculating his hours worked exclusively by reference to the
CBA, a magistrate judge found that the teacher was not eligible for FMLA leave as a
matter of law because he had worked only 1,247 hours in the preceding year, three hours
fewer than the minimum required under the FMLA. The magistrate then found that even
if he were eligible for leave, he did not show he was qualified for tenure under a standard
applied to colleges and universities. Finding the tenure issue dispositive, the district court
held that the employee failed to present a triable issue of fact regarding his FMLA claim.
It did not address the employee’s eligibility under the Act.
Hours worked. On appeal, the school district argued that pursuant to the CBA, teachers
worked 7.25 hours a day. Because the employee was present 172 days in the preceding
school year, the district concluded that he worked 1,247 hours; thus he was ineligible for
FMLA leave. Stating that the calculation “cannot stop there,” the appeals court turned to
29 C.F.R. Sec. 825.110(c)(1), noting that it specifically rejects the proposition that a
compensation agreement, like the CBA in this case, can conclusively determine the
computation of hours required for FMLA eligibility unless it accurately reflects all hours
22
an employee has worked for or been in service to the employer. Thus, the number of
hours worked is a factual question, and while the CBA can be considered, it is not
determinative.
Adopting a standard similar to that expressed by the Sixth Circuit in Staunch v Cont’l
Airlines Inc, the court stated that in cases where a plaintiff avers that a relevant
compensation agreement, like the CBA, does not accurately reflect all the hours the
employee actually worked, the employer has the burden of showing that the employee
has not worked the requisite hours. As a result, to succeed on a summary judgment
motion, an employer must show that either the hours alleged by the plaintiff could not
have occurred or that they are not compensable as a matter of law under the FLSA.
Here, the CBA implicitly acknowledged that on occasion, teachers must work outside of
the 7.25 hours anticipated. In addition, FMLA regulations expressly note that full-time
elementary and secondary teachers often work outside the classroom or at their homes
(29 C.F.R. Sec. 825.110(c)(3)). Moreover, the teacher alleged that he worked a total of
1.5 hours before and after class every day. Finding that this claim alone would be enough
to shift the burden to the district, the court observed that, in an evaluation of the teacher,
the principal corroborated this claim when he wrote that the teacher regularly arrived
early and stayed late in the afternoon working with kids “to ensure their success.”
Accordingly, the court stated, if the teacher did in fact work an extra half hour a day
beyond what the CBA required, he worked more than the three additional hours he
needed to demonstrate FMLA eligibility.
Integral and indispensable activities. The district next contended that even if the hours
the teacher claimed to work beyond those required by the CBA were spent on tasks
related to teaching, he failed to show that they were devoted to activities that were an
integral and indispensable part of his principal activity of teaching. Noting that the line
separating integral and indispensable activities from those that are not is not always clear,
the court found that the CBA and the regulations establish that a teacher’s principal work
activities, such as preparing lesson plans and grading tests, extend beyond the hours
worked in front of a class.
The court rejected the district’s argument that because the teacher did not provide details
on what he did during the extra hours he claimed to work, he failed to raised a genuine
fact dispute about whether he worked three additional compensable hours beyond the
CBA’s requirements. “A reasonable jury could conclude that even if a teacher is
permitted to go home after seven and a quarter hours, he or she is still required to prepare
proper lessons and formulate and grade examinations, and that the District will not accept
as an excuse for inadequate lesson plans and ungraded student papers that the teacher did
all he or she could in the time required under the CBA.” According to the court, the law
does not prevent teachers who work at home from ever counting that time for purposes of
FMLA eligibility. Thus, finding that the teacher raised a fact issue regarding whether he
was qualified for FMLA leave, the court held that the district was not entitled to summary
judgment on this issue.
23
Retaliation. The district next argued that the lower court correctly ruled that the teacher
failed to show that he was qualified for tenure under the standards announced by the
Second Circuit’s decision in Zahorik v Cornell Univ, and because he was not qualified
for his position, he could not establish a prima facie case of FMLA retaliation. Noting
that Zahorik is applicable only in the context of challenges to university tenure denials,
the court declined to apply it to teachers denied tenure in the elementary or secondary
schools. Rather, the teacher demonstrated that he held the basic qualifications to be
eligible for promotion. He held the necessary education and licensing credentials to serve
as a teacher and he worked as a teacher for the necessary period of time to be considered
for tenure. Of the nine performance reviews he received, he received the highest
evaluation possible in six. The remaining three all occurred after he took leave.
Consequently, he established that he was qualified for the position.
Finally, the court found that an adverse employment action occurred giving rise to an
inference of retaliatory intent. Before his medical leave, the employee’s evaluations were
extremely positive; after his leave, the evaluations deteriorated. Moreover, the negative
evaluations specifically noted his excessive absences, including those taken pursuant to
the FMLA (assuming his eligibility). Thus, the court concluded, the employee established
his prima facie case.
The case number is 11-2448-cv.
William D. Frumkin (Sapir & Frumkin) for Employee. Caroline B. Lineen (Rutherford &
Christie) for Employer.
3rdCir: Court upholds denial of class certification in suit alleging Wal-Mart
contracted with janitorial service companies in scheme to avoid wage standards by
using immigrant labor
A federal district court properly rejected final certification of an FLSA collective action
filed by janitorial workers who were hired by cleaning service companies under contract
to Wal-Mart, ruled the Third Circuit (Zavala v Wal Mart Stores Inc, August 9, 2012,
Smith, D). Considering the numerous differences among members of the proposed class,
the appeals court concluded that the plaintiffs had not met their burden of demonstrating
that they were similarly situated. Moreover, the appeals court also rejected RICO and
false imprisonment claims filed against the retail giant.
RICO claims. According to the plaintiffs, Wal-Mart paid its contractors with full
knowledge that they were hiring illegal immigrants to work in its stores. The complaint
alleged that two senior Wal-Mart executives understood that the contractors were hiring
illegal immigrants, that contractors would pick workers up at the airport and transport
them across state lines to work, and that workers were permitted to sleep in stores. The
complaint also alleged that contractors advertised in foreign newspapers for Wal-Mart
cleaning jobs. Additionally, the plaintiffs claimed they were coerced through threats to
report their immigration status to authorities. However, the record indicated that the
plaintiffs did not work exclusively for Wal-Mart, nor did the company hire its cleaners
24
exclusively from the pool of illegal immigrants. Thus, the appeals court upheld the
district court’s dismissal of the plaintiffs’ RICO claim that Wal-Mart engaged in a
scheme to encourage the hiring of illegal workers in order to reduce costs and increase
profits.
