Labor Law - FINAL - Case Studies

Huhmann v Fed Express Corp

- Huhmann was a pilot - piloting a narrow body plane - on track to move to a wide body plane which would include a raise - Went into active duty, when he returned, he was given a bonus for the narrow body plane pay rate instead of the wide body plane he'd have been in if he hadn't gone into active duty.

White v. Beltram Edge Tool Supply - What were the legal issues in this case? What did the appeals court decide?

•The legal issues in the case were (1) whether Beltram interfered with Ms. White's right to claim FMLA leave when it fired her; (2) whether White had shown that she was entitled to FMLA leave in the first place; and (3) whether summary judgment for Beltram was properly granted. The appeals court decided that she had provided evidence of her need for FMLA leave, that Beltram interfered with that right when it terminated her employment, and that there were genuine issues of material fact as to (a) whether White suffered from a serious health condition; (b) whether she gave proper notice to Beltram of her need for FMLA leave; and (c) whether her doctor's initial estimate that she would need more than 12 weeks of leave disqualified her from FMLA leave. Those factual issues precluded summary judgment in favor of the employer, Beltram.

Young v. UPS - What does the second clause ("prong") of the Pregnancy Discrimination Act say? What interpretation of this clause did the plaintiff argue for? What interpretation did the defendant argue for?

•The second prong of the PDA says that employers must treat "women affected by pregnancy ... the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work." •Young contended that the second clause meant that whenever an employer accommodates only a subset of workers with disabling conditions, a court should find a Titltle VII violation if pregnant workers who are similar in the ability to work do not receive the same accommodation even if still other non-pregnant workers do not receive accommodations. •UPS contended that the second clause does no more than define sex discriminatio to include pregnancy discrimination. Under this view, courts would compare the accommodations an employer provides to pregnant women with the same accommodations it provides to others within a facially neutral category (such as thoe with off-the-job injuries) to determine whether an employer has violated Title VII.

White v. Beltram Edge Tool Supply - Should the expected duration of the period of incapacity associated with a serious health condition be a factor in determining eligibility to receive FMLA leave? Why or why not?

•There is a major problem with considering the expected duration of incapacity in determining whether or not a serious health condition exists, and that is that the expected duration is just that - expected. It is not a factual certainty, and may change.

White v. Beltram Edge Tool Supply - Summary

- Injured knee in April 2010 - prescribed physical therapy - was able to work. - December 23, started calling in sick for other issues - January 27 - fell twice, reinjured knee - claimed FMLA - Talked to supervisors next day - FMLA paperwork due Feb 12th - her doctor was on leave, she asked for extension on Feb 11 - told she could have a "couple of extra days" and to get it in as "soon as possible" - also sent doctor's notes for other absences - Fired on Feb 17 - White said she sent in FMLA on 16th

Young v. UPS

- Pregnancy non-discrimination act - pregnant woman lifting packages is bad so UPS fired her - lady won case

Ehling v. Monmouth-Ocean Hospital Service Corp.

-Elling had a facebook page and she posted about a shooting in the DC holocaust museum. -She is a nurse and basically said she would have let the shooter die and criticized the paramedics. -Her nursing license was yanked and she sued; doctors and nurses have an oath to not let anyone die not matter what. • Questions of privacy. • Plausible claim to invasion of privacy

NLRB v. Whitesell Corp. - Why was it concluded that a valid impasse did not exist at the time that the employer ceased to negotiate? Since the employer wanted to eliminate the just cause provision in the contract and the union said that it would never agree to that, why wasn't that fact alone enough to show the existence of an impasse ?

1) the company's negotiator announced at the very beginning of negotiations that the company would not negotiate beyond the expiration date and reiterated this intention during the negotiations• 2) there were only six substantive bargaining sessions• 3) complicated proposals were made by the company well into the negotiations, leaving relatively little time to discuss them• 4) tentative agreement was reached on about 30 issues• 5) concessions and tentative agreements continued to be made throughout the negotiations, including during the last substantive session• 6) while a number of issues awaited resolution, there were only two issues - the standard for disciplinary action and overtime - on which the parties "were clearly deadlocke;"• 7) no showing was made of economic exigencies necessitating haste• 8) there was no evidence of union obstinacy• 9) this was the first attempt at bargaining by these parties and negotiations would be expected to take longer under those circumstances• 10) the company delayed the negotiations by failing to provide the union with full information about the effects of its proposals on the existing vacation plan• 11) after declaring impasse, the company made unilateral changes that were not included in its final offer to the union.

