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LexisNexis® Mealey's™ Employment Law Legal News
Headline Employment Law Legal News from LexisNexis®
ennsylvania Superior Court: Wages May Not Be Paid Via Payroll Cards
HARRISBURG, Pa. - A class of current and former McDonald's employees may proceed with their state wage claims against a couple who own and operate 16 franchises in Pennsylvania and pay their hourly employees via JP Morgan Chase Payroll Cards, a Pennsylvania Superior Court panel ruled Oct. 21, determining in a question of first impression that that form of payment, which subjects the employees to fees, does not meet requirements of the Pennsylvania Wage Payment and Collection Law (WPCL) (Alisha Siciliano, et al. v. Albert/Carol Mueller, et al., No. 1321 MDA 2015, Pa. Super.; 2016 Pa. Super. LEXIS 596).
California Federal Judge: FLSA Collective Claims Are Not Precluded By Earlier Suit
FRESNO, Calif. - A truck operator who had opted in to a wage-and-hour collective action that was ultimately denied certification before filing his own wage-and-hour collective action is not estopped from bringing his suit, a California federal judge ruled Oct. 26 (Williams Phillips, et al. v. Randy's Trucking, Inc., et al., No. 16-753, E.D. Calif.; 2016 U.S. Dist. LEXIS 148574).
3rd Circuit: Employer Can't Offset Paid Breaks Against Required Overtime
PHILADELPHIA - An employer that chooses to pay employees for meal breaks when it is not required to do so under the Fair Labor Standards Act (FLSA) may not use that compensation to offset that compensation against unpaid donning and doffing and information exchange between the shifts, a Third Circuit U.S. Court of Appeals panel ruled Oct. 7 (Bobbi-Jo Smiley, et al. v. E.I. du Pont de Nemours and Company, et al., No. 14-4583, 3rd Cir.; 2016 U.S. App. LEXIS 18242).
Judge Says Claims Against Employer Are Not Preempted By Trade Secrets Law
SAN FRANCISCO - After finding that a company's counterclaims for breach of a duty of loyalty and violation of California's unfair competition law (UCL) were not preempted by the California Uniform Trade Secrets Act (CUTSA), a California federal judge on Nov. 4 denied a former dispatcher's motion to dismiss the claims (Obie Banawis-Olila v. World Courier Ground Inc., et al., No. 16-cv-00982, N.D. Calif.; 2016 U.S. Dist. LEXIS 153608).
5th Circuit Reinstates Wage Suit By Worker Who Used Fake Identification
NEW ORLEANS - A Louisiana federal court erred when it, citing the plaintiff's use of fake identification, granted summary judgment to employers in a wage suit, the Fifth Circuit U.S. Court of Appeals ruled Oct. 31 (Javier Portillo, et al. v. Permanent Workers, L.L.C., et al., No. 15-30789, 5th Cir.; 2016 U.S. App. LEXIS 19755).
5th Circuit Finds Arbitrator Must Rule On Arbitration First In Wage Collective Dispute
NEW ORLEANS - A Texas federal court erred when it denied a motion to compel arbitration in a collective wage-and-hour suit, ruling that it could not consider the applicability of the arbitration agreement until later in the certification process, a Fifth Circuit U.S. Court of Appeals panel ruled Oct. 4, opining that the issue of arbitration must be decided first (Carlos Reyna, et al. v. International Bank of Commerce, No. 16-40057, 5th Cir.; 2016 U.S. App. LEXIS 18016).
Judge Finds Removal Of Wage-Related Class Was Improper, Remands
LOS ANGLES - A California federal judge on Oct. 13 granted a motion to remand a case filed by an employee who alleged wage-related and other claims against his former employer, finding that the amount in controversy did not meet the requirements for removal of a class action to a federal court (Gustavo Segura Santoya v. Consolidated Foundries Inc., et al., No. 16-02232, C.D. Calif.; 2016 U.S. Dist. LEXIS 142112).
10th Circuit: No Damages For Drivers For Unlawful Usage Fee
DENVER - A Kansas federal judge properly entered summary judgment for truck drivers on their claim that the motor carrier for whom they worked violated 49 Code of Federal Regulations Sections 376.12(i) by charging them $15 per week to use a satellite communications system, but erred in finding that the drivers were owed damages, the 10th Circuit U.S. Court of Appeals ruled Oct. 18 (Candace Fox, et al. v. TransAm Leasing, Inc., et al., No. 15-3203, 10th Cir.; 2016 U.S. App. LEXIS 18654).
2nd Circuit: Ball Park Employees' Overtime Wage Class Claims Fail
NEW YORK - Employees of the company running the concession stands at the Baltimore Orioles' ballpark failed to show that they are owed overtime wages as they fall within the Fair Labor Standards Act's (FLSA) "amusement or recreational establishment" exemption, a Second Circuit U.S. Court of Appeals panel ruled Oct. 3, affirming a rejection of the employees' class complaint (William A. Hill, et al. v. Delaware North Companies Sportservice, Inc., No. 15-2109, 2nd Cir.; 2016 U.S. App. LEXIS 17763).
5th Circuit: State Court Approved Settlement Can Preclude FLSA Claims
NEW ORLEANS - A California state court approved opt-out class settlement that released Fair Labor Standards Act (FLSA) claims precludes FLSA claims brought in a federal court on behalf of California plaintiffs, a Fifth Circuit U.S. Court of Appeals panel ruled Oct. 14 (Raymond Richardson, et al. v. Wells Fargo Bank, N.A., et al., No. 15-20711, 5th Cir.; 2016 U.S. App. LEXIS 18528).
California Employer To Pay $6 Million To Settle Federal, State Wage Claims
SAN FRANCISCO - A California federal judge on Oct. 11 granted preliminary approval of a $6 million settlement to be paid by a company that provides asset protection solutions to hourly technicians who are members of a putative class and collective action in which they alleged that they were denied compensation for work-related activities, including mandatory trainings and traveling to and from customer worksites (Edgar Viceral, et al. v. Mistras Group, Inc., No. 15-2198, N.D. Calif.; 2016 U.S. Dist. LEXIS 140759).
5th Circuit Won't Reconsider Split Ruling On Unnamed Opt-In Plaintiffs' Appeal
NEW ORLEANS - A Fifth Circuit U.S. Court of Appeals panel on Oct. 14 declined to reconsider its earlier ruling in which a split panel dismissed for want of jurisdiction an appeal by unidentified opt-in plaintiffs in a wage-and-hour dispute who were seeking an extension of equitable tolling (Joanna Marie Wilson, et al. v. Navika Capital Group, L.L.C., et al., No. 15-20204, 5th Cir.; 2016 U.S. App. LEXIS 18552).