FLSA decertification. The district court’s decision to decertify the FLSA collective
action came after an examination of questionnaires filed by the plaintiffs revealed that the
opt-in plaintiffs worked for dozens of different stores, for numerous different contractors,
at various pay rates and methods. Their attempt to show they were similarly situated by
pointing to a Wal-Mart maintenance manual which set uniform standards for cleaning
stores failed. Similarly, the plaintiffs were unable to show that Wal-Mart exercised
control over the proposed class and that this control was common across stores. The
plaintiffs also asserted that Wal-Mart exercised the right to hire and fire cleaning crews;
however, they conceded that cleaners had limited contact with store managers and they
did not receive training from Wal-Mart.
Noting that a “stricter standard” applied to final certification of an FLSA collective
action, the Third Circuit agreed with the district court that the plaintiffs did not meet their
burden of demonstrating they were similarly situated. The plaintiffs had to satisfy their
burden by a preponderance of the evidence, the appeals court held — a conclusion
buttressed by the Supreme Court’s presumption, as set forth in Grogan v Garner, “that
this standard is applicable in civil actions between private litigants unless ‘particularly
important individual interests or rights are at stake.’”
Here, the similarities among the proposed plaintiffs were too few, and the differences
between them were too many. Being similarly situated does not mean simply sharing a
common status, like being an illegal immigrant. Rather, it means that one is subjected to
some common employer practice that, if proven, would help demonstrate a violation of
the FLSA. While common links — a scheme to hire and underpay illegal immigrant
workers, a uniform maintenance manual, and supervision by store managers — were
relevant, they were of minimal utility in streamlining resolution of the cases. Putative
class members worked in 180 different stores in 33 states and for 70 different contractors.
Also, individuals worked varying hours and for different wage rates, depending on the
contractor that employed them. Given the significant differences among the individual
claimants and the nature of their employment, the appeals court agreed with the district
court that the plaintiffs did not meet their burden of demonstrating that they were
similarly situated.
Involuntary servitude. With respect to their involuntary servitude claim, the court noted
that the plaintiffs presented evidence of some difficult working conditions, but they did
not allege that they were held in a labor camp or forced into daily labor by a religious
sect. Moreover, claims that the plaintiffs were threatened with deportation were likewise
insufficient to constitute involuntary servitude. Although the plaintiffs alleged that they
were often kept beyond the end of their shifts to finish their work, they did not claim that
they were forced to remain once that work was finished. The record demonstrated that the
plaintiffs often switched jobs, freely moving to different employers in different cities.
25
Thus, the appeals court concluded that the plaintiffs failed to adequately plead the RICO
predicate of involuntary servitude.
False imprisonment claims. The plaintiffs’ false imprisonment claims rested on WalMart’s practice of locking store exits while they worked after stores closed at night and
on weekends. According to the plaintiffs, managers were often unavailable to open the
doors; on occasion, they were not even in the store. Although the false imprisonment
claims survived Wal-Mart’s initial motion to dismiss, the retailer later offered affidavits
asserting that it locked its doors at night to provide security for its staff and merchandise,
that managers were often available to unlock doors, and that it had accessible emergency
exits. Also, deposition testimony showed that the plaintiffs could and sometimes did
leave for breaks. Moreover, Wal-Mart provided declarations that “emergency exits” were
properly marked and were not obstructed. The district court found Wal-Mart’s assertions
regarding the presence of emergency exits dispositive, as false imprisonment cannot
occur where there is a safe alternative exit. The appeals court agreed, and expanded on
the lower court’s analysis.
The majority of the plaintiffs’ false imprisonment claims failed because the workers
impliedly consented to their “imprisonment,” concluded the appeals court. From the very
beginning, the plaintiffs were aware of Wal-Mart’s policy to lock the main doors of its
stores. Nevertheless, they chose to continue coming to work. Even where plaintiffs
alleged that they became ill and could not leave before the end of the shift, the court
noted that their complaints were resolved by the availability of emergency exits. Thus,
the district court’s decision was affirmed.
The case number is 11-2381.
James L. Linsey (Linsey Law Firm) for Employees. David P. Murray (Willkie, Farr &
Gallagher) for Employer.
3rdCir: Despite history of attendance problems, employee discharged seven days
after calling off work from ER where her mother was taken moves forward on
FMLA claims
In a split decision, the Third Circuit ruled that an employee with prior attendance and
scheduling problems who was discharged seven days after she called off work from the
emergency room where her mother had been taken by ambulance could proceed on her
FMLA retaliation and interference claims (Lichtenstein v University of Pittsburgh
Medical Center, August 3, 2012, Van Antwerpen, F). The employee had raised genuine
fact questions of whether her notice to the employer was adequate, her invocation of
FMLA rights was a negative factor precipitating her termination, and the employer’s
justification for its action was pretextual. The appeals court thus vacated a lower court’s
grant of summary judgment in the employer’s favor. Judge Ambro dissented.
The employee was initially hired as a research assistant and later transferred to one of the
employer’s other hospitals, where she worked as a psychiatric technician. She was fired
26
four months later while still in her probationary period. During her short tenure, she had a
history of attendance, tardiness, and scheduling problems. The employer claimed the last
straw was on December 30, when she arrived several hours late and left several hours
early (she was sometimes scheduled to work 16-hour shifts). The employee, however,
asserted that she was fired because she had called a nursing supervisor on January 3 to
advise her that she was at a hospital emergency room, where her mother had been taken
by ambulance, and would be unable to work that day. She also requested leave again on
January 7.
The employee filed FMLA interference and retaliation claims, but the district court
granted summary judgment to the employer on both claims. The employee appealed. The
Third Circuit concluded that the employee presented sufficient evidence to proceed on
both claims. Because the employee established that she was entitled to take FMLA leave
on January 3 and/or January 8, and that the employer denied her right to do so, the circuit
court readily concluded that she stated a prima facie FMLA interference claim.
Notice requirement. In rejecting the employee’s FMLA retaliation claim, the district
court concluded that she failed to establish the requisite notice. The appeals court
disagreed. It was undisputed that the employee’s mother suffered a sudden, severe, and
unexpected health condition on January 3 that required her to remain in the hospital for
over a week?a serious health condition that entitled the employee take FMLA leave on
that date. The employee also correctly followed the employer’s call-off procedure by
calling a nursing supervisor soon after she arrived at the emergency room. This was
enough to raise a genuine dispute of whether the employee notified the employer as soon
as practicable under the facts and circumstances (as required in the case of unforeseeable
leave).