DirecTV v. NLRB

26 service technicians were fired after appearing on a television news show to complain about their employer's instructions about how to persuade customers to install phone connections for their satellite television service, and the charge-backs to employees' pay if they did not procure such connections. Phone connections were not necessary for the service to work, but the company earned more money if phone connections were installed.

Kellar v. Summit Seating - Why does the appeals court find that the work in question was nonpreliminary? More than de minimis

Activities which are preliminary to or postliminary to the principal activities of the job, which occur prior to the time the workday begins or subsequent to the time any particular workday ends are not compensable under the Portal-to-Portal Act, which amended the FLSA to eliminate employer liability for these activities. However, the Supreme Court has held that activities that are "an integral and indispensable part of [an employee's] principal activities" are not preliminary, but are principal activities, and are compensable even if they occur before the beginning of an employee's shift. Kellar's activities were "integral and indispensable" to the work she performed, and therefore compensable.

City of Brighton v. Rodriguez - What is the distinction between "employment," "personal," and "neutral" risks? Why does the court say that this case involves the latter category ?

An "employment" risk is one that is directly tied to the work itself. "Personal risk" are inherently personal or private to the employee. "Neutral risks" are neither employment related nor personal. The court designated Rodriguez' risk as a neutral risk, not the result of an occupational hazard, nor a personal risk. But neutral risks arise out of employment because they would not have occurred but for employment.

City of Brighton v. Rodriguez - What is the "but-for" or "positional risk" test? How does the court apply it to the facts of this case? Would the outcome have been the same if the court had used a "peculiar risk" test? An "increased risk" text? An "actual risk" test? (See the text for explanations of these.) Why or why not?

An injury arises out of employment if it would not have occurred "but for" the employment. The employment causally contributed to the injury because it obligated the employee to engage in employment-related functions, errands, or duties at the time of injury. In this case, Rodriguez' fall had its origin in her work-related functions and was sufficiently related to those functions so s to be considered a part of employment.

Hively v. Ivy Tech Community College

April of 2017, the Seventh Circuit ruled in Hively v. Ivy Tech Community College that discrimination based on sexual orientation is sex discrimination in violation of Title VII.

Reynolds v. Gentry Fin. Corp. - Why is the separate at-will employment agreement that the employee had signed when she was hired not sufficient to negate an implied contract providing her for something other than employment at will?

As to the separate at-will statement, it repeated the employer's statement that Reynolds was an at-will employee, but it could not negate the employer's promise not to fire for making a complaint, although it could fire her for other reasons.

Harrison v. Wells Fargo Bank, N.A. - Why does the court conclude that the relevant decision makers abused their discretion in this case? What should they have done differently?

At each step of the process, it was as though Liberty did not want to see evidence which might change the outcome. In its initial review, despite Harrison's telling them that surgery was scheduled the next day, and that she was being treated by a psychiatrist, they terminated short term disability benefits. At each step of the review, the reviewing medical personnel made conclusions based only on the documents before them, and not on the documents they claimed were missing, although they had the authority to obtain them. It defies common sense. The original review should have either obtained the records which would speak to the issues, or advise Harrison that it needed such documents.

Koeppel v. Speirs

Camera in the bathroom case; Speirs not found liable because even though he had intent, he was not successful; Iowa Supreme Court reversed and remanded.

Kellar v. Summit Seating - Why does the appeals court find for the employer even though it failed to pay the plaintiff for compensable time?

Even though Kellar's pre-shift work was compensable, in this case, the employer was not liable to pay it. For the employer to be held liable, it must be that the employer knew or should have known that the employee was working off-the-clock. In this case, the plaintiff did not prove that this was the case, as was her burden to prove.

Ehling v. Monmouth-Ocean Hospital Service Corp. - Why did the Facebook post qualify as a "stored communication"? Why did the manager's accessing of that post not violate the Stored Communications Act?

Facebook posts met the definition of electronic communication as set forth in the statute. The manager was not liable for accessing that post because he acquired it through an authorized user, Ronco.

