28 day free trial

28 day free trial

28 day free trial

LawMemo - First in Employment Law

Home MyLawMemo About Us   Arbitrators


28 day free trial

Custom Alerts


Employment Law Memo

          Three emails per week

NLRB Law Memo


Arbitration Law Memo



Employment Law Memo 07/26/2019
LawMemo - First in Employment Law

*** Featured Case ***

*** Capsules ***

*** Featured Case ***

CO - Severability provision in nonsolicitation agreement did not compel trial court to use its "blue pencil" authority to allow enforcement of agreement that violated public policy.

23 LTD v. Herman (Colorado Ct App 07/25/2019)

The employer sued Herman, a legal recruiter, for violating a nonsolicitation agreement. The trial court declined to exercise its discretion to blue pencil the agreement and entered judgment against the employer. The Court of Appeals affirmed.

Herman worked for the employer as a legal recruiter and started her own recruiting business after terminating her employment. The employer sued Herman for violating a nonsolicitation agreement after she started working with a client of the employer. The trial court held the nonsolicitation agreement invalid under state law and refused to blue pencil the agreement to make it enforceable.

The Court of Appeals affirmed and rejected the employer's argument that the severability provision obligated the court to blue pencil the agreement. The court stated parties to a contract cannot compel a court to exercise its blue pencil authority and that it is not the function of the courts to write or rewrite contracts for parties to allow enforcement of contracts that, as written, violate public policy.

*** Capsules ***

2nd - Employee plausibly pled claims of forced labor and trafficking against employer in violation of the Trafficking Victims Protection Act.

Adia v. Grandeur Management (2nd Cir 07/25/2019)

Adia sued the hotel services employers alleging causes of action for forced labor and human trafficking under the Trafficking Victims Protection Act (TVPA) and the Alien Tort Statute (ATS), and a claim for unpaid overtime under the New York Labor Law.  The trial court granted the employer's motion to dismiss. Adia appealed only the dismissal of his TVPA claim. The 2nd Circuit vacated the portion of the judgment dismissing Adia's TVPA claims, and the case was remanded for further proceedings, including the exercise of supplemental jurisdiction.

The issue on appeal was whether the provisions of the TVPA creating a civil remedy, 18 USC Section 1595, for violating the criminal provisions prohibiting forced labor and human trafficking, Sections 1589 and 1590, applied to an immigrant lawfully in this country on a temporary guest worker visa alleging that his employers threatened to revoke their sponsorship, thereby subjecting him to deportation.

In the context of Adia's circumstances, the employers' alleged threat to cancel their sponsorship if he left them constituted abuse of legal process of subsection 1589(a)(3). The court found that Adia's had plausibly pled a claim for forced labor under subsection 1589(a)(3). For the same reasons Adia had plausibly stated a claim for relief under subsection 1589(a)(4).

For Adia's trafficking claim, the employer recruited him from South Dakota promising him to transfer and sponsor his H-2B visa. If an employer violated section 1589, he also violates section 1590 if he recruited the person to perform forced labor. The court found that Adia plausibly alleged a claim for trafficking under section1590.

5th - Louisiana Small Business Development Center is not an independent juridical entity under state law.

Edmiston v. Louisiana Small Business Devel Ctr (5th Cir 07/24/2019)

The 5th Circuit affirmed the district court's FRCP 12(b)(6) dismissal of Edmiston's ADEA claims against the Louisiana Small Business Development Center (Center) on the campus of Northwestern State University. Edmiston, 71, alleged she was fired due to her age. The district court dismissed Edmiston's claim on the ground the Center was not a juridical entity. The 5th Circuit affirmed and held the Center is not an independent juridical entity under Louisiana law. By statute, the Center is subject to the authority of the Board of Supervisors for the university system, which would have been the proper defendant.

8th - Employers did not violate the FMLA (discrimination) nor the MHRA (retaliation) by discharging employee.

Lovelace v. Washington University (8th Cir 07/25/2019)

Lovelace, medical assistant, sued her hospital employers alleging they discharged her in retaliation for exercising her rights under the Family and Medical Leave Act (FMLA) and the Missouri Human Rights Act (MHRA). The trial court granted the hospitals summary judgment. The 8th Circuit affirmed.

Lovelace had back surgery, and required certain minor work accommodations, taking breaks to stand, stretch, or walk. While concern was raised about her performance after her return from FMLA leave, she was discharged for her behavior on July 31, 2015, disrupting the office.

With respect to her FMLA discrimination claim, Lovelace must show that the exercise of her FMLA rights played a part in the employers' decision to discharge her. Lovelace's "intervening unprotected conduct" – i.e., her refusal to engaged with Supervisor Brinkley and Resources Consultant Sledge on July 31 and her subsequent outburst – ended any connection there might have between her FMLA leave and her eventual discharge. The court determined the trial court did not err in granting the hospitals summary judgment on Lovelace's FMLA discrimination claims.

The MHRA retaliation claims: (1) Lovelace did not claim she was discriminated against because of the color of her skin, she had no legitimate basis for believing Brinkley was discriminating against her on the basis of her race when Brinkley asked her whether she had made a comment based on Butcher's race; (2) evidence of generally temporary work restrictions, without more, was insufficient to constitute a disability. The court concluded the trial court did not err in granting the hospitals summary judgment on Lovelace's MHRA retaliation claim.

8th - Employee could not establish a prima facie case of discrimination under the ADA; attendance was essential job function, restrictions precluded accommodation.