Mexican Restaurant Chain Workers Granted Conditional Certification In Wage Suit
RALEIGH, N.C. - A North Carolina federal judge on Oct. 24 conditionally certified two classes of restaurant workers in a wage-and-hour suit, finding that the defendants failed to provide sufficient evidence of their claim that the workers already waived their claims in a settlement between the defendants and the U.S. Department of Labor (DOL) (Luis Antonia Arellano Galvan, et al. v. San Jose Mexican Restaurant of NC, Inc., et al., No. 16-39, E.D. N.C.; 2016 U.S. Dist. LEXIS 146544).
Rite Aid May Ask New York Plaintiffs Limited Questions About California Plaintiffs
NEW YORK - A New York federal magistrate judge issued an opinion on Oct. 31 granting Rite Aid Corp. permission to question three plaintiffs in an ongoing New York collective and class wage suit about their supervision of certain plaintiffs in current California wage suits without the plaintiffs' counsel present (Yatram Indergit, et al. v. Rite Aid Corporation, et al., No. 08-9361, S.D. N.Y.; 2016 U.S. Dist. LEXIS 150565).
Approval Of Wage-And-Hour Settlement Rejected, Further Information Requested
FLINT, Mich. - A Michigan federal judge on Oct. 31 denied approval of a confidential wage-and-hour settlement between an employer and its alarm response security officers (AROs), opining that she was unable to determine, based on the information provided, that the settlement is fair and reasonable (Marcus Williams, et al. v. Alimar Security, Inc., No. 13-12732, E.D. Mich.; 2016 U.S. Dist. LEXIS 150119).
McDonald's To Pay $3.75M To Settle Franchise Workers' Class Action Lawsuit
SAN FRANCISCO - Lawyers representing about 800 current and former employees at five restaurants owned by a single McDonald's franchisee in California on Oct. 28 filed a motion seeking preliminary approval of a wage-and-hour class action settlement in which McDonald's would pay the workers $1.75 million in back pay and damages and $2 million in legal fees (Stephanie Ochoa, et al. v. McDonald's Corp., et al., No. 14-2098, N.D. Calif.).
U.S. Supreme Court Hears Arguments On Permissible Vacancy Appointments
WASHINGTON, D.C. - The restrictions in Section 3345(b)(1) of the Federal Vacancies Reform Act of 1998 (FVRA) preventing an individual from serving as both a nominee and acting official for a single office apply only to a person serving as first assistant in that office and acting pursuant to the automatic service rule outlined in Subsection 3345(a)(1), Acting Solicitor General Ian H. Gershengorn told the U.S. Supreme Court on Nov. 7 (National Labor Relations Board v. SW General, Inc., doing business as Southwest Ambulance, No. 15-1251, U.S. Sup.).
Split 8th Circuit Reinstates Respiratory Therapist's Disability Bias Suit
ST. PAUL, Minn. - A respiratory therapist who was fired after temporary physical restrictions prevented her from having an up-to-date basic life support certification provided evidence that she could have performed the essential functions of her job, a divided Eighth Circuit U.S. Court of Appeals panel ruled Oct. 17, reversing a summary judgment ruling in favor of the therapist's former employer (Roberta Kowitz v. Trinity Health, et al., No. 15-1584, 8th Cir.; 2016 U.S. App. LEXIS 18559).
Whole Foods Faces Class Suit For Allegedly Denying Workplace Accommodations
CHICAGO - A former Whole Foods Market Group Inc. worker filed a class complaint Oct. 27 in the U.S. District Court for the Northern District of Illinois seeking damages for Whole Foods' alleged refusal to allow employees with medical restrictions to return to work, in violation of the Americans with Disabilities Act (ADA) (Yolanda Toolie, et al. v. Whole Foods Market Group, Inc., No. 16-10113, N.D. Ill.).
9th Circuit Reverses Hostile Work Environment Preemption Ruling
SEATTLE - A Washington federal court erred when it determined that an employee's state law gender-based hostile work environment claim was preempted by Section 301 of the Labor Management Relations Act (LMRA), a Ninth Circuit U.S. Court of Appeals panel ruled Nov. 4, reinstating the jury verdict from the first trial in favor of the employee and remanding for reconsideration of the damages (Mary Matson v. United Parcel Service, Inc., No. 13-36174, 9th Cir.; 2016 U.S. App. LEXIS 19927).
EMTs Permitted To Proceed With 2 Employment Claims Despite Never Applying For Job
CHICAGO - Failing to apply for a job with a replacement subcontractor does not doom retaliation claims filed against that employer by two emergency medical technicians (EMTs) under Title VII of the Civil Rights Act of 1964 and the Illinois Human Rights Act (IHRA), the Seventh Circuit U.S. Court of Appeals ruled Oct. 19 (Shannon Volling, et al. v. Kurtz Paramedic Services, Inc., No. 15-3572, 7th Cir.; 2016 U.S. App. LEXIS 18816).
6th Circuit: No Signature Necessary To Enforce Arbitration Agreement Under Kentucky Law
CINCINNATI - The lack of employee signatures on an arbitration agreement does not prevent enforcement, the Sixth Circuit U.S. Court of Appeals ruled Oct. 24, finding that under Kentucky law, the employees' decision to continue working "demonstrated assent" (Marlena Aldrich, et al. v. University of Phoenix, Inc., No. 16-5276, 6th Cir.; 2016 U.S. App. LEXIS 19296).
Federal Judge Remands Wrongful Termination Case Against CVS To State Court
LOS ANGELES - After finding that a pharmacy employee's claims for violation of California's unfair competition law (UCL) and labor code were not preempted by the Labor Management Relations Act (LMRA), a California federal judge on Oct. 31 remanded the case to a state court (Schirrelle Robertson v. CVS Pharmacy Inc., et al., No. 16-7533, C.D. Calif.; 2016 U.S. Dist. LEXIS 150665).
9th Circuit Reinstates Employee's Claims Against Union Over Denial Of Bump Back
PASADENA, Calif. - A former hospital employee who had her union negotiate an agreement with her employer that would permit her to "bump" back from her promotion to a prior position in the event of a reduction-in-force (RIF) may proceed with her claims against the union after she was terminated during a RIF, a Ninth Circuit U.S. Court of Appeals panel ruled Oct. 26 (Starla Rollins v. Community Hospital of San Bernardino, et al., No. 14-55971, 9th Cir.; 2016 U.S. App. LEXIS 19317).
7th Circuit: Employee's Tortious Interference Claims Fail Under Wisconsin Law
CHICAGO - Claims by a Wisconsin foundation's former director, who sued a co-worker and supervisor for tortious interference after he was fired, are governed by Wisconsin tort law and under that law fail because the statements made by the defendants leading up to the termination were "substantially truthful" and the motives underlying those statements have no effect, the Seventh Circuit U.S. Court of Appeals ruled Oct. 20 (Stephen D. Wesbrook, Ph.D. v. Karl J. Ulrich, M.D., et al., No. 15-3870, 7th Cir.; 2016 U.S. App. LEXIS 18872).