R. Williams Construction Co. v. OSHRC - 4. Ultimately, these violations that caused, or at least contributed to, the death of an employee and serious injuries to another, resulted in a $22,000 fine for the employer. Is that a just outcome? Are the penalties for violations of OSHA standards sufficient?

Fines for violations of the OSH Act are capped at $70,000 and this amount is levied only for "willful" violations. In this case, a violation originally deemed willful was reduced to a "serious" violation, bringing the associated penalty down from $70,000 to $7000. Other serious violations were reduced from $7000 to $5000 because R. Williams is a small employer with no prior history of injuries or OSHA violations. In rare cases, willful violations that result in the death of one or more employees can result in up to a year of imprisonment, but this almost never happens. Penalties for violations of the OSH Act, including those that result in the deaths of workers, do not seem to provide an enormous incentive for investing in safety (particularly when coupled with the low probability of detection of violations) and are quite low relative to other kinds of violations (e.g., of environmental laws).

AutoNation, Inc. v. NLRB - What statements were made by managers in their meeting with employees that violated the NLRA? Why did each of these statements violate the NLRA?

First, Davis' statement that employees "tend to lose things" when they enter into union negotiations, if they ever got there; that the potential negotiations were a wide open game of uncertainty in which nothing is guaranteed even if they would win the election in favor of a union. Davis also said that it was possible that they would actually be paid less than their current hourly pay if they unionized; and that in union negotiations, they would start at zero, not at their current pay. The Board found that this message was essentially that organizing a union would be futile, and cited the case of AutoNation's Orlando dealership which had voted in favor of a union, had never had negotiations with AutoNation. Together, Davis was telling the employees that unionizing would likely not produce the benefits they were seeking. • Next, the Board concluded that both Davis and Andrews made implied promises of wage increases to deter workers from supporting the union, an interference with their right to unionize. Finally, Davis threatened the workers with demotions if they chose to pursue union activity.

Battoni v. IBEW Local Union No. 102 Employee Pension Plan - Which two things must be shown by plaintiffs to prove that there has been a violation of ERISA's anti-cutback rule?

First, plaintiff must show that a plan was amended and secondly that the amendment decreased an accrued benefit.

Koeppel v. Speirs - Why does the Court conclude that an intrusion upon seclusion claim does not require evidence that the offending party actually succeeded in viewing or otherwise intruding on the plaintiff? Does this decision amount to, as the defendant argues, authorizing claims for attempted invasion of privacy? Why or why not?

Following the case law, and particularly the seminal case of Hamberger v. Eastman, the court ruled that at the summary judgment stage, an intrusion occurs when the defendant performs an act that has the potential to impair a person's peace of mind and comfort associated with the expectation of privacy. The court noted that the rule that the mere placement of equipment can constitute an intrusion continues to be followed. This does not equate to "attempted" invasion of privacy. The injury to one's peace of mind is done even if the equipment doesn't work. The court found this line of cases to be more consistent with the spirit and purpose of the protection of privacy.

Ehling v. Monmouth-Ocean Hospital Service Corp. - Would the outcome of the case have been different if one of the managers had demanded the coworker's Facebook password and viewed the post that way?

It certainly could have been. In some states, laws have been passed prohibiting employers from requiring their employees to provide their FB passwords.

The Boeing Company - Would it make more sense for the NLRB and courts to focus on whether policies have actually been enforced in ways that interfere with activities protected by the NLRA, rather than on the potential for policies to do so? Why or why not?

It is problematic to wait until policies have actually been enforced in ways that interfere with Section 7 rights, because the threat of the policies would have a chilling effect on the exercise of those rights.

DirecTV v. NLRB - Suppose the companies had shown that they suffered substantial losses in sales and revenue stemming from the news program? Would that have made a difference in the outcome of this case? Why or why not?

It is very possible that there were some adverse financial consequences that followed from the adverse publicity generated by the interviews. However, unless it could be shown that the employees had acted recklessly without regard to the financial consequences for these businesses, or that they acted intentionally with the purpose of harming their employer financially, their actions would still be protected. Protected concerted activity is sometimes costly to employers and strikes are not the only examples of that.

Whitley v. BP, P.L.C. - There are strict limits placed on the amount of an employer's own stock that can be held in the pension funds of defined benefit plans. Should there also be limits placed on the amount of an employer's own stock that can be held as part of defined contribution plans?

