Employment Law Memo sample

Moore sued his employer asserting, among other things, a retaliation claim under the Fair Labor Standards Act (FLSA). The trial court entered judgment in favor of Moore after a jury verdict in his favor. In particular, the jury awarded Moore compensatory damages for emotional distress. The trial court let the emotional distress award stand, concluding that such damages were available for FLSA retaliation claims. The 6th Circuit affirmed (but vacated the attorney fee award for recalculation by the trial court).

29 USC Section 216(b) addresses damages for FLSA retaliation claims. That provision states that employers "shall be liable for such legal or equitable relief as may be appropriate ... including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages." The 7th Circuit, the only other circuit to directly address the question of whether Section 216(b) allows emotional distress damages, has concluded that such damages are available under that section. The 8th and 9th Circuits have allowed Section 216(b) emotional distress damages awards to stand without directly addressing the issue. Consistent with these decisions, the court concluded that emotional distress damages are available under Section 216(b). The court reasoned that "[t]he statutory scheme contemplates compensation in full for any retaliation employees suffer from reporting grievances, and there is no indication that it would not include compensation for demonstrable emotional injuries, as well as economic ones."

9th - Court defines the appropriate remedy for issuance of inadequate Hudson notices.

Wagner v. Professional Engineers in California Government (9th Cir 01/14/2004)
http://caselaw.lp.findlaw.com/data2/circs/9th/0216397p.pdf

A union may charge nonunion members of bargaining units fees to pay for their "fair share" of the union's cost of negotiating and administering a collective bargaining agreement. These fees are typically referred to as "fair share" or "agency" fees. Under the 1st Amendment, however, such nonmembers have a right to decide whether to pay for political and expressive activities that are unrelated to collective bargaining. The expenditures that a union may not charge if a nonmember objects are called "nonchargeable" expenditures.

To help facilitate nonmembers' 1st Amendment rights, unions must provide "an adequate explanation of the basis for the [fair share] fee." This "adequate explanation" is referred to as a "Hudson notice" (named for Chicago Teachers Union, Local No. 1. v. Hudson, 475 US 292 (1986)). In a Hudson notice, each major category of expenditures is classified as chargeable or nonchargeable. The court held that the proper remedy for a union's issuance of a defective Hudson notice is issuance of a new Hudson notice, with a renewed opportunity for nonmembers to object to paying for nonchargeable expenditures. An inadequate Hudson notice gives nonmembers insufficient information with which to decide whether or not to object to paying the portion of their fees attributable to nonchargeable expenditures. The court reasoned that such a remedy addresses that harm.

6th - Arbitration agreement's provision, vesting unilateral control over the pool of potential arbitrators with employer, was unenforceable as to employee's Title VII claims.

McMullen v. Meijer, Inc. (6th Cir 01/14/2004)
http://laws.findlaw.com/6th/04a0015a.html

McMullen sought a declaratory judgment that her Title VII claims weren't subject to the mandatory arbitration agreement she signed at inception of employment. Under the agreement, the arbitrator was to be selected from a list compiled solely by the employer. McMullen argued that the employer's unilateral control over the pool of potential arbitrators rendered the agreement unenforceable with respect to her Title VII claims. The court agreed that the agreement was unenforceable as to the arbitrator selection provision, but remanded for consideration of whether that provision was severable from the remainder of the agreement.

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1st - Employee provided sufficient evidence to survive summary judgment on her Rehabilitation Act disability discrimination and Title VII retaliation claims.

Calero-Cerezo v. United States Department of Justice (1st Cir 01/14/2004)
http://laws.findlaw.com/1st/022643.html

Calero-Cerezo, a federal employee, sued the employer asserting claims for "failure to reasonably accommodate" under the Rehabilitation Act and retaliation under Title VII. The trial court entered summary judgment in favor of the employer on both claims. The 1st Circuit reversed, concluding that 1) Calero-Cerezo provided sufficient evidence to survive summary judgment on her Rehabilitation Act claim; and 2) Calero-Cerezo provided sufficient evidence of a "causal link" to survive summary judgment on her Title VII claim. The court noted that reversal was necessitated in part by the fact that the employer's counsel "entirely failed to address either the facts or the law" supporting its position on appeal.

8th- Alleged harasser was a co-worker, not a supervisor, in Title VII sexual harassment case.

Joens v. John Morrell & Co. (8th Cir 01/14/2004)
http://caselaw.lp.findlaw.com/data2/circs/8th/031573p.pdf

Joens sued the employer asserting, among other things, a claim for Title VII sexual harassment. The trial court granted summary judgment in favor of the employer. The 8th Circuit affirmed. The court found that the alleged harasser was a co-worker, not a supervisor, for purposes of the United States Supreme Court's analysis in Faragher and Ellerth. The court also determined that the conduct at issue was not sufficiently severe or pervasive, and that Joens provided insufficient evidence that the harassing behavior was "because of" sex.

10th - Employee wasn't a "qualified" individual with a disability under the ADA.

Mason v. Avaya Communications (10th Cir 01/13/2004)
http://laws.findlaw.com/10th/036035.html

Mason sued the employer under the ADA, claiming that the employer failed to reasonably accommodate her disability (post traumatic stress disorder) when it refused to allow her to work from home. The trial court granted summary judgment in favor of the employer, and the 10th Circuit affirmed. The court concluded that 1) attendance at work was an essential job function; and 2) her request to work at home was not reasonable.

DC - Suit by rehired air traffic controllers against FAA was untimely.

Harris v. F.A.A. (DC Cir 01/13/2004)
http://caselaw.lp.findlaw.com/data2/circs/dc/025304a.pdf

Air traffic controllers were fired in 1981 for participating in an illegal strike. The ban on the rehiring of these federal employees was lifted in 1993 and they were rehired. The employees sued the Federal Aviation Administration (FAA) claiming that its decision to rehire them all at the GS-9 pay grade level violated the Administrative Procedure Act (APA). The trial court dismissed the suit as untimely, and the DC Circuit affirmed. The court concluded that the FAA recruitment notice alerting the employees that they were eligible for rehire at the GS-9 pay grade level was a "final agency action" that triggered the applicable six-year limitations period.

OK - Discharged employee stated a claim for wrongful discharge in violation of public policy.

Silver v. CPC-Sherwood Manor (Okalahoma 01/13/2004)
http://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=438274

Silver was employed as a cook. After arriving at work one day, he became violently ill (diarrhea and vomiting). His employer fired him for leaving work, and he sued claiming wrongful discharge in violation of public policy. The trial court dismissed the case for failure to state a claim. The court reversed, concluding that Silver stated a claim based on the public policy underlying article 11, part A of the Public Health Code.

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