« SCOTUS - Age discrimination: Burden of proof never shifts | Main | Supreme Court will hear False Claims Act qui tam case »
Employment Law Memo 06/22/2009
June 21, 2009 by Ross Runkel at LawMemo
| Employment Law Memo 06/22/2009 LawMemo First in Employment Law |
*** Featured Cases ***2nd – NLRA requirement of 10-days notice of intent to picket doesn’t apply to employees acting in their individual capacities.Civil
Service Employees Assn. v. NLRB (2nd Cir 06/19/2009) Employees
were discharged for picketing in support of the recognition of a particular
union as their collective bargaining representative. The picketing was arranged by the union, but the employees
(who were not union members) engaged in that activity in their individual
capacities. The National Labor
Relations Board (NLRB) concluded that the employees were lawfully discharged
because they did not provide 10-days prior notice of their intent to picket,
as required under Section 8(g) of the National Labor Relations Act (NLRA).
The 2nd Circuit granted the union’s petition for review, holding
that Section 8(g) does not apply to employees acting in their individual
capacities. The court reasoned
that “Section 2 of the Act explicitly distinguishes between an
‘employee’ and a ‘labor organization’ such as a union.” The court observed, “[o]n its face, the Act’s definition of
‘labor organization’ does not include employees in their individual
capacities, even if they are acting in coordination with a union to organize
a work place.” IL – Law requiring mandatory retirement of judges at age 75 is unconstitutional.Maddux v. Blagojevich (Illinois
06/18/2009) Illinois’
Compulsory Retirement of Judge Act provides that “[a] judge is
automatically retired at the expiration of the term in which the judge
attains the age of 75.” The
court held that this law is unconstitutional because it violates the right
to equal protection guaranteed under the Illinois Constitution. The court noted that under the language of the act 1) all judges (or
former judges) who turned 75 during a term of office would be forever
precluded from serving as judges; but 2) a 76-year-old who had never before
served as a judge would be able to serve as a judge and never face mandatory
retirement, because mandatory retirement occurs “at the expiration of the
term in which the judge attains the age of 75.” The court reasoned, “[t]here is no rational basis upon which the
legislature can prevent 75-year-old or older former judges from running in
an election, but not citizens 75 years old or older who were never judges[,]
when the disqualifying characteristic is age.” IL – Alleged public policy in favor of general “patient safety” was insufficient to support claim for wrongful discharge in violation of public policy.Turner v. Memorial Medical Center
(Illinois 06/18/2009) Turner
sued the employer, asserting a claim for wrongful discharge in violation of
public policy. The trial court
dismissed the claim on the pleadings. The
appellate court below affirmed. The
court affirmed. Turner
alleged that he was discharged in contravention of the public policy in
favor of “patient safety.” The
court held that Turner failed to identify a specific source of a clearly
mandated public policy in support of general “patient safety.” The court rejected the proposition that “all health care employees
should be immune from the general at-will employment rule simply because
they claim to be reporting on issues that they feel are detrimental to
health care.” With respect to
procedure, the court held that the question whether a proffered public
policy is sufficient to support this type of claim, as well as whether that
public policy is implicated by the conduct alleged, presents an issue of
law. 2nd – Court clarifies
analysis for transactions involving ESOP plans that incur debt to finance
the purchase of stock and then sell the stock in exchange for cancellation
of part of that debt.
Henry v. U.S. Trust Co (2nd Cir
06/19/2009) Henry sued the employer and the trustees of the employer’s employee stock ownership plan (ESOP), asserting a claim for violation of Section 406 of the Employee Retirement Income Security Act (ERISA). Section 406 generally prohibits a plan fiduciary from causing the plan to engage in transactions with a “party in interest” (including transactions involving the purchase of an employer’s securities). The trial court dismissed on the basis that any damages awarded would constitute a “windfall” to the plan. The 2nd Circuit reversed. The court held “when an [ESOP] incurs debt to finance a purchase of shares of stock and then later sells the shares in exchange for cancellation of some of that debt, the debt cancellation in the second transaction should not be construed as having reduced the purchase price paid in the first transaction.” TX - Texas Local Government Code notice provision relating to police officer discipline is not jurisdictional.City of DeSoto v. White (Texas 06/19/2009) Under Chapter 143 of the Texas Local Government Code, a police officer who is suspended from duty has a right to appeal to either a civil service commission or to an independent, third-party hearing examiner. If the officer opts for the hearing examiner, his ability to seek judicial review is severely limited. The officer must be informed in writing of his options, and of the limitation on his right to judicial review if he opts for a hearing examiner. The court held that the failure to notify an officer in writing as to his appeal limitations is not jurisdictional. Thus, such a defect does not deprive a hearing examiner of subject matter jurisdiction to hear the appeal. *** Capsules ***1st – Employee lacked a property interest in his job.Lasalle-Concepcion v. Toledo-Davila
(1st Cir 06/18/2009) Lasalle-Concepcion sued the public employer under 42 USC Section 1983, asserting a claim for deprivation of his federal due process rights. The trial court dismissed his claim. The 1st Circuit affirmed, concluding that Lasalle-Concepcion lacked a property interest in his job. DC – Employee in Title VII case produced insufficient evidence that employer’s decision not to promote her was based on race or gender.Hendricks v. Geithner (DC Cir
06/19/2009) Hendricks
sued the public employer, asserting Title VII race and gender discrimination
(failure to promote) claims. The
trial court granted summary judgment in favor of the employer. The DC Circuit affirmed, concluding that Hendricks produced
insufficient evidence to allow a reasonable jury to conclude that the
employer’s decision not to promote her was motivated by race or gender. |
|
Employment Law Editor: Ross Runkel, Professor of Law Emeritus.
|
EEOC | NLRB | Supreme Court | Employment Law Blog | Arbitration Blog | Employment Law 101