Moreover, the employee gave specific notice of a serious medical condition. As the court
emphasized, the employee told the nursing supervisor that she was currently in the
emergency room, that her mother had been brought to the hospital by ambulance, and that
she would be unable to work that day. The proper question is not whether the information
conveyed to the employer necessarily rules out non-FMLA scenarios, but rather, whether
the information permits the employer to reasonably determine whether the FMLA may
apply, the appeals court noted. It doesn’t matter that people in such circumstances might
not require in-patient care as defined by the FMLA. Because many people in such
circumstances do require such care, a reasonable jury could conclude that reasonable
notice was given under the circumstances. Moreover, the adequacy of the notice given
was consistent with the guidance set forth in 29 CFR 825.303(b). The employee “stated
that her mother was still at the hospital, which implied ‘continuing care,’ and it could
reasonably be inferred that a person brought by ambulance to an emergency room and
remaining at the hospital is ‘unable to perform daily activities,’” wrote the court. Thus,
there was a genuine dispute about whether the employee’s call to the nursing supervisor
met this standard, and her failure to provide more information when she returned to work
the next day did not defeat her claim at this stage.
27
The court rejected the employer’s assertion that the information provided by the
employee fell short of showing she was needed to care for her mother. She told the
employer that she was “currently in the emergency room” with her mother and “unable to
work that day.” From these statements, a reasonable fact-finder could infer the employee
was seeking leave to care for her mother. An employer does not have to have a doctor‘s
report “to realize that a person rushed to the hospital in an ambulance will likely receive
‘psychological comfort and reassurance’ by the presence of their loved ones,” a permitted
basis for FMLA leave. Nor did it matter whether the employer knew if the employee was
an only child or there were other family members at the hospital available to care for the
employee’s mother. Finally, the employee’s letter indicating she was needed to care for
her mother after she was released from the hospital did not imply she did not care for her
earlier, on January 3.
Causation. The employee also presented evidence sufficient to raise an inference of a
causal link between her FMLA leave and her termination. She was terminated seven days
after she invoked her right to FMLA leave and three days after her supervisor returned
from vacation. As the employer noted, she would have been discharged earlier if her
supervisor’s plans had not been thwarted by the employee calling off on the first day she
and her supervisor were scheduled to work the same shift, when the supervisor had
intended to fire her. This temporal proximity was sufficient to show causation. In
addition, there was evidence that the employer viewed the employee’s January 3 absence
as a negative factor in its termination decision. There was also evidence showing that the
supervisor was on notice of the employee’s request for FMLA leave, despite the
employer’s assertions otherwise. Thus, the employee met the prima facie causation
requirement.
Pretext. The employer asserted that the employee was fired due to her chronic tardiness
and absenteeism, and that the last straw was her late arrival and early departure on
December 30. However, the employee offered evidence belying the employer’s key
assertions that December 30 was the final straw and that the supervisor made the decision
to discharge the employee prior to her absence on January 3. Notably, the only evidence
that the discharge decision was made prior to the employee’s FMLA leave request on
January 3 was the supervisor’s own testimony, and she had contradicted herself on this
very point. Although the lower court found this timing issue immaterial, the appeals court
found it critical. The employer was aware of the employee’s performance deficiencies
before January 3, but did not fire her until after her leave that day. Although the employer
asserted that the delay was merely because the supervisor went on vacation and did not
have an opportunity to fire her sooner, the supervisor’s own testimony raised serious
doubts about this contention. Because the timing of the discharge decision could give rise
to the inference that she would have not been terminated had she not taken leave, the
employee met her burden of showing pretext..
The case number is 11-3419.
Charles H. Saul (Margolis Edelstein) for Employee. John J. Myers (Eckert, Seamans,
Cherin & Mellot) for Employer.
28
4thCir: Executive assistant to CEO of real estate investment trust was an exempt
administrative employee
The executive assistant to a senior executive for a real estate investment trust qualified as
an exempt administrative employee, ruled the Fourth Circuit in an unpublished opinion
(Altemus v Federal Realty Investment Trust, July 31, 2012, per curiam). Although salary
alone is not dispositive under the FLSA, the appeals court concluded that the employee’s
high salary created doubt as to whether she fell within the scope of the intended protected
class in light of the legislative goals of the Act.
The employee was the sole executive assistant to the company’s CEO and COO. The
employee alleged that she worked in excess of 40 hours per week during her tenure but
was not provided overtime compensation. Although there were 10 to 14 executive
assistants employed by the company during her tenure, she was the only one classified as
exempt. She was highly compensated with a base salary during her last three years in
excess of $84,000 plus an annual bonus. Additionally, the CEO would routinely give her
a $5,000 personal check at the end of the year. In contrast, the base salary of other
executive assistants was less than $60,000. Moreover, the employee was the only
executive assistant who participated in the employer’s 15 percent annual bonus pool,
while the other executive assistants were in a seven percent bonus pool. The employee
was also the only executive assistant given stock options.
Primary duty. The employee coordinated the CEO’s travel arrangements (he spent
approximately 30 percent of his time on business travel). She monitored his calendar, his
email, and his communications while he was away from the office. She also screened
incoming calls, coordinated meetings, prepared slides and handouts for meetings, and
assisted with the CEO’s participation on external boards and professional organizations,
all of which was necessary for the smooth administration of the CEO’s office. According
to the employee, however, her duties performing personal work for the CEO and his
family required 75 to 80 percent of her time.
The district court had rejected the employee’s argument that the “50 percent rule”
governed its analysis of her primary duty, finding that employees may qualify for the
FLSA’s administrative exemption if they devote less than half of their time to
administrative duties. The lower court also rejected the employee’s contention that she
spent only 20 to 25 percent of her time completing administrative duties directly related
to the management of the company and exercised little discretion, finding that the record
contradicted this proposition. Thus, the court ruled the employee fell within the FLSA’s
administrative exemption and was not entitled to overtime.
The Fourth Circuit affirmed, concluding the district court did not err in finding that the
employee’s primary duty related to the management of the company rather than the
CEO’s personal tasks. Despite the employee’s claims that she spent 75 to 80 percent of
her time performing personal tasks for the CEO, she did not allege that such work
supplanted her administrative tasks.