It makes common sense for investments in both kinds of plans to be diversified; that is the safest way forward, and requires prudent investing.

Riser v. QEP Energy - What factors other than sex is cited by the employer? Why were they not sufficient to avoid a trial?

QEP cites its allegedly gender-neutral pay classification system. The problem is that that pay classification system did not consider Riser's actual duties in setting her salary, but rather relied on the title of Administrative Assistant.

Koeppel v. Speirs - This decision focuses on whether an intrusion occurred. On remand, will the plaintiff be able to establish the other elements of her intrusion upon seclusion claim? Why or why not? Would the outcome be the same for the privacy claim being brought by the plaintiff's coworker Miller? Why or why not?

It will be difficult. The court also made clear that operational equipment is a requirement of proof in intrusion upon seclusion claims. It is not necessary that Koeppel prove that images were made and transmitted, but it must be shown that they could have been. The claim by Miller has the additional component that the employer suspected she was doing something detrimental, possibly drugs, in the office, which might give him a reason justifying his investigation.

Dorshkind v. Oak Park Place of Dubuque II - Which arguments are made in Justice Mansfield's dissenting opinion? Do you agree that the effect of this opinion will be to make employers in Iowa potentially liable whenever they discharge employees who have expressed safety or other public policy related concerns to coworkers? Why or why not?

Justice Mansfield argues that the majority's decisions significantly broadens Iowa's public policy exception, and for the first time, did not require an express or implicit legislative or administrative determination to protect internal reporting. Justice Mansfield believes that Iowa's employment at will doctrine has been eroded by the decision. He also says that the requirement of the existence of a clearly defined and well-recognized public policy means that the employee had to have engaged in the activity that the statute of regulation protected (in this case, reporting), not merely that the employee reported on something that was the subject of such a policy. In his view, the court swept away any distinction between internal and external reporting, with the result that any time an employee complains to a coworker about health, safety or welfare, and that employee is later terminated, the employer may be at risk of a lawsuit for wrongful discharge.

Kellar v. Summit Seating - What uncompensated work did the plaintiff claim she performed? What should the district court have done with the statement of another employee - the sister of the plaintiff, no less - that the plaintiff did not engage in work prior to her official start time?

Kellar testified that before the start of her shift, she reviewed employee schedules, gathered and distributed fabric and materials to her subordinates' work stations, prepared models for production, cleaned work areas, and checked patterns, turned on lights, unlocked the door, and more.• Because the parties stipulated, for purposes of the motion for summary judgment, that Kellar had performed the work, the statement of the sister, (still a current employee with Summit), that Kellar did not perform the work, could be set aside.

Estrada v. Wal-Mart Stores - What is the theory of "compelled self-publication"? Why does the plaintiff's defamation claim fail?

One element of a claim for defamation is a showing that there was a publication of the defamatory statement, some communication to a third person who understands the defamatory meaning of the statement as it applies to the plaintiff. But under the compelled self-publication exception, self-publication may be imputed to the originator of the statement if the person defamed is operating under a strong compulsion to republish the defamatory statement and the circumstances that create the strong compulsion are known to the originator of the defamatory statement at the time it was made. The exception is limited to a narrow class of cases, usually where plaintiff is compelled to republish the statements in aid of disproving them. She alleges that she did republish this statement and accusation to others, but missing is any indication of to whom plaintiff was forced to communicate the statement and accusation, an essential element of the exception of compelled self-publication.

Riser v. QEP Energy - What was the basis for the court's conclusion that the plaintiff and her two male comparators engaged in equal work?

One major factor was that QEP asked Riser to separate out her fleet administrator duties, and created a new position for one of her male colleagues from that job description.

Ehling v. Monmouth-Ocean Hospital Service Corp. - Why did the plaintiff's privacy tort claim also fail?

Plaintiff was unable to show any intentional intrusion by either Ronco or Caruso. Ronco was authorized to read her Facebook posts, and he shared them with Caruso.

Pippins v. KPMG LLP - On what grounds did the plaintiffs argue that their work did not require them to employ knowledge "customarily acquired by a prolonged course of specialized intellectual instructions"? Why did the court not agree?