Texas Federal Judge Lets ERISA Claim Stand In Action Against Employer
DALLAS - A Texas federal judge on Oct. 24 partially denied a motion to dismiss for failure to state a claim in an action in which a man says he was illegally fired by his employer so it could stop paying for his medical expenses under its medical insurance plan, finding that he has sufficiently alleged facts that would support a claim under Employee Retirement Income Security Act Section 510 (Steve Wesley Culver, et al. v. United Commerce Centers Inc., et al., No. 3:16-cv-01055, N.D. Texas; 2016 U.S. Dist. LEXIS 146939).
Nursing Home Nurses Are Not Supervisors, May Unionize, 4th Circuit Rules
RICHMOND, Va. - The operator of a South Carolina nursing home failed to show, in its effort to stop unionization, that its nurses are supervisors, the Fourth Circuit U.S. Court of Appeals ruled Nov. 1 (Palmetto Prince George Operating, LLC, d/b/a Prince George Healthcare Center v. National Labor Relations Board, No. 15-2143, National Labor Relations Board v. Palmetto Prince George Operating, LLC, d/b/a Prince George Healthcare Center, No. 15-2221, 4th Cir.; 2016 U.S. App. LEXIS 19632).
NLRB's Refusal To Count Late Union Ballots Is Upheld By D.C. Circuit
WASHINGTON, D.C. - The National Labor Relations Board (NLRB) did not abuse its discretion or cause disenfranchisement of a determinative number of votes when it upheld a regional director's refusal to consider seven union ballots received two days after ballots were counted, the District of Columbia Circuit U.S. Court of Appeals ruled Nov. 1 (NCR Corporation v. National Labor Relations Board, No. 15-1230, D.C. Cir.; 2016 U.S. App. LEXIS 19588).
2nd Circuit Vacates Arbitration Ruling, Finds Wording Is Not Clear
NEW YORK - A Second Circuit U.S. Court of Appeals panel on Oct. 28 vacated a trial court's order to arbitrate an employee's discrimination and retaliation claim, finding that the arbitration requirement in the employee's collective bargaining agreement (CBA) was not "clear and unmistakable" when it came to discrimination and retaliation claims (Winston Lawrence v. Sol G. Atlas Realty Co., Inc., et al., No. 15-3087, 2nd Cir.; 2016 U.S. App. LEXIS 19446).
6th Circuit Upholds Ruling For UPS On Demoted Worker's Bias Claims
CINCINNATI - A United Parcel Service Inc. (UPS) worker who was demoted following service issues failed to show that he was the victim of racial or disability bias, the Sixth Circuit U.S. Court of Appeals ruled Oct. 24, affirming a trial court's decision and award of costs (William Tennial v. United Parcel Service, Inc., et al., No. 15-6356, 6th Cir.; 2016 U.S. App. LEXIS 19106).
2nd Circuit Certifies Question To New York Court In Pregnancy Bias Suit
NEW YORK - A Second Circuit U.S. Court of Appeals panel on Nov. 1 asked the New York Court of Appeals to establish the standard for awarding punitive damages under New York state law in a pregnancy discrimination case (Veronika Chauca v. Jamil Abraham, et al., No. 15-1777, 2nd Cir.; 2016 U.S. App. LEXIS 19597).
California Court Finds Employee's Claims Are Not Subject To Arbitration
SAN DIEGO - A California appeals court on Oct. 3 affirmed a trial court's decision to deny a company's motion to compel arbitration, finding that a former employee never agreed to arbitrate causes of action for violation of California's unfair competition law (UCL) and fraud related to a plan and stock purchase agreement (Jey Won v. Vault Bioventures Inc., et al., No. D069130, Calif. App., 4th Dist.; 2016 Cal. App. Unpub. LEXIS 7173).
Obama Administration Calls For Restrictions On Noncompetition Clauses
WASHINGTON, D.C. - The Obama administration on Oct. 25 issued a "state call to action" for restrictions on noncompete agreements that ban workers from starting a company or going to work for a competitor for a certain period after leaving a job, saying it would empower and inform consumers, workers and entrepreneurs and ultimately boost the economy.
Salesman Who Was Fired 2 Months After Hiring Failed To Prove Age Bias
PHILADELPHIA - A mulch salesman who was hired and fired within two months' time failed to show that his age, 63, caused his termination, a Third Circuit U.S. Court of Appeals panel ruled Nov. 7 (David Palmer v. Britton Industries, Inc., No. 16-1010, 3rd Cir.; 2016 U.S. App. LEXIS 20026).
Split 6th Circuit Panel: Grocery Clerk May Proceed With Federal Bias Claims
CINCINNATI - A former grocery store clerk who was fired after almost four decades based on lifting restrictions may proceed with his federal age and disability bias claims, a split Sixth Circuit U.S. Court of Appeals majority ruled Oct. 21, finding that the clerk submitted evidence of age discrimination and that there are factual disputes regarding whether the clerk was qualified for his position with or without accommodation (Kenneth W. Camp v. Bi-Lo, LLC, No. 16-5080, 6th Cir.; 216 U.S. App. LEXIS 19053).
Judge Decides Motions To Exclude Expert Testimony In Employer Negligence Suit
MILWAUKEE - In an employer negligence lawsuit, a Wisconsin federal judge decided Nov. 3 several motions filed by the employer to exclude testimony offered by an ergonomist, an employee's former treating physician and a medical expert to support the employee's case that his diagnosis of osteoarthritis was caused by his work (David Rowley v. Union Pacific Railroad Co., No. 11-46, E.D. Wis.; 2016 U.S. Dist. LEXIS 153391).
Oklahoma Supreme Court Affirms $30.47M Verdict In 2010 Pipeline Explosion
OKLAHOMA CITY - The Oklahoma Supreme Court on Oct. 11 upheld a $30.47 million jury verdict for C&H Power Line Construction Co. in a case in which a man was killed in a 2010 Texas natural gas pipeline explosion that resulted in a sale of the company at substantially less than its value at the time of the accident, saying that C&H's expert's testimony "reasonably supported the verdict" (C&H Power Line Construction Co. v. Enterprise Products Operating LLC, et al., No. 112177, Okla. Sup.; 2016 Okla. LEXIS 108.).
NHL Seeks To Dismiss Second Amended Complaint Of Hockey Player's Estate
CHICAGO - The National Hockey League (NHL) on Nov. 4 asked the federal judge in Illinois overseeing a wrongful death suit brought by the estate of a former professional hockey player to reconsider his order allowing the estate to file a second amended complaint, saying the claims brought by the estate in the second amended complaint are preempted by Section 301 of the Labor Management Relations Act of 1947 (Len Boogaard, et al. v. National Hockey League, et al., No. 13-C-4846, N.D. Ill.; 2016 U.S. Dist. LEXIS 134232).