29
Discretion and independent judgment. The record established that the employee had
significant responsibilities as the sole administrative assistant to the CEO of a large
company. Her performance reviews prepared by the CEO reflected the high level of
independence and discretion she enjoyed. Moreover, the fact that she completed her
administrative tasks while the CEO was out of the office on business travel
approximately 30 percent of the time was further evidence of her exercise of independent
judgment and discretion.
In addition, the employee was paid a salary commensurate with her level of
responsibility. Taking bonuses into account, her salary was nearly twice that of the
company’s nonexempt assistants. This salary disparity further supported a finding of
exempt status. Thus, the appeals court again found the district court did not err.
Consequently, the district court properly awarded summary judgment in favor of the
employer on the employee’s overtime claims.
The case number is 11-2213.
Laurence S. Kaye (The Kaye Law Firm) for Employee. Christine Nicolaides Kearns
(Pillsbury Winthrop Shaw Pittman) for Employer.
6thCir: Deputy clerk of city council, employed by legislative body and outside civil
service laws, excluded from coverage under FLSA
A city council deputy clerk was unable to bring a suit for minimum wage and overtime
compensation for the three-month period in which he did not receive a regular paycheck
because he was excluded from coverage under the FLSA and corresponding state law
under the “legislative employee” exclusion, ruled the Sixth Circuit (Ellington v City of
East Cleveland, August 6, 2012, Cleland, R). The appeals court noted that although this
was its first opportunity to interpret and apply the “legislative employee” exclusion, the
statutory language was unambiguous: because the deputy clerk was employed by a
legislative body of a political subdivision of the state and was not subject to civil service
laws, he was excluded from FLSA coverage, even though he was not a policymaker or on
the staff of an elected official.
As a result of a political squabble between the mayor and city council, an employee
appointed to the position of deputy clerk did not begin receiving regular paychecks and
compensation for unpaid wages for three months, until the public officials resolved their
dispute. A year later, a state-court sponsored arbitration panel awarded damages to the
employee. The city appealed that award. Ultimately, the state court action was dismissed
in favor of a federal suit in which the employee sued the city for its failure to issue him
paychecks for the three-month period, in violation of the FLSA’s minimum wage and
overtime provisions as well as state law. The district court determined that the employee
was subject to the “legislative employee” exclusions to the federal and state minimum
wage and overtime provisions.
30
Legislative employee exclusions. On appeal, the employee challenged the district court’s
finding that the “legislative employee” exclusions of the FLSA and state law applied to
his position as deputy clerk. Under Sec. 203(e)(2)(C)(ii), individuals who work for a state
or a political subdivision are not employees subject to the FLSA if they are not subject to
civil service laws and are appointed to a policymaking position by elected officials,
among other exclusions. The employee did not contest the district court’s conclusion that
the first two elements of the exclusion were satisfied. Both sides acknowledged that the
employee was employed by a political subdivision of the state, and that the civil service
laws did not apply to his position as deputy clerk. However, the employee argued that the
district court erroneously found that he was a legislative employee.
The Sixth Circuit rejected the employee’s argument that the district court applied the
wrong analysis and that it should have applied the “personal staff” exclusion of Birch v
Cuyahoga Cnty Probate Ct. The appeals court determined that Birch was not controlling
in this case and to accept its “personal staff” analysis would render the “legislative
employee” exclusion mere surplusage in the FLSA.
Legislative body. Because the city council was undoubtedly the city’s legislative body,
the exclusive inquiry with respect to the third element was whether an employment
relationship existed between the employee and the city council, declared the appeals
court. In this instance, the economic realities of the relationship between the employee
and the city council overwhelmingly supported a finding that an employment relationship
existed. The city council had substantial authority to hire and fire the employee; it
interviewed him; it offered him the deputy clerk position; and it worked to ensure that he
was compensated for his services. Also, authority to remove the employee from his
position was vested in the city council. Further, his duties and work assignments directly
corresponded to city council activities.
Moreover, the employee’s lack of involvement in the development of legislation was
immaterial to determining whether he was an employee of the city council. Similarly, the
purported administrative and clerical nature of his duties did not alter the employment
relationship determination.
Consequently, the Sixth Circuit ruled that the district court correctly concluded that the
deputy clerk was employed by the city council, and so he was not an “employee” within
the meaning of the FLSA. Similarly, because the Ohio Minimum Fair Wage Standards
Act expressly adopted the FLSA’s definition of “employee,” the appeals court ruled that
the deputy clerk did not qualify as an employee subject to the benefits of Section 34a of
the state law.
The case number is 11-3700.
Bruce B. Elfvin (Elfvin Besser) for Employee. Ronald K. Riley (City of East Cleveland)
for Employer.
31
6thCir: Named plaintiff’s collective action properly dismissed for failure to file
written consent; action properly decertified as plaintiffs not similarly situated
In an unpublished decision, the Sixth Circuit affirmed a district court order decertifying
an FLSA collective action after it determined that the potential opt-in plaintiffs were not
similarly situated (Frye v Baptist Memorial Hospital, Inc, August 21, 2012, Cook, D).
The appeals court also affirmed the district court’s grant of summary judgment to his
former employer due to his failure to file a written consent within the statute of
limitations. Although the requirement that a named plaintiff in a collective action file a
written consent may seem redundant, the FLSA’s mandate was clear, observed the
appeals court. Consequently, because the employee did not file a written consent within
the Act’s two- and three-year statutes of limitations, his claim was properly dismissed.
Pay policy. The employee, who worked as a nurse, filed a collective action asserting that
his employer’s policy of automatically deducting (auto deduct policy) pay for employees’
lunch breaks violated the FLSA’s requirement that employees be paid for all time
worked. Although the district court initially granted conditional certification, following
discovery it decertified the collective action, finding that the employee failed to present
substantial evidence that the potential plaintiffs were similarly situated. Considering the
factors addressed in O’Brien v Ed Donnelly Enterprises, Inc, the court noted the varied
job duties of the opt-in plaintiffs, and the different “exception procedures” used to ensure
compensation for work performed during meal breaks. Further, the court found that the
employee failed to rebut the hospital’s formal policy of compensating for all time worked
with evidence of a de facto policy to the contrary. Many opt-in plaintiffs testified that the
employer paid them for time claimed through the exception procedures.
On appeal, the Sixth Circuit concluded that the district court properly exercised its
discretion in weighing the O’Brien factors and granting decertification. The district court
recognized that an auto deduct policy, without more, does not violate the FLSA.