Plaintiffs argued that they received their training for the audit positions from KPMG, and not from any prior course. They maintained that their basic accounting instruction received prior to being employed at KMPG, while helpful to their entry-level positions, was not necessary for them to do the audit work. The court noted that plaintiffs conceded that Audit Associates hired by KPMG were generally required to be either eligible or nearly eligible to become Certified Public Accountants, and that the vast majority of audit Associates had accounting degrees and were eligible to take the CPA exam. The court held that a vast majority of the Audit Associates required a prolonged, specialized education to fulfill their role as accountants. Moreover, the Audit Associates are called upon daily to exercise their discretion and judgment in the review of audit materials and in the composition of reports regarding the audits. The court thus found the Audit Associates to be learned professionals who are exempt from the FLSA's overtime provisions.

Pippins v. KPMG LLP - In your view, what makes particular types of work "professions"? How does your view compare with the DOL's regulations for the FLSA professional exemption (these are outlined in the case and explained more fully at 29 C.F.R. §§ 541.300-541.304 [2017])? 3. On what grounds did the plaintiffs argue that their work did not require "advanced knowledge"? Why did the court not agree?

Plaintiffs argued that they received their training from KPMG, not prior to their employment with KPMG. The court noted that the FLSA regulation states that the advanced knowledge prong is satisfied when the work is "predominantly intellectual" in character, and requires the consistent exercise of discretion and judgment, as distinguished from performance of routine mental, manual, mechanical or physical work." With regard to plaintiffs' employment, the court found central to the profession the appropriate professional skepticism, an attitude that includes a questioning mind and a critical assessment of audit evidence and requires an ongoing questioning of whether the information and evidence obtained suggest that a material misstatement due to fraud has occurred. This is the primary duty of the Audit Associates. • "The importance of the duties, the frequency with which they require the employee to exercise discretion, and the relative freedom of the employee from supervision, as well as the percentage of time the employee spends in performing the work." The court, construing cases from other circuits, ruled that the sensible proposition that the learned professions exemption applies if workers rely on advanced knowledge of their specialty to exercise discretion and judgment that is characteristic of their field of intellectual endeavor. In this case, Audit Associates composed reports which were they reviewed by more senior accountants.

Whitley v. BP, P.L.C. - Why does the appeals court rule against the plaintiffs?

Reviewing the pleading standards, the court stated, "to state a claim for breach of the duty of prudence on the basis of inside information, a plaintiff must plausibly allege an alternative action that the defendant could have taken that would have been consistent with the securities laws and that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it." Plaintiffs were unable to propose an alternative course of action that would be more likely to help the fund than harm it.

SeaWorld of Florida v. Perez - This case involves an unusual hazard faced by employees in a business that produces a unique form of entertainment. Legally speaking, should any of that matter? Should OSHA be able to regulate safety in the entertainment industry in the same manner as any other industry? Why or why not? If so, should this also extend to the realm of professional sports? Why or why not?

SeaWorld argued that "when some risk is inherent in a business activity, that risk cannot constitute a 'recognized hazard.'" This argument was unavailing. It seems to be OSHA's view that it can and should monitor businesses that provide entertainment. Indeed, it is difficult to imagine an exemption so large; many businesses would claim themselves "entertainment" business, to avoid OSHA requirements. On the other hand, it is difficult to imagine OSHA monitoring professional sports activities, though we now know the concussion and dementia hazards of football. But in the current day, it would not be politically feasible to extend OSHA's reach to professional sports.

NLRB v. Whitesell Corp. - What specific things should this employer have done differently to avoid the outcome in this case ?

Since the employer initiated negotiations, it also had the obligation to notify the FMCS within 30 days and should have done so. In general, if an employer is committed to reaching agreement through bargaining, it is not helpful to withhold relevant information from the union. Certainly, there are times when financial or other proprietary information is at stake where such information need not and should not be shared. But a general disposition toward withholding information is not conducive to good faith bargaining. Regarding the negotiations, it would have been helpful - particularly since this was the first negotiation between these parties - to come in with a smaller set of issues and a more modest agenda. While the company clearly desired to convey firmness, it should not have announced at the outset of negotiations that they would necessarily terminate negotiations upon the expiration of the contract. More basically, while hard bargaining is clearly lawful, the company's stated objective of labor cost equalization with its non-union facilities, if rigidly adhered to, is a formula for conflict and failure in bargaining. Perhaps they feel that they can break the union by precipitating a strike, permanently replacing workers, and seeing the union decertified. That formula has been used by more than a few employers, but it is certainly contrary to the spirit of the NLRA and will likely result in legal and labor relations problems for years to come.