9th Circuit Upholds Arbitration Ruling In USERRA Challenge
PASADENA, Calif. - A member of the U.S. Navy Reserve who sued his former employer for firing him when he was called up for active duty must submit his claims to arbitration pursuant to his employment agreement because there is currently nothing in the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) barring that, a Ninth Circuit U.S. Court of Appeals panel ruled Oct. 14 (Kevin Ziober v. BLB Resources, Inc., No. 14-56374, 9th Cir.; 2016 U.S. App. LEXIS 18516).
New York Appeals Panel: Ex-Franchisees Entitled To Unemployment Benefits
ALBANY, N.Y. - A New York appellate panel on Oct. 27 upheld a state Unemployment Insurance Appeal Board ruling that a claimant is entitled to unemployment insurance benefits because the franchisor of his former cleaning service's actions and franchise agreement created an employer-employee relationship (In the Matter of the Claim of Bertrand Baez, No. 520746, N.Y. Sup., App. Div., 3rd Dept.; 2016 N.Y. App. Div. LEXIS 6946).
6th Circuit: No Accommodation Available For Disabled Public Works Employee
CINCINNATI - A Tennessee city public works employee who was terminated after his doctor ordered that he could no longer perform outdoor work failed to show that there was an available indoor job for which he was qualified, the Sixth Circuit U.S. Court of Appeals ruled Oct. 25, affirming a trial court's ruling for the city (Jimmy Mathis v. City of Red Bank, No. 16-5195, 6th Cir.; 2016 U.S. App. LEXIS 19423).
U.S. Supreme Court To Decide How EEOC Subpoenas Should Be Reviewed
WASHINGTON, D.C. - The U.S. Supreme Court on Sept. 29 agreed to hear an appeal by an employer accused of pregnancy discrimination challenging the Ninth Circuit U.S. Court of Appeals' application of a de novo standard of review to a trial court's determination of relevance of information sought by an Equal Employment Opportunity Commission subpoena (McLane Company, Inc. v. Equal Employment Opportunity Commission, No. 15-1248, U.S. Sup.).
Split En Banc 11th Circuit Bars Applicant From Suing For Disparate Impact
ATLANTA - A job applicant who claims that he was unsuccessful in attaining employment due to the employer's refusal to hire individuals based on age may sue for disparate treatment but not disparate impact, a split en banc 11th Circuit U.S. Court of Appeals ruled Oct. 5 (Richard M. Villarreal, et al. v. R.J. Reynolds Tobacco Company, et al., No. 15-10602, 11th Cir.; 2016 U.S. App. LEXIS 18074).
8th Circuit: Assistant Failed To Show Firing Was Pretext For Age Bias
ST. PAUL, Minn. - An administrative assistant who was terminated following an independent operations audit failed to show that her firing was actually due to her age and not because many of her duties had been automated, an Eighth Circuit U.S. Court of Appeals panel ruled Sept. 14 (Sharilyn Haggenmiller v. ABM Parking Services, Inc., No. 15-3107, 8th Cir.; 2016 U.S. App. LEXIS 16787).
6th Circuit: Performance Issues, Not Age Bias Caused Wal-Mart Worker's Firing
CINCINNATI - A Wal-Mart Stores Inc. employee who was terminated following a safety-hazard incident failed to show that the real reason for her firing was her age, the Sixth Circuit U.S. Court of Appeals ruled Sept. 9 (Reva E. Richardson v. Wal-Mart Stores, Inc., No. 15-1142, 6th Cir.; 2016 U.S. App. LEXIS 16565).
Office Depot Assistant Managers Granted Certification In Wage Suit
NEWARK, N.J. - A New Jersey federal judge on Sept. 13 granted final certification of a collective action filed by assistant store managers (ASMs) seeking unpaid overtime wages under the Fair Labor Standards Act (FLSA) and certified three out of four proposed classes alleging violations of various state wage-and-hour laws (Kyle Rivet, et al. v. Office Depot, Inc., No. 12-2992, D. N.J.; 2016 U.S. Dist. LEXIS 123655).
11th Circuit Allows FLSA Collective Action, State Law Class Action In 1 Suit
ATLANTA - A Fair Labor Standards Act (FLSA) collective action and Federal Rule of Civil Procedure 23(b)(3) state law class action are permitted in the same proceeding, an 11th Circuit U.S. Court of Appeals panel ruled Sept. 28, reversing a ruling by the trial court finding that those two types of actions are "mutually exclusive and irreconcilable" (Kevin Calderone, et al. v. Michael Scott, No. 15-14187, 11th Cir.; 2016 U.S. App. LEXIS 17606).
California Federal Judge: Nurses' Wage Class Claims Must Remain In Federal Court
SAN FRANCISCO - A California federal judge on Sept. 2 denied a motion to send a wage class complaint brought by nurses who are temporarily employed in hospitals during labor disputes back to state court, finding that the amount in controversy exceeds $5 million (Karen Mackall v. Healthsource Global Staffing, Inc., No. 16-3810, N.D. Calif.; 2016 U.S. Dist. LEXIS 119292).
Partial Dismissal, Tolling Denied In Servers' Wage-And-Hour Class Suit
CHICAGO - A restaurant server may proceed with her class complaint seeking wages for time spent on nonserving duties, an Illinois federal judge ruled Sept. 8; however, the judge ruled that the server's request to toll the statute of limitations was overbroad (Katrina Soto, et al. v. Wings 'R Us Romeoville, Inc., et al., No. 15-10127, N.D. Ill.; 2016 U.S. Dist. LEXIS 121223).
$500,000 Wage Settlement By Hair Club For Men Granted Partial Approval
SAN FRANCISCO - A California federal judge on Sept. 22 granted final approval of a $500,000 settlement to be paid by Hair Club for Men LLC to settle employees' wage claims; however, the judge denied a request for incentive awards for the two named plaintiffs and awarded amounts for attorney fees and costs below the amount requested (Teresa Clemens, et al. v. Hair Club for Men, LLC, et al., No. 15-1431, N.D. Calif.; 2016 U.S. Dist. LEXIS 130710).
Former Division 1 Student Athlete Files Class Suit Seeking Wages
SAN FRANCISCO - A former University of Southern California football player filed a class complaint on Sept. 26 in the U.S. District Court for the Northern District of California seeking unpaid wages and overtime, liquidated damages and other penalties from the National Collegiate Athletic Association (NCAA) and PAC-12 Conference (Lamar Dawson, et al. v. National Collegiate Athletic Association, et al., No. 16-5487, N.D. Calif.).
California Federal Judge Sends Consolidated Wal-Mart Wage Suit Back To State Court
LOS ANGELES - A California federal judge on Sept. 19 granted a motion requesting remand of a consolidated class complaint accusing Wal-Mart Stores Inc. of various wage violations, finding that Wal-Mart failed to show that the amount in controversy exceeds $5 million and filed an untimely removal (Polo Garcia, et al. v. Wal-Mart Stores Inc., No. 15-5337, C.D. Calif.; 2016 U.S. Dist. LEXIS 127476).