Deposition testimony offered by the employee showed that some opt-in plaintiffs did not
know their compensation rights with respect to interrupted meal breaks, others
voluntarily declined to report work performed during meal breaks and still others lunched
at their workstation without realizing that it entitled them to compensation. However,
such evidence was indicative of individual FLSA violations, but failed to demonstrate
similarly situated plaintiffs experiencing a common injury. Unrebutted was the district
court’s finding that the vast majority of opt-in plaintiffs knew of the employer’s
exception procedures, were paid for time reported via those procedures, and were not
discouraged from reporting work performed during lunch breaks.
Written consent. Additionally, the Sixth Circuit agreed with the district court that the
employee did not file the necessary written consent within the FLSA statute of
limitations. To bring a collective action, a plaintiff must file a written consent to opt-in to
the collective action. The employee received his last paycheck from the hospital on April
27, 2007, but failed to file a written consent to the collective action. In this instance, the
employee argued that the FLSA does not require named plaintiffs, such as himself, to file
written consents. However, the appeals court noted that the plain language of 29 U.S.C.
32
Sec. 256(a) does. Courts construe the language of that provision to require a named
plaintiff in a collective action to file a written consent to join the collective action.
The court rejected the employee’s argument that it should excuse his claim from the
written consent requirement because the district court decertified the action. The
employee asserted that the decertification order acted as an amended pleading, converting
this action into an individual claim. However, the employee’s complaint unambiguously
signaled his intent to pursue a collective action under the FLSA, so he needed to comply
with the written consent requirement within the statute of limitations. Moreover, the
appeals court concluded that the employee’s unsigned deposition testimony did not
constitute the employee’s written consent. Further, his retainer agreement was signed
well after the expiration of the FLSA’s two- and three-year statute of limitations and so
could not be considered the filing of written consent. Finally, the filing of a collective
action complaint signed by his attorney did not satisfy the FLSA’s written consent
requirement.
The case number is 11-5648.
Alan G. Crone (Crone & McEvoy) for Employee. Paul E. Prather (Littler Mendelson) for
Employer.
7thCir: Employees’ settlement of wage claims did not moot appeal of decertification
of class and collective actions
The Seventh Circuit denied an employer’s motion to dismiss the appeal of a trial court’s
decision to decertify a Rule 23 class action after the named plaintiffs had entered a
settlement of the suit (Espenscheid v DirectSAT USA, LLC, August 6, 2012, Posner, R).
The appeals court rejected the employer’s contention that the suit became moot after the
settlement because the plaintiffs suffered no injury as a result of the trial court’s denial of
certification. Moreover, the court held, there was no relevant difference between the
collective and class actions with respect to the plaintiffs’ appeal of the decertification. If
appeals such as these were held to be precluded on standing grounds, there would be no
judicial economies, the appeals court reasoned, since if the named plaintiffs exit the
scene, then another class member can step forward and take their place.
The named plaintiffs were satellite installation technicians who brought nationwide class
and collective actions against their employer for uncompensated overtime. After initially
granting certification of the class and collective actions, the district court determined that
the classes were unworkable and decertified them, leaving the claims to proceed as
individual suits. Thereafter, the plaintiffs settled their claims, and the suits were
dismissed. However, the settlement reserved the plaintiffs’ right to appeal the
decertification. The plaintiffs appealed, and the employer sought dismissal of the appeal
on the ground that the plaintiffs suffered no injury as a result of the denial of certification,
and so the federal courts lost jurisdiction of the case.
33
Incentive rewards sought. On appeal, the plaintiffs pointed to a provision of the
settlement agreement, which stated that they were seeking an incentive reward for their
services as the class representatives. This reward was contingent on certification of the
class, so the prospect of such an award gave them a tangible financial stake in getting the
denial of class certification revoked and to entitle them to appeal that denial, the plaintiffs
argued. The Seventh Circuit agreed. It observed that a settling plaintiff would be an
adequate class representative if there was no significant conflict of interest and the
prospect of an incentive award was sufficient to motivate him to assume the risks of
serving as class representative and discharge the duties of the position fully. An important
motivating factor is that if the class action suit fails, no incentive award will be made,
while if it succeeds, the award may be larger.
Moreover, the court noted that judicial economy will rarely be served by preventing the
settling plaintiff from appealing. If the class is certified as a result of the appeal but the
plaintiff is replaced as class representative, still the efforts that he previously expended on
behalf of the class might entitle him to a modest incentive award. Therefore, the
employer’s motion to dismiss the appeal for want of jurisdiction was denied.
The case number is 12-1943.
Timothy D. Edwards (Axley Brynelson) for Employee. Miguel A. Estrada (Gibson, Dunn
& Crutcher) for Employer.
7thCir: Account manager terminated for poor performance after his manager
accompanied him on a drive-along with just one-days’ notice, could pursue FMLA
claims
An account manager who took several days of FMLA leave over a two-month period due
to a heart condition, and was subsequently terminated after his sales manager
accompanied him on a drive-along with just one-days’ notice, could pursue his FMLA
interference and reprisal claims, ruled the Seventh Circuit (Pagel v TIN Inc, August 9,
2012, Kanne, M). Reversing the district court’s dismissal of his claims on summary
judgment, the appeals court held that despite the lower court’s finding that the employer
had a nondiscriminatory reason for discharging the employee, the evidence revealed that
the drive-along may have been nothing more than a set-up.
In the summer of 2006, the account manager began experiencing chest pain and labored
breathing. After two doctor’s appointments in July, he was ordered to undergo a two-day
stress test. The test revealed a septal wall ischemia — a blockage in a portion of his heart.
Thereafter, he was admitted to the hospital overnight for an angioplasty and stent
placement and advised to rest for several days. His symptoms returned the following
week and he was admitted to the hospital for two nights. A CT Scan revealed an
unrelated mass in his left lung. A subsequent PET Scan of the mass was negative.
Five days before his angioplasty, the account manager was counseled about his
performance. His sales manager told him that his sales revenue and volume had declined
34
over the past two years and that his year-to-date numbers were the worst yet. He was also
berated for making the second fewest daily sales calls. Finally, he was advised that he
risked termination if his performance did not improve. He vigorously disputed the
manager’s underlying data, arguing that there were numerous sales of which he was
unaware and that the per-day calculations inaccurately included days that he received
FMLA-qualifying treatment.