SeaWorld of Florida v. Perez - An undercurrent in this case is the claim that the regulation of safety by OSHA is interfering with the basic business model and product of SeaWorld. Is that true? Why or why not? In general should OSHA be able to ban activities, substances, or work processes because they are too dangerous even if they are widely used in an industry? Order the closure of inordinately dangerous facilities? Why or why not?

That was certainly SeaWorld's argument (see above). It is certainly less convenient to have OSHA rule on how to ensure safety in its business, and any similar business would also prefer to avoid having to comply with OSHA requirements. In fact, OSHA has been opposed by the business community generally, and those interactions have been historically been contentious politically. Even if one might decide that OSHA should be able to ban activities, substances or work processes or order the closure of inordinately dangerous facilities beyond the authority it has now, in the present political climate, that expanded authority would not be granted.

The Boeing Company - What about other types of workplace conduct policies, such as broad "civility" or "harmonious relationships" policies? Should these be designated as "Category 1" rules whose existence will always be lawful under the NLRA? Why or why not?

The Board addresses this issue by proposing that in a case in which it is alleged that a civility policy impinged on Section 7 rights, the Board would refuse to apply the policy so that the Section 7 rights could be lawfully exercised

NLRB v. Whitesell Corp. - So, what happens now? What if the parties still cannot come to agreement?

The NLRB's order, enforced by the court, required the employer to restore the previous labor agreement and to abide by it until such time as a new agreement is successfully negotiated or a valid impasse is reached. So, it's back to the bargaining table. The parties have already had about five years of living under the employer's imposed terms. Perhaps this has given both sides the time to form a better relationship and to think about what is really most important to them. At the time of the initial negotiations in 2006, the parties had never negotiated together before. The employer had acquired the bargaining unit in the course of purchasing another company. If it takes the same approach to negotiation and continues to demand that the union relinquish a just cause disciplinary standard, the prospects for reaching an agreement are not good - even if the letter of the law is adhered to this time before the declaration of an impasse and implementation of the final offer. For the union's part, the question is whether they have spent their time building the support of members or whether members have reached the conclusion that collective bargaining is fruitless. The union may well find itself in a position where it has to strike, or at least be very credible in threatening to do so. Alternatively, they may decide to play an "inside game" and find non-strike tactics for pressuring this employer. It's hard to be overly optimistic about the future of this labor-management relationship.

DirecTV v. NLRB - Why was this activity "protected" under the NLRA?

The activity was protected first because it related to the type of issue covered by collective bargaining. This was a dispute over pay. Even though the interview contained a distinct consumer protection element, it clearly communicated the existence of a dispute with their employer. The more difficult matter was whether the activity had lost its protected character because of the manner in which it was conducted. Communications lose protection when they are sufficiently disloyal, or reckless, or maliciously untrue.

DirecTV v. NLRB - What was the concerted activity in which the technicians engaged? What made that activity "concerted"?

The concerted activity was the technicians jointly deciding to publicize their dispute with their employer, going as a group to the TV station, and participating in the interview. This was group activity conceived of and executed in a joint fashion.

Battoni v. IBEW Local Union No. 102 Employee Pension Plan - What were the legal issues in this case? What did the court decide?

The court had to decide whether the new rule constituted an amendment to a pension plan and whether that amendment violated ERISA's anti-cutback rule by decreasing an accrued pension benefit. The lower court had ruled for the plaintiffs after a bench trial and the appeals court affirmed the decision.

Battoni v. IBEW Local Union No. 102 Employee Pension Plan - In what sense were the accrued pension benefits of these employees reduced?