New York Federal Judge Consolidates 3 Wage Suits Against Italian Restaurant
NEW YORK - A New York federal judge on Sept. 23 agreed to consolidate three wage-and-hour suits filed against a New York City Italian restaurant, granted the plaintiffs' motion for class certification and agreed to toll the claims of absent class members (Raul Pichardo, et al. v. Carmine's Broadway Feast Inc., et al., Nos. 15-3312, 15-4046, 15-4049, S.D. N.Y.; 2016 U.S. Dist. LEXIS 130658).
Split En Banc 5th Circuit Affirms Class Certification In Pyramid Scheme Suit
NEW ORLEANS - A sharply divided en banc Fifth Circuit U.S. Court of Appeals on Sept. 30 affirmed certification of a class of individuals who signed up to sell utility contracts to others but now seek to recover the money they lost, alleging that they were part of a fraudulent pyramid scheme (Juan Ramon Torres, et al. v. S.G.E. Management, L.L.C., et al., No. 14-20128, 5th Cir.; 2016 U.S. App. LEXIS 17746).
7th Circuit: No Proof Of More Than 40 Hours Worked Per Week Dooms Wage Claims
CHICAGO - An Indiana county worker who was fired for working extra hours after being told that he was not allowed failed to provide sufficient evidence of working more than 40 hours per week in violation of the Fair Labor Standards Act (FLSA), the Seventh Circuit U.S. Court of Appeals ruled Sept. 22, affirming a trial court's summary judgment ruling in favor of the county (James Melton v. Tippecanoe County, No. 14-3599, 7th Cir.; 2016 U.S. App. LEXIS 17352).
5th Circuit Affirms $3.7M Award For Truck Drivers In Wage-And-Hour Dispute
NEW ORLEANS - A Fifth Circuit U.S. Court of Appeals panel on Sept. 20 affirmed a Texas federal court's award of $3,728,613.91 in a wage-and-hour suit brought by truck drivers (Nicole Olibas, et al. v. John Barclay, et al., Reginald E. Williams, et al. v. Native Oilfield Services, L.L.C., et al., No. 15-10919, 5th Cir.; 2016 U.S. App. LEXIS 17359).
Massachusetts Federal Judge Transfers Cleaning Franchisees' Claims To California Federal Court
BOSTON - A Massachusetts federal judge on Sept. 13 granted three California plaintiffs' motion to sever and transfer their class action claims against a cleaning franchisor to the U.S. District Court for the Northern District of California, saying that California has a greater interest in this case and that all claims brought by Massachusetts plaintiffs have been dismissed (Giovani Depianti, et al. v. Jan-Pro Franchising Inc., No. 08-10663, D. Mass.; 2016 U.S. Dist. LEXIS 124106).
Franchise Association Joins Group Suing Over New Overtime Rule
SHERMAN, Texas - The International Franchise Association (ILA) and a coalition including the U.S. Chamber of Commerce, the Texas Association of Business, the National Automobile Dealers Association, the National Association of Manufacturers and more than 50 other national and Texas business groups on Sept. 20 filed a legal challenge to the Obama administration's overtime rule, arguing that the U.S. Department of Labor (DOL) exceeded its statutory authority in issuing the regulation and violated the Administrative Procedure Act (States of Nevada, et al. v. United States Department of Labor, et al., No. 4:16cv731, E.D. Texas).
Jani-King Asks 3rd Circuit To Rehear Its Employment Class Certification Ruling
PHILADELPHIA - One of the largest commercial cleaning franchisors on Oct. 5 filed a petition for rehearing or rehearing en banc of the Third Circuit U.S. Court of Appeals panel's 2-1 decision that a Pennsylvania federal judge properly certified a class of franchisees suing Jani-King over their employment classification, saying it conflicts with Third Circuit and U.S. Supreme Court class action decisions (Darryl Williams, et al. v. Jani-King of Philadelphia, et al., No. 15-2049, 3rd Cir.).
Split D.C. Circuit: NLRB Is Guilty Of Bad Faith; Employer Is Owed Attorney Fees
WASHINGTON, D.C. - The National Labor Relations Board is guilty of bad faith for knowingly forcing parties "to waste time and resources litigating" a case over an employer's failure to bargain a reduction of hours by refusing to follow the District of Columbia Circuit U.S. Court of Appeals' longstanding precedent, a split District of Columbia Circuit panel ruled Sept. 30, awarding the employer $17,649 for attorney fees (Heartland Plymouth Court MI, LLC, doing business as Heartland Health Care Center - Plymouth Court v. National Labor Relations Board, No. 15-1034, D.C. Cir.; 2016 U.S. App. LEXIS 17688).
11th Circuit Orders Narrowing Of NLRB's Order Or More Fact Finding In Union Dispute
ATLANTA - The 11th Circuit U.S. Court of Appeals on Oct. 3 enforced in part and denied enforcement in part of an order by the National Labor Relations Board (NLRB) regarding mixed-use areas in a Mercedes-Benz plant and the distribution of union literature and ordered the NLRB to narrow the scope of its order or conduct additional fact finding regarding the other areas it addressed in its remedy but were not thoroughly considered (Mercedes-Benz U.S. International, Inc. v. National Labor Relations Board, No. 15-10291, 11th Cir.; 2016 U.S. App. LEXIS 17775).
5th Circuit: NLRB Erred Finding Lockout Was Caused By Anti-Union Animus
NEW ORLEANS - The National Labor Relations Board erred when it determined that an employer that locked employees out following the end of a strike was motivated by anti-union animus based on the actions it took after the lockout ended, a Fifth Circuit U.S. Court of Appeals panel ruled Sept. 23, finding that most of the actions did not violate the National Labor Relations Act (NLRA) and that those actions that did were not caused by animus (Dresser-Rand Company v. National Labor Relations Board, No. 15-60474, 5th Cir.; 2016 U.S. App. LEXIS 17432).
Ambulance Company To High Court: Acting General Counsel Served In Error
WASHINGTON, D.C. - The restrictions in Section 3345(b)(1) of the Federal Vacancies Reform Act of 1998 (FVRA) are clear and unambiguous and apply to all acting officers, not just first assistants, SW General Inc. argues in its respondent brief filed Sept. 19 in the U.S. Supreme Court, seeking affirmance of a ruling by the District of Columbia Circuit U.S. Court of Appeals in which the appellate panel found that a former acting general counsel of the National Labor Relations Board served in violation of the FVRA for nearly two years and, as a result, the unfair labor practice complaint he issued against an ambulance company was unauthorized (National Labor Relations Board v. SW General, Inc., doing business as Southwest Ambulance, No. 15-1251, U.S. Sup.).