While the account manager was in the hospital for his PET Scan, his sales manager
notified him that he would be evaluating his performance the following day during a
“sales ride.” Because the employee had no prior plans to be in the area selected by his
supervisor, he hastily attempted to schedule calls and ultimately was only able to arrange
one call. The ride-along did not go well and as a result, he was informed that he was
being terminated for poor performance.
Leave entitlement. The account manager sufficiently established that he suffered from a
serious health condition that made him unable to perform his job functions, and thus was
entitled to FMLA leave, ruled the appeals court. As to the employer’s assertion that his
PET Scan did not qualify as a serious health condition, the appeals court emphasized that
the employee’s serious health condition required inpatient stays in the hospital on two
occasions. His inpatient care on those nights qualified his heart ailment as a serious
health condition. Moreover, although he apparently made a few phone calls to customers
during his recovery, he could not fully perform the essential function of visiting existing
and prospective customers. Indeed, he would not have been provided a company car if
calling on customers required nothing more than a phone call.
A triable fact issue also existed as to whether the account manager gave sufficient notice
of his intent to take leave. He asserted that he spoke with his sales manager about his
chest pain prior to both his July appointments and that he believed he discussed his
upcoming two-day stress test with him in early August. Although his memory was
“fuzzy” about these discussions, he definitively stated that he both phoned and emailed
his manager about his need for leave prior to the angioplasty. And, although the account
manager’s description of his notice was ambiguous, the sales manager himself admitted
that he was aware of the employee’s chest pain and that the employee told him that he
was going to be in the hospital.
Interference. The district court erroneously held that the account manager was
undisputedly discharged for poor performance rather than for taking leave, ruled the
appeals court. Significantly, there was evidence in the record which reflected that the
employee was fired in part because he failed to meet sales expectations, even though he
had missed a number of days for FMLA treatment. There was also evidence that the sales
manager relied on inaccurate data in finding that the account manager failed to meet
certain reporting requirements. Although the employer presented evidence showing that
the employee was terminated for poor performance, the district court erred in accepting
as undisputed it’s argument that the employee’s disastrous performance during the
manager’s ride-along was a legitimate, nondiscriminatory ground for his termination.
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Rather, the appeals court found credence to the account manager’s assertion that his
performance during the ride-along should not be considered because the sales manager
set him up to fail. Notably, there was undisputed evidence that account managers need
one week to set up and prepare for a sales call. Thus, the one day he was given to
schedule sales calls guaranteed poor performance. Moreover, he was not required to show
that he objected to the sales manager’s ride-along at the time the request was made. First,
nothing required him to have objected as employees routinely comply with a superior’s
request regardless of how unfair he may perceive the request to be. Moreover, the he was
already “on thin ice” with the manager. Any failure to object also did not change the
inference that the sales manager’s request looked suspicious. A reasonable jury could
view this evidence as the manager setting the employee up for failure.
Further, the appeals court rejected the employer’s assertion that it had other independent
grounds to find the account manager’s performance to be unacceptable. Specifically, it
argued that his sales revenue and volume had declined, he had identified no new target
customers, and he did not contact two prospective customers in his territory. However, as
noted by district court, which relied solely on the ride as a nondiscriminatory reason for
the discharge, much of the other evidence of poor performance was disputed.
FMLA Reprisal. The account manager similarly presented enough evidence of pretext to
establish a causal link sufficient to defeat summary judgment on his reprisal claim.
Significantly, undisputed evidence suggested that account managers needed one week to
schedule and fully prepare for a customer visit. Thus, the one-day notice he was given
looked like nothing more than a set up. Although poor performance could certainly be a
valid, nondiscriminatory basis for his termination, a triable fact issue existed as to
whether that was the true reason his discharge.
The case number is 11-2318.
Robert J. Hanauer (Cusack, Fleming, Gilfillan & O’Day) for Employee. Christopher J.
DeGroff (Seyfarth Shaw) for Employer.
7thCir: Salesperson did not put employer on notice of need for FMLA-qualifying
leave, was terminated for faltering sales; FMLA interference and retaliation claims
fall short
A sales associate for a homebuilder failed to provide sufficient “inquiry notice” of her
need for FMLA leave to compel the employer to inquire further into whether she was
seeking FMLA-qualifying leave to care for her ailing parents, the Seventh Circuit held
(Nicholson v Pulte Homes Corp, August 9, 2012, Sykes, D). Moreover, the record
evidence showed the employee was discharged because she didn’t make a single sale for
several months running — not because she requested FMLA-protected leave. Therefore,
her FMLA interference and retaliation claims were properly disposed of on summary
judgment, the appeals court held, affirming the court below.
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Failing health, falling sales. The employee had assumed caretaking duties for her ailing
parents; her father suffered from leukemia, and her mother was later diagnosed with
kidney failure. She made occasional references to her parents’ illnesses at work, but the
only inkling she gave that she needed to take FMLA leave to care for them was a single
comment that she might have to take leave a few months down the road when her father
underwent chemotherapy. Nicholson never indicated that she needed time off to care for
her mother (in fact, she told her supervisor that she was driving her mother to medical
appointments on her days off and that she could not work outside her normal hours
because of her responsibilities to her parents). However, prior to her employer’s decision
to discharge her, the employee had requested only a single day off, to attend a doctor’s
appointment with her father — a request that her supervisor granted.
Meanwhile, the employee had been put on a performance improvement plan after missing
her sales quota for several months in a row and displaying a poor attitude. On June 22,
after the employee failed to make a single sale in the previous two months, company
executives decided to terminate her before her PIP expired. They planned to break the
news on the 24th, at the end of the week, after they arranged coverage for her sales office.
On the morning of the 23rd, the employee called in to report that she would not be in that
day because she had to take her mother to the emergency room. She was excused for her
absence, but was discharged the next day, as planned. The employee assumed at the time
that she was fired for failing to meet the terms of her performance improvement plan, she
acknowledged. But she filed an FMLA suit nonetheless, alleging unlawful interference
and retaliation. The lower court granted summary judgment in the employer’s favor,
concluding that the employee provided insufficient notice of her intent to take FMLA
leave; also, because she never engaged in FMLA-protected activity, she could not prevail
on her retaliation claim.
Insufficient notice. Concluding that the employee did not put the employer on adequate
notice of her need for FMLA-qualifying leave, the Seventh Circuit affirmed. She did not
explicitly inform the employer that she needed time off to care for her parents; at most,
the appeals court noted, “she made a few casual comments to her supervisors about her
parents’ ill health.” Also, at the time the discharge decision was made, the employee had
requested only one day off to care for her father, a request that was granted. Therefore,
she could not establish that her employer interfered with her rights under the Act.