The court rejected the union's argument that the new rule simply restricted access to retiree healthcare benefits and did not decrease any accrued pension benefit. "But because the Disputed Amendment imposed a condition on the receipt of the lump sum benefit under the Local 102 Pension Plan, it decreased an accrued benefit. "[A]t the moment [a] new condition is imposed, the accrued benefit becomes less valuable[.]" The court found strong support for this proposition in the Supreme Court's 2004 Central Laborers' Pension Fund decision. In that case, the Court held that the placing of additional restrictions on the types of employment that retirees could engage in and still receive pension benefits amounted to a reduction in an accrued benefit and violated the anti-cutback provisions of ERISA. In general, the adding of conditions to receive accrued pension benefits will run afoul of ERISA.

DirecTV v. NLRB - What was the legal issue in this case? What did the court decide?

The issue was whether the technicians had engaged in protected concerted activity. An Administrative Law Judge had concluded that the technicians' actions, while concerted, were not protected. The NLRB found that the technicians' actions were protected and that the employer had violated the NLRA.

Dorshkind v. Oak Park Place of Dubuque II - Should it make any difference in terms of legal protection whether the "whistle is blown" internally within the organization or externally? Why or why not?

The court ruled that it should not, since the public policy considerations were the same in either case. Discharging an employee for making an internal complaint still undermines public policy. In addition, such internal reporting allows the employer to correct the deficiency in a reasonably prompt manner. When the government becomes involved, the employer may take the position that the conduct does not violate a statute or rule in order to avoid sanctions.

R. Williams Construction Co. v. OSHRC - Why was it "unavailing for Williams to argue that employees must take greater care to avoid placing themselves in harm's way"? What role, if any, should employees' actions have in determining liability under the OSH Act?

The court stated that "Williams had reason to know that its employees would enter the trench on the day of the cave-in and had actual knowledge that two of its employees entered the trench prior to the cave-in. It is unavailing for Williams to argue that employees must take greater care to avoid placing themselves in harm's way or that management can "expect an employee . . . not [to] intentionally place himself in danger." The OSH Act places the responsibility for providing safe employment and places of employment with the party most able to ensure those conditions, the employer. Employers can avoid liability for safety violations caused by unpreventable employee misconduct, but only if the employer had an established rule addressing the hazard, the rule was communicated to employees, efforts were made to discover violations, and violators of the rule were disciplined.

SeaWorld of Florida v. Perez - What things must be shown in order to establish a violation under the general duty clause of the OSH Act? How are each of these elements satisfied in this case?

The elements of proof necessary to prove a violation of the general duty clause are (1) an activity or condition in the employer's workplace presented a hazard to an employee (2) either the employer or the industry recognized the condition or activity as a hazard; (3) the hazard was likely to or did actually caused death or serious physical harm, and (4) that a feasible means to eliminate or materially reduce the hazard existed. As for the first element, SeaWorld: (1) recognized that both drywork and waterwork were recognized hazards of working with killer whales; (2) the industry also recognized the risk, and there had been several deaths around the world from working with killer whales; (3) The hazard had caused death; and (4) SeaWorld had enacted many safety protocols and training sessions in an attempt to deal with the danger.

R. Williams Construction Co. v. OSHRC - What exactly did the employer do or fail to do that violated the OSH Act?

The employer was cited for failing to instruct its employees in the recognition and avoidance of unsafe conditions and in the regulations applying to their work environment. The appeals court concluded that "Williams provided no training in trenching hazards to at least the two employees working in the trench; moreover, no Williams supervisor was familiar with OSHA regulations." Another citation charged that the employer failed to ensure that no employee would have to travel more than 25 feet to reach a point of safe egress. It is reasonably predictable that such an employee, already within a "zone of danger," will become exposed to the danger itself. Thus, we hold that this regulation applies regardless of whether the employees were exposed to the actual danger at the time of the collapse. A violation is established so long as employees have access to a dangerous area more than 25 feet from a means of egress."• The third citation charged that the employer failed to ensure that a "competent person" with specific training in soil analysis and the ability to identify unsafe trench conditions inspected the trench on a daily basis. "No supervisor at the Company was familiar with the basic standards applicable to the worksite or otherwise "capable . . . of identifying and correcting existing and predictable hazards in their surroundings." We disagree that the Company discharged its OSHA duties merely by relying on the general work experience of Dzamba and J.P. Williams [the site supervisor and his boss] or "common sense." The fourth citation charged that the employer failed to ensure that the walls of the trench were either properly sloped or supported. A fifth citation, not challenged by the employer, was for failing to adequately protect employees from loose rock or soil that could fall from the excavation face. The employer was ultimately found to have violated the OSH Act in all of these ways.