5th Circuit Rejects Con-way's Objections To Union Election
NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on Sept. 27 enforced a National Labor Relations Board order upholding a union election by Con-way Freight Inc. workers in Texas, opining that while the election was "imperfect," the facts, taken as a whole, "do not raise 'a reasonable doubt' as to the validity of this election" (Con-way Freight, Incorporated v. National Labor Relations Board, No. 15-60861, 5th Cir.; 2016 U.S. App. LEXIS 17545).
Split D.C. Circuit: Employees' Speech In News Segment Was Protected
WASHINGTON, D.C. - Statements made by satellite television installers on a television news segment protesting pay changes were protected under the National Labor Relations Act (NLRA), a divided District of Columbia Circuit U.S. Court of Appeals panel ruled Sept. 16 (DIRECTV, Inc. v. National Labor Relations Board, No. 11-1273, D.C. Cir.; 2016 U.S. App. LEXIS 16940).
7th Circuit Reverses Rulings For Chicago In Paramedic Applicants' Gender Bias Suit
CHICAGO - An Illinois federal court erred in finding for the City of Chicago in a gender bias suit brought by female paramedic applicants, a Seventh Circuit U.S. Court of Appeals panel ruled Sept. 19, ordering a new jury trial on the plaintiffs' disparate treatment claims and a reversal of the bench trial verdict for the city on the disparate impact claims (Stacy Ernst, et al. v. City of Chicago, Nos. 14-3783 and 15-2030, 7th Cir.; 2016 U.S. App. LEXIS 17057).
U.S. High Court Declines To Review 2nd Circuit Ruling On EEOC Investigations
WASHINGTON, D.C. - The U.S. Supreme Court on Oct. 3 denied a petition for writ of certiorari filed by a jewelry company seeking review of a Second Circuit U.S. Court of Appeals panel's ruling that under Title VII of the Civil Rights Act of 1964, courts may review whether the Equal Employment Opportunity Commission conducted an investigation, not whether the investigation was sufficient (Sterling Jewelers, Inc. v. EEOC, No. 15-1329, U.S. Sup.; 2016 U.S. LEXIS 4580).
High Court To Decide If Limo Driver Has Tribal Immunity For Crash Claims
WASHINGTON, D.C. - The U.S. Supreme Court on Sept. 29 granted certiorari to review a Connecticut Supreme Court finding that a limousine driver for an Indian casino is protected by the tribe's sovereign immunity from a couple's personal injury claims stemming from a car crash (Brian Lewis and Michelle Lewis v. William Clarke, No. 15-1500, U.S. Sup.).
Sleep Apnea Tests For Overweight Truck Drivers Is Not Bias, 8th Circuit Rules
ST. LOUIS - A motor carrier that requires its truck drivers with body mass indexes (BMIs) of 35 or greater to undergo tests to determine whether they had obstructive sleep apnea is not in violation of the Americans with Disabilities Act (ADA), an Eighth Circuit U.S. Court of Appeals panel ruled Oct. 12 (Robert J. Parker v. Crete Carrier Corporation, No. 16-1371, 8th Cir. 2016 U.S. App. LEXIS 18374).
ITT Hit With 3 WARN Act Complaints After Closing Its Doors
Just a day after ITT Educational Services Inc. told its students and employees on Sept. 6 that all of its campuses were being permanently shuttered, three class complaints had been filed by employees in two federal courts accusing the for-profit chain of failing to provide them with proper notice (Dennis Artis, et al v. ITT Educational Services, Inc., No. 16-790, D. Del., Allen Federman v. ITT Educational Services, Inc., No. 16-780, D. Del., Christin M. Long, et al. v. ITT Educational Services, Inc., No. 16-2399, S.D. Ind.).
Wells Fargo Employee Class Seeks $2.6B, Alleges Firings For Not Engaging In Fraud
LOS ANGELES - Two Wells Fargo Bank employees filed a class complaint in the Los Angeles County Superior Court on Sept. 22 accusing the banking giant's leaders of creating a fraudulent scheme that cheated customers and drove up the stock price and then firing the low-level employees who refused to participate in the scheme and seeking $2.6 billion in damages (Alexander Polonsky, et al. v. Wells Fargo Bank & Company, et al., No. BC634475, Calif. Super., Los Angeles Co.).
Ernst & Young Ask High Court To Rule On Barring Concerted Employee Actions
WASHINGTON, D.C. - Ernst & Young LLP and Ernst & Young U.S. LLP filed a petition for writ of certiorari in the U.S. Supreme Court on Sept. 8, asking for review of August 2016's Ninth Circuit U.S. Court of Appeals decision in which a divided panel held that an employer may not condition employment on the requirement that an employee sign an agreement barring employees from coming together to file legal action over work-related claims (Ernst & Young LLP, et al. v. Stephen Morris, et al., No. 16-300, U.S. Sup.).
2nd Circuit: For Now, Waiver Of Collective Action Is Enforceable
NEW YORK - Circuit precedent, as established in Sutherland v. Ernst & Young LLP (726 F.3d 290 [2d Cir. 2013]), requires a finding that an employment agreement's waiver of collective action is enforceable until such time as that ruling is overturned by an en banc Second Circuit U.S. Court of Appeals or the U.S. Supreme Court, a Second Circuit panel ruled Sept. 7 (Connie Patterson, et al. v. Raymours Furniture Company, Inc., No. 15-2820, 2nd Cir.).
11th Circuit: Employer's No Dreadlocks Rule Doesn't Constitute Racial Bias
ATLANTA - An 11th Circuit U.S. Court of Appeals on Sept. 15 affirmed an Alabama federal judge's rejection of a lawsuit filed by the Equal Employment Opportunity Commission accusing an employer of racial discrimination when it enforced a grooming policy that barred dreadlocks (Equal Employment Opportunity Commission v. Catastrophe Management Solutions, No. 14-13482, 11th Cir.; 2016 U.S. App. LEXIS 16918).
10th Circuit: Oklahoma County Secretary Failed To Prove Harassment, Retaliation Claims
DENVER - The 10th Circuit U.S. Court of Appeals on Oct. 7 affirmed a trial court's summary judgment ruling in favor of an Oklahoma county Board of Commissioners and one of the commissioners in his individual capacity, finding that a former secretary who alleged that she was subjected to harassment and retaliation failed to show that she took the required steps to report alleged harassment by her supervisor (Misty Tilghman v. Rob Kirby, et al., No. 16-6010, 10th Cir.; 2016 U.S. App. LEXIS 18239).