FMLA regulations generally permit an employer to enforce notice and other procedural
requirements for invoking FMLA leave, the appeals court noted, pointing out that an
employee’s failure to comply with an internal leave policy is a sufficient ground for
termination and forecloses an FMLA claim. Here, as the company’s employee handbook
clearly stated, employees are required to notify HR, not just a supervisor, of their need for
FMLA leave. The employee failed to comply with this internal leave policy.
Yet, “[b]ecause an employee can be completely ignorant of the benefits conferred by the
FMLA and still be entitled to its protections,” the better question was whether the
employee put the employer on “inquiry notice” that she wanted FMLA-qualifying leave,
the court wrote. To do so, the employee was not required to specifically refer to the
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FMLA so long as she alerted her employer to the seriousness of the health condition for
which caretaking leave was sought. If she did provide sufficient notice that she needed
time off to care for her seriously ill parents, then the employer had a duty to inquire
further to confirm the employee’s FMLA entitlement. On the facts at hand, however, the
employee could not make this showing. While her supervisor was alerted to the
seriousness of her father’s health condition, she was not on notice that the employee
needed medical leave to care for him; at most, it was aware of the possibility that she
might need leave in the future. Also, the employee never described the seriousness of her
mother’s condition.
Interference, retaliation not shown. Nor could the employee show that her employer
denied or otherwise interfered with the employee’s right to FMLA benefits. At no time
did her supervisor deny a leave request. And, while termination may constitute a denial of
protected benefits, the discharge at issue here came two months after the employee’s
isolated leave request was granted, undermining any showing of causation. Further, the
employee’s assertion that the discharge decision was really made on June 24, the day
after she asked for protected leave to bring her mother to the ER, was purely speculative.
Without evidence that the employee provided sufficient notice of the need for FMLA
leave, she was unable to show she engaged in FMLA-protected activity; thus, her
retaliation claim failed at the outset as well. Even assuming she had made the requisite
threshold showing, the employee could not establish that she was placed on a PIP or
discharged as a punishment for taking leave. The undisputed evidence plainly revealed
that the employee was not performing her job satisfactorily. Her circumstantial evidence
of retaliatory intent, including claims of “suspicious timing,” came up short. Thus,
summary judgment to the employer was affirmed.
The case number is 11-2238.
Alejandro Caffarelli (Caffarelli & Siegel) for Employee. Christopher G. Ward (Foley &
Lardner) for Employer.
8thCir: Sales representative was independent contractor, not employee, could not
maintain claim for breach of unilateral employment contract
A manufacturer’ sales representative was an independent contractor, not an employee, so
that certain policy documents issued by the company outlining the parties’ relationship
did not create a unilateral contract, ruled the Eighth Circuit (Fesler v Whelen Engineering
Co, Inc, August 16, 2012, Colloton, S). The appeals court concluded that the plaintiff was
generally able to perform his work in the means and manner he saw fit, and the
manufacturer did not control the “methods, details, and particulars” of his work, so as to
give rise to an employer-employee relationship.
Employment relationship. As a commissioned sales representative, the plaintiff was
responsible for promoting and selling the employer’s automotive and industrial products
in his assigned territory. He did not sign any contract, agreement, or any other
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documentation related to his relationship with the company. Commission payments were
deposited into an account of a corporation formed by the plaintiff, and he then received a
paycheck with withholdings paid through that company. Through his company, the
plaintiff hired employees and paid office expenses and expenses incurred for promoting
and selling the manufacturer’s products. Throughout his tenure, the manufacturer
provided the plaintiff with documents that outlined the policies and procedures applicable
to sales representatives. Those documents identified sales representatives as “independent
contractors, not employees,” and stated that they were appointed on a non-exclusive
basis. In October 2007, the employer terminated the plaintiff’s relationship. Thereafter,
the plaintiff sued for breach of contract.
Breach of contract claim. The employee’s breach of contract claim alleged that policy
documents periodically issued by the manufacturer created a unilateral contract of
employment, and that the manufacturer breached that contract by terminating him
without just cause and by failing to provide him with notice of substandard performance
and an opportunity to cure. The manufacturer was granted summary judgment on the
basis that the plaintiff was an independent contractor, and the written policies were
insufficient to constitute a unilateral contract of employment, or that such a contract was
breached.
In this instance, the Eighth Circuit found that most of the factors for determining whether
an individual is an employee or independent contractor under Iowa law, as enunciated in
Iowa Mut Ins Co v McCarthy, weighed heavily in favor of finding that the plaintiff was
an independent contractor. The plaintiff was on the payroll of his own independent
business, he was paid commissions based on sales in his territory, not the amount of time
he worked. He hired, paid, and supervised his own employees, furnished his own office
equipment and supplies and paid for his own travel expenses, taxes, workers’
compensation, and insurance. Although the manufacturer exercised some control over the
plaintiff’s work, the limited degree of direction evidenced here did not make him an
employee. The judgment of the district court was affirmed.
The case number is 11-2666.
Robert Eugene Breckenridge, II (Breckenridge & Duker) for Employer. Leonard T.
Strand (Simmons Perrine Moyer Bergman) for Employer.
9thCir: Question whether employer can average commission payments over pay
periods under California law certified to California Supreme Court
The Ninth Circuit certified to the California Supreme Court the question of whether an
employer can average an employee’s commission payments over certain pay periods
when it is equitable and reasonable to do so in order to satisfy California’s compensation
requirements (Peabody v Time Warner Cable, Inc, August 17, 2012, per curiam).
Because of the complexity of the state law issues, and because of their significant policy
implications that will affect many employers and employees throughout the state, the
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Ninth Circuit concluded that the state high court was better qualified to answer the
certified question in the first instance.
In the underlying dispute, the employee was an account executive for Time Warner who
sold advertising on a commission basis. Her commissions were based on revenue
generated by advertising aired each month—the broadcast month. According to the
employee, she generally worked 45 hours per week and was paid on a bi-weekly basis.
Following her resignation, she brought a putative class action in state court on behalf of
former and current account executives alleging violations of California’s wage and
overtime laws. After the matter was removed to federal court, the parties stipulated to
decide summary judgment before class certification. The district court granted summary
judgment in favor of Time Warner, and the employee appealed.