Higgins v. Union Pacific Railroad (8th Cir 07/24/2019)

Higgins, locomotive engineer, entered into a settlement agreement in 1992 with the railroad company for two spine-related injuries while performing job duties, where he released his personal injury claims against the railroad in exchange for payment and "the right to lay off whenever his back bother[ed] him."  On March 12, 1992, Higgins's physician wrote a letter to the railroad that Higgins was cleared to work "with the only restriction being that he should not go out more than often then every 24 hours." In December 4, 2014, the railroad determined that Higgins's restrictions interfered with his essential job functions and could not be reasonably accommodated, and he was not permitted to safely return to work.

Higgins sued the railroad for violation of the Americans with Disabilities Act (ADA) and other claims. The trial court granted the railroad's motion for summary judgment. The 8th Circuit affirmed.

Higgins challenged whether attendance was an essential function of the job and that he could perform the essential functions of the job with a reasonable accommodation.

The job description listed attendance as an essential job function; the railroad's repeated warnings to Higgins that his poor attendance was unacceptable; and, while the railroad's accommodation of Higgins's back pain may not have been temporary, it did not alter the court's essential function analysis in this case.

Higgins's newly requested accommodation – "laying off as necessary" and receiving "24 hours of rest per shift (between shifts)" – was unreasonable. The court found that Higgins's requested accommodation essentially amounted to an "unlimited absentee policy," which was unreasonable as a matter of law. The court noted that the railroad's previous generosity to accommodate Higgins's disability must not be deemed to have conceded the reasonableness of so far-reaching an accommodation as proposed here. The court concluded that Higgins could not establish a prima facie case of discrimination under the ADA.

11th - 911 communications district not "an arm of the state" entitled to 11th Amendment immunity against ADA claim.

McAdams v. Jefferson County 911 Dist (11th Cir 07/24/2019)

The 11th Circuit vacated the district court's judgment dismissing McAdams' ADA claim against the employer on sovereign immunity grounds. The district court held the employer was an arm of the State of Alabama entitled to immunity under the 11th Amendment. Using a four-factor test, 11th Circuit held the employer did not act as an arm of the state and was, therefore, not entitled to 11th Amendment immunity. The court emphasized that the state Supreme Court had previously held a similar communications entity was not an arm of the state.

FL - Denial of noneconomic damages under FPWA remanded for a trial on employee's noneconomic damages claim.

Iglesias v. City of Hialeah (Florida Ct App 07/24/2019)

Employee Iglesias and the City employer settled Iglesias's Florida Public Whistleblower Act (FPWA) with Iglesias allowed to appeal the trial court's ruling not allowing for noneconomic damages and the City to appeal the trial court's denial of its motion for summary judgment. The Florida Court of Appeal reversed the trial court's ruling denying noneconomic damages under the FPWA, and affirmed as to the trial court's denial of the City's motion for summary judgment.

The court observed that the FPWA's language was a floor, rather than a ceiling, on the types of relief that a party could seek, and that a remedial statute like the FPWA should be construed liberally in favor of the party seeking relief. The FPWA mandated that an award include the remedies explicitly identified within the statute, but, the court explained, did not expressly exclude other recoverable damages, thereby allowing other forms of relief as may be appropriate under the applicable law. The court reversed the trial court's denial of recovery of noneconomic compensatory damages under the FPWA and remanded the case for a trial on Iglesias's noneconomic compensatory damages.

IA - Termination of deputy upheld for willful disregard of orders and contributing to a hostile workplace.

Charleston v. Polk County Civil Service (Iowa Ct App 07/24/2019)

The Court of Appeals affirmed the district court's judgment upholding the decision of the Polk County Civil Service Commission (Commission) terminating deputy sheriff Charleston's employment. Charleston was fired after repeatedly changing officer assignments for transporting prisoners to court after being ordered not to do so and contributing to a hostile workplace. The court held the record contained substantial evidence justifying the Commission's termination decision.

SC - Trial court properly determined age discrimination claim barred by the statute of limitations, no private right of action existed; and equitable tolling did not apply.

Crocker v. South Carolina Dept of Health (South Carolina Ct App 07/24/2019)

Crocker filed a Charge of Discrimination based on age about not being selected for the position of IT Manager with the South Carolina Human Affairs Commission (SCHAC) on August 7, 2013, alleging violations of the Age Discrimination in Employment Act (ADEA) and the South Carolina Human Affairs Law (SCHAL). The SCHAC waived deferral and transferred the complaint to the EEOC, which issued a right to sue letter on February 11, 2016 with 90-days to file suit. Crocker filed suit in state court on March 28, 2016. The employing Department (of Health and Environmental Control) filed a motion for summary judgment arguing (1) the statute of limitation in section 1-13-90(d)(6) barred Crocker's claims, (2) no private cause of action existed for Crocker under section1-13-90(c), and (3) Crocker was not entitled to equitable tolling. The trial court granted the Department's motion for summary judgment for all three reasons. The South Carolina Court of Appeals affirmed.


Editor: Ross Runkel, Ross@LawMemo.com. Copyright 2019 by LawMemo, Inc., PO Box 9182, Portland, OR 97207, (503) 227-1500. We are sending Employment Law Memo three times per week. To unsubscribe, reply to this email with the word "REMOVE" in the subject line.


Home  |  MyLawMemo  |  Custom Alerts  |  Newest Cases  |  Key Word Search  
No-obligation trial  |  Arbitrators  |  Law Firms  |  Sample Memos 


Get your 28 day trial now 

Web www.LawMemo.com 
This form will search the LawMemo web site. 
It does not include Key Word Search.