EEOC May Proceed With Retaliation Claims Due To Speech On Medical Exams
GREEN BAY, Wis. - An employer's changes to its health insurance plan that require employees to undergo a health risk assessment (HRA) or pay an additional amount per year is permissible because it is voluntary under 42 U.S. Code Section 12112(d)(4)(B), a Wisconsin federal judge ruled Sept. 19; however, the judge further ruled that the Equal Employment Opportunity Commission may proceed with retaliation claims it is bringing on behalf of a terminated worker who alleges that she was fired after speaking out against the changes (Equal Employment Opportunity Commission v. Orion Energy Systems, Inc., No. 14-1019, E.D. Wis.; 2016 U.S. Dist. LEXIS 127292).
U.S. High Court Denies Petition For Cert In Airline Seniority Appeal
WASHINGTON, D.C. - The U.S. Supreme Court on Oct. 11 denied a request by flight attendants to rule on employee seniority disputes following the merger of two airlines, leaving in place a decision by the Second Circuit U.S. Court of Appeals that upheld dismissal of a complaint filed by former Trans World Airlines (TWA) flight attendants who claimed that they were improperly bumped to the bottom of the seniority list for the second time after American Airlines and U.S. Airways merged (Flight Attendants in Reunion, et al. v. American Airlines, Inc., et al., No. 16-256, U.S. Sup.; 2016 U.S. LEXIS 6209).
5th Circuit Vacates U Visa Discovery Orders, Remands For New Approach
NEW ORLEANS - The grant of discovery orders seeking visa information for undocumented aliens cooperating in a government investigation of an employer accused of discrimination are too broad and impose an undue burden, a Fifth Circuit U.S. Court of Appeals panel ruled Sept. 27, remanding to the Mississippi trial court "to devise an approach to U visa discovery that adequately protects the diverse and competing interests at stake" (Maria Cazorla, et al. v. Koch Foods of Mississippi, L.L.C., et al., Equal Employment Opportunity Commission v. Koch Foods of Mississippi, L.L.C., No. 15-60562, 5th Cir.; 2016 U.S. App. LEXIS 17565).
Judge: Deletion Of Secretly Recorded Conversations Does Not Merit Sanctions
SANTA ANA, Calif. - Finding no evidence that a University of California (UC) police chief was on notice of potential litigation related to the surreptitious recording of officers' private conversations, a California federal judge on Sept. 8 denied a plaintiff officer's motion seeking sanctions for what he said was spoliation of essential evidence in the deletion of those recordings (Federated University Police Officers' Association, et al. v. The Regents of the University of California, et al., No. 8:15-cv-00137, C.D. Calif.).
Trader Joe's Accused Of Firing Employee Based On Sexual Orientation
LOS ANGELES - A California woman filed suit against her former employer, Trader Joe's Co., and 50 unnamed Does in the Los Angeles County Superior Court on Sept. 19 alleging that her firing on Oct. 6, 2015, was solely based on her sexual orientation (Sandra Holm v. Trader Joe's Company, et al., No. BC634605, Calif. Super., Los Angeles Co.).
NLRB: Private College Teaching Assistants Are Covered By Labor Act
WASHINGTON, D.C. - Graduate and undergraduate teaching assistants working at private colleges and universities are covered by the National Labor Relations Act (NLRA), the National Labor Relations Board ruled 3-1 on Aug. 23, reversing Brown University and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW AFL-CIO (342 NLRB 483 ) (The Trustees of Columbia University in the City of New York and Graduate Workers of Columbia-GWC, UAW, No. 02-RC-143012, NLRB).
Kellogg's Changes To Supplemental Agreement Are Not Barred By Master Agreement
CINCINNATI - The National Labor Relations Board erred when it determined that an employer's proposed changes to a supplemental agreement with a union representing employees at one site concerning expanding the use of casual employees are permitted because they "[do] not modify the express terms of the Master Agreement," the Sixth Circuit U.S. Court of Appeals ruled Aug. 19 (Kellogg Company v. National Labor Relations Board, Nos. 15-2031/2183, 6th Cir.; 2016 U.S. App. LEXIS 15271).
Labor Board To High Court: Acting General Counsel Didn't Violate Federal Act
WASHINGTON, D.C. - The District of Columbia Circuit U.S. Court of Appeals erred when it found that a former acting general counsel of the National Labor Relations Board (NLRB) served in violation of the Federal Vacancies Reform Act of 1998 (FVRA) (5 U.S. Code Section 3345, et seq.) for nearly two years and, as a result, the unfair labor practice complaint he issued against an ambulance company was unauthorized, the NLRB argued in its Aug. 12 petitioner brief filed in the U.S. Supreme Court (National Labor Relations Board v. SW General, Inc., doing business as Southwest Ambulance, No. 15-1251, U.S. Sup.).
3rd Circuit: Certification Of Building Workers' Union Vote Doesn't Pass Muster
PHILADELPHIA - A Third Circuit U.S. Court of Appeals panel on Sept. 1 in a nonprecedential opinion granted an employer's petition for review and denied a cross-application for enforcement filed by the National Labor Relations Board (NLRB) in a dispute over a close election for a small bargaining unit of New York City building workers (Newark Portfolio JV, LLC v. National Labor Relations Board, Nos. 15-2565 and 15-2877, 3rd Cir.; 2016 U.S. App. LEXIS 16185).
Divided 9th Circuit Panel Denies En Banc Rehearing In Tip-Pool Appeal
PORTLAND, Ore. - A divided Ninth Circuit U.S. Court of Appeals panel on Sept. 6 denied a petition for rehearing and, on behalf of the court, denied a petition for rehearing en banc concerning its Feb. 23 ruling in which the split panel held that two trial courts in two cases over tip pooling erred when the courts ruled in favor of the employers as the courts must follow the guidance of a new rule announced by U.S. Department of Labor (DOL) in 2011 rather than the precedent set by the Ninth Circuit U.S. Court of Appeals in a 2010 decision (Oregon Restaurant and Lodging Association, et al. v. Thomas Perez, et al., No. 13-35765, Joseph Cesarz, et al. v. Wynn Las Vegas, LLC, et al., No. 14-15243, 9th Cir.; 2016 U.S. App. LEXIS 16361).
8th Circuit: Unofficial Agreement Excluded Donning, Doffing From Compensable Time
ST. LOUIS - Hourly manufacturing employees are not owed compensation for time spent donning and doffing work clothing because that time was excluded from measured working time in an implied-in-fact bona fide collective bargaining agreement between the employer and union representing the workers, the Eighth Circuit U.S. Court of Appeals ruled Aug. 23 (David J. Jackson, et al. v. Old EPT, LLC, also known as EaglePicher Technologies, LLC, No. 15-1078, 8th Cir.; 2016 U.S. App. LEXIS 15416).
$100 Million Uber Settlement Denied Preliminary Approval Again, Despite More Info
SAN FRANCISCO - A California federal judge on Aug. 18 denied preliminary approval for a second time of a $100 million settlement between Uber Technologies Inc. and its drivers, who allege in two lawsuits that they have been misclassified as independent contractors, finding that, despite supplemental briefing, "the Settlement as a whole is not fair, adequate, and reasonable" (Douglas O'Connor, et al. v. Uber Technologies, Inc., et al., No. 13-3826, Hakan Yucesoy, et al. v. Uber Technologies, Inc., et al., No. 15-262, N.D. Calif.).