Because there is no controlling precedent explaining how commissions should be
allocated, and this question would determine the remaining issues raised by the
employee’s appeal, the Ninth Circuit certified the question. Generally, under California
Labor Code Sec. 510, an employer is required to pay overtime to an employee who works
more than 40 hours per week. Similarly, Sec. 4(B) of IWC Wage Order 4-2001 requires
employers to pay employees on the established payday for the period involved, the
applicable minimum wage for all hours worked in the payroll period, whether the
remuneration is measured by time, piece, commission, or otherwise. The wage order
requires that employers pay employees overtime pay for hours over 40 in a workweek.
However, Sec. 3(D) of Wage Order 4-2001 creates an exemption from the overtime
requirements for employees paid through commission.
The employee contended that her earnings did not exceed one and one-half times the
minimum wage at all relevant times for application of the exemption. The analysis of
whether the employee’s earnings exceeded one and one-half times the minimum wage
hinged on how commissions can be calculated and allocated over pay periods.
Commissions were paid on a monthly basis, so during half of the pay periods the
employee’s pay was insufficient to qualify for the commissions paid exemption. On the
other hand, Time Warner argued that the employee’s earnings should be calculated based
on the broadcast month, so that her commissions counted towards the pay period in
which they were earned, rather than the actual pay period in which they were paid.
The Ninth Circuit noted that there was no California case directly on point that explains
how commission payments should be allocated over pay periods to determine whether an
employee qualifies for California compensation requirements. It is also not clear whether
courts may look to federal law under the FLSA to determine how commission payments
should be allocated.
The case number is 10-56846.
Daniel J. Turner (Van Vleck Turner & Zaller) for Employee. Joseph Scott Carr (Wargo &
French) for Employer.
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10thCir: Failure to provide medical documentation for continued absence dooms
employee’s FMLA and discrimination claims
An employee who did not provide medical records in response to a request for medical
certification of her need for leave did not establish that she had a serious health condition
for purposes of the FMLA, ruled the Tenth Circuit, affirming summary judgment for the
Air Force on her interference and retaliation claims (Smith v Wynne, August 20, 2012,
Lucero, C). Further, although there were questions on whether her supervisor actually
approved her leave, the employee’s race and sex discrimination claims also failed as a
matter of law because she could not show that the reason for her termination – the lack of
medical authorization of her need for leave – was pretext for discrimination.
AWOL. The African-American computer engineer at Tinker Air Force Base filed a
workers’ comp claim on March 5, 2004, alleging she was injured due to “stress and
pressure” from her supervisor. Three days later she asked the supervisor if she could take
leave and he agreed. She exhausted her leave on March 31 and called the supervisor to
check in. The parties disagree on what was said. She alleged that she requested leave
without pay (LWOP), which he approved. He asserted that he did not approve LWOP and
warned her that she was now absent without leave (AWOL). The supervisor noted on the
leave database that she was AWOL and contacted HR to ask what his options were. HR
responded it would not take action until she had been AWOL for 10 days.
On April 1, the employee signed in remotely, saw she was listed as AWOL, and called
the supervisor to say she had requested LWOP but the parties disputed whether he told
her the request was denied. On April 8, the supervisor removed the AWOL designation
from the database. On April 13 he exchanged emails with HR asking to begin the process
of terminating the employee. He reported that he had not heard from the employee since
the March 31 conversation. On April 14, the employee sent the supervisor a letter stating
she had requested LWOP on March 31 and he had approved it. Four days later, however,
he sent her a memo advising that she had not reported for duty since April 1, no one had
heard from her, and that no leave had been requested or granted. The memo advised that
if she was requesting special medical restrictions she should provide information on the
condition from her doctor and a form for that purpose was attached. The memo also
warned that if she did not report for regular full-time duty or provide sufficient medical
evidence to cover the absences, action might be taken to propose her termination.
On April 21, the employee wrote to the supervisor and his superiors explaining that she
had requested LWOP. On April 29 she submitted her medical records to the employee
who processed her workers’ comp claim. The records included a form indicating she was
able to return to work without restrictions. The employee also attached a note requesting
that the records not be released to the supervisor or second-level supervisor. On May 19
she was given a notice of proposed removal with 20 days for her to respond. She did not
reply and on July 8, she was terminated for unauthorized absences. In administrative
proceedings, an ALJ found that the Air Force did not violate the FMLA or discriminate
against the employee based on her race, gender, or disability. In a subsequent suit, the
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district court agreed and after a de novo review, granted summary judgment for the Air
Force. The employee appealed and the Tenth Circuit affirmed.
FMLA claims. The employee claimed the Air Force interfered with her FMLA rights
and retaliated against her for invoking those rights. As an initial matter, the court rejected
the jurisdictional and sovereign immunity challenges by the Air Force, concluding that
the ALJ considered the FMLA allegations and thus the employee did not waive them.
Further, she was not bringing freestanding FMLA claims but asserted them as an
affirmative defense to her termination, so there were no sovereign immunity concerns.
Nonetheless, the court concluded that the FMLA claims failed because she did not show
that she had a “serious health condition.” The only evidence was the records submitted to
the workers’ comp representative and these only included three or four outpatient visits to
treat anxiety, depression, and situational stress. Most significantly, they included a
recommendation that she could return to work without restrictions. Absent a serious
health condition, the employee was not covered by the FMLA and summary judgment
was properly granted on both the interference and retaliation claims.
Discrimination claims. Likewise, the employee’s gender and race discrimination claims
also failed as a matter of law. She established a prima facie case but could not overcome
the Air Force’s legitimate nondiscriminatory reason for her termination. Although there
were questions as to whether the supervisor lied to HR about not hearing from the
employee and whether she initially requested and was granted LWOP rather than be
AWOL, none of these went directly to the issue of pretext with respect to the termination
decision. Regardless of any earlier evasion, the supervisor made it clear to the employee
in the memo that she could take LWOP for a medical condition if she returned the work
restriction evaluation form. She was again warned on May 19 that she was in danger of
termination because she had not requested leave or provided medical documentation.
The employee argued that the supervisor “knew” she submitted medical records to the
workers’ comp representative but the only other evidence was that person’s statement
that she did not provide the medical documentation to the supervisor because of the
employee’s note requesting she not do so. Thus, the employee failed to cast doubt on the
asserted reason for her termination – her failure to provide medical authorization to
extend her absence from work. Accordingly, summary judgment was properly granted on
the discrimination claims as well.
The case number is 11-6195.
Melvin C. Hall (Riggs Abney Neal Turpen Orbison & Lewis) for Employee. Robert A.
Bradford (U.S. Attorney’s Office) for Employer.
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