Preliminary Approval Granted In Settlement Of Fox Unpaid Interns' Class Suit
NEW YORK - A New York federal judge on Aug. 12 granted preliminary approval of a settlement in a class complaint filed by unpaid interns working at divisions of Fox Searchlight Pictures Inc. and Fox Entertainment Group Inc. (collectively, Fox) that will provide a payment of $495 to all members of two settlement classes who submit a valid claim form (Eric Glatt, et al. v. Fox Searchlight Pictures, Inc., et al., No. 11-6784, S.D. N.Y.).
Split NLRB Panel Orders Full Payment Of Search-For-Work Expenses
WASHINGTON, D.C. - A divided National Labor Relations Board panel on Aug. 24 granted a request by the general counsel to discontinue its practice of treating employee's search-for-work and interim employment expenses as an offset that reduces the amount of interim earnings deducted from gross back pay and to start calculating and paying those expenses separately from back pay, regardless of whether the employee received interim earnings (King Soopers, Inc. and Wendy Geaslin, No. 27-CA-129598, NLRB).
Tankhaul Company Agrees To Pay $4.2M To Settle Union Members' Wage Claims
WASHINGTON, D.C. - The District of Columbia Circuit U.S. Court of Appeals on Aug. 29 agreed to hold argument in abeyance pending settlement of union members' claims that their employer improperly withheld pay raises due to their union membership (KAG West, LLC v. National Labor Relations Board, Nos. 15-1189 and 15-1269, D.C. Cir.).
California Federal Judge Certifies Nike Employee Waiting Time Class
SAN JOSE, Calif. - A California federal judge on Aug. 19 certified a class of Nike Retail Services Inc. workers suing for wages for time spent waiting for and during inspections following their shifts (Isaac Rodriguez v. Nike Retail Services, Inc., No. 14-1508, N.D. Calif.; 2016 U.S. Dist. LEXIS 110961).
California Federal Judge: Bus Driver's Class Counsel Is Inadequate
LOS ANGELES - A California federal judge on Aug. 26 denied a motion for certification of a class of bus drivers bringing wage-and-hour claims, finding that class counsel does not meet Federal Rule of Civil Procedure 23's adequacy requirement (James Motty, et al. v. First Student, Inc., et al., No. 15-7463, C.D. Calif.; 2016 U.S. Dist. LEXIS 114948).
Motorcycle Gear Retailer Settles Wage Class Claims For $1.9 Million
SAN FRANCISCO - A California federal judge on Aug. 23 granted final approval of a $1.9 million settlement to be paid by a retailer to end wage-and-hour class claims brought by employees, finding that the evidence, potential length of the case and overwhelming support from class members weighed in favor of approval (Lannden Bower v. Cycle Gear, Inc., No. 14-2712, N.D. Calif.; 2016 U.S. Dist. LEXIS 112455).
California High Court Upholds Attorney Fee Calculated As Percentage Of Settlement
SAN FRANCISCO - An award of an attorney fee out of a common fund calculated as a percentage of a settlement amount in not per se unreasonable, the California Supreme Court ruled Aug. 11 in the appeal of a nearly $6.34 million attorney fee approved as part of a $19 million class action employment settlement (Mark Laffitte, et al. v. Robert Half International Inc., et al., No. S222996, Calif. Sup.; 2016 Cal. LEXIS 6387).
Judge Finds Amount-In- Controversy Requirement Not Met, Remands UCL Claims
FRESNO, Calif. - After finding that an employer's calculation of the amount in controversy in a class action filed in relation to wage claims was speculative, a California federal judge on Aug. 16 granted a former employee's motion to remand his claims for violation of California labor laws and unfair competition law (UCL) to state court (David Dobbs, individually, and on behalf of all others similarly situated, v. Wood Group PSN Inc., an unknown entity, No. 1:16-CV-00838, E.D. Calif.; 2016 U.S. Dist. LEXIS 108714).
California Federal Judge Says McDonald's Corp. Isn't Joint Employer Of Bay Area Workers
SAN FRANCISCO - A California federal judge on Aug. 16 granted partial summary judgment to McDonald's Corp. in a wage-and-hour putative class action brought by a franchisee's workers, finding that McDonald's does not jointly employ the named plaintiffs because it does not retain or exert direct or indirect control over their hiring, firing, wages or working conditions (Guadalupe Salazar, et al. v. McDonald's Corp., et al., No. 3:14-cv-02096, N.D. Calif.; 2016 U.S. Dist. LEXIS 108764).
Wahlburgers' Employees File A Class Complaint, Allege Wage Theft
NEW YORK - Five employees of a celebrity-owned hamburger chain filed a class complaint on Aug. 18 in a New York federal court, accusing Wahlburgers Franchising LLC and several franchisees of failing to pay them minimum wages and overtime and withholding tips (Shakeiya Burnett, et al. v. Wahlburgers Franchising LLC, et al., No. 16-4602, E.D. N.Y.).
NLRB: Chipotle's Social Media Policy Violates Labor Law
WASHINGTON, D.C. - The National Labor Relations Board on Aug. 18 enforced, with some modifications, a decision by an administrative law judge (ALJ) finding that the social media code of Chipotle Services LLC (doing business as Chipotle Mexican Grill) violates the National Labor Relations Act (NLRA) and that the fast food chain committed further violations by directing an employee to delete certain tweets, prohibiting the employee from circulating a petition challenging the chain's break policy and terminating the employee for his actions (Chipotle Services LLC d/b/a Chipotle Mexican Grill and Pennsylvania Workers Organizing Committee, a project of the Fast Food Workers Committee, Nos. 04-CA-147314 and 04-CA-149551, NLRB).
1st Circuit: No Retaliation, Defamation Against Officer Who Lost Firearm License
BOSTON - A police officer who was terminated after his firearm license was revoked failed to show that his termination was caused by retaliation, violation of his right to free speech or defamation of his character, the First Circuit U.S. Court of Appeals ruled Aug. 31, affirming a trial court's summary judgment ruling for the defendants (Joseph McGunigle v. City of Quincy, et al., No. 15-2224, 1st Cir.; 2016 U.S. App. LEXIS 16140).
Qualified Immunity Denial Upheld; Employee Speech Case To Go To Trial
NEW YORK - Police officials responsible for firing an officer who claims that she was improperly terminated for protected speech are not entitled to qualified immunity, a Second Circuit U.S. Court of Appeals panel ruled Aug. 24 (Rebecca Ricciuti v. Garry Gyzenis, et al., No. 12-432, 2nd Cir.; 2016 U.S. App. LEXIS 15556).