Dorshkind v. Oak Park Place of Dubuque II - This decision focuses on the first two elements of a public policy claim. Why does the court conclude that these were satisfied in this case?

The first two elements of a public policy claim are: (1) the existence of a clearly defined and well-recognized public policy that protects the employee's activity; (2) this public policy would be undermined by the employee's discharge from employment. Both are legal elements to be decided by the court, while elements three and four were decided by the jury at trial. Citing the statutes and regulations governing dementia-specific facilities, and the training called for in those statutes and regulations, the court found a clearly defined and well-recognized public policy that protected the employee's activity. Dorshkind's whistleblowing reported violations of law that jeopardized the health, safety, and welfare of dementia patients, satisfying the first element. Considering the second element, the court considered the impact of the discharge on both the dismissed employee and on other employees, and ruled that Dorshkind's discharge would discourage other employees form engaging in the same conduct which resulted in her termination.

Reynolds v. Gentry Fin. Corp. - What implied contract is alleged to have been breached? What is the evidence that this implied contract exists? Why does the employer's disclaimer not resolve the matter?

The implied contract that is alleged to have been breached is the repeated assurances in the employee handbook that an employee would not be terminated for submitting a complaint or grievance. That language appears in the employee handbook at least ten times, bolded, italicized, and with exclamation points for punctuation, prominently throughout the employee handbook. The employer's disclaimer in the employee handbook, by contrast, was inconspicuous, buried in other text, not bolded, italicized or otherwise made prominent.

State Ex Rel. Gross v. Industrial Commission of Ohio - What was the legal issue in this case? What did the court decide?

The issue was whether the employee's conduct constituted a "voluntary abandoment" of his employment justifying termination of his temporary total disability benefits under the Ohio workers' compensation statute. The Ohio Supreme Court (in " Gross I") originally upheld the termination of benefits. Shortly thereafter (in "Gross II") it granted a reconsideration of its own decision, vacated that decision, and ordered reinstatement of the employees workers' compensation benefits .

R. Williams Construction Co. v OSHRC - What was the legal issue in this case? What did the court decide?

The issue was whether the employer violated OSHA safety standards. The appeals court denied the employer's petition for review.

NLRB v. Whitesell Corp. - What were the legal issues in this case? What did the court decide?

The issues were whether the employer violated the National Labor Relations Act by failing to bargain in good faith; specifically, it was alleged that the employer unilaterally implemented changes to the existing agreement prior to negotiating to a valid impasse, failed to provide relevant information requested by the union, and failed to provide required notice to the FMCS. The appeals court agreed that the NLRA was violated and enforced the NLRB's order.

City of Brighton v. Rodriguez - What is the legal issue in this case? What did the court decide?

The legal issue in this case is whether injuries from an unexplained fall in the workplace "arise out of the employment." The court found that it did.

Kellar v. Summit Seating - What was the legal issue in this case? What did the appeals court decide?

The legal issue in this case was whether Kellar's pre-shift work was compensable time under the FLSA and under Indiana's wage payment law, and whether the employer was liable to pay it. The district court ruled on a motion for summary judgment, and for that purpose, the employer stipulated that Kellar had performed the work. The district court ruled that Kellar's work was both preliminary and de minimis, and that her employer did not know that she was working off-the-clock.• First, it rejected Summit's position that Kellar's pre-shift work was merely "preliminary" activity under the Portal-to-Portal Act of 1947, for which she was not entitled to compensation. • Next, the court rejected that this work could be disregarded as de minimis (and therefore noncompensable), since it consumed up to 45 minutes daily. • Third, the court considered the argument that Kellar did not prove that Summit knew of the work or had reason to know of it, and therefore, the employer was not liable to pay for that time.

Dorshkind v. Oak Park Place of Dubuque II - What were the legal issues in this case? What did the court decide?

The legal issue in this case was whether a termination for making an internal report of a failure to comply with nursing home training regulations falls within the public policy exception to employment at will. The Supreme Court affirmed the decision of the court of appeals finding that it did fall within that exception, so that plaintiff should not have been terminated.

Koeppel v. Speirs - What was the legal issue in this case? What did the Iowa Supreme Court decide?

The legal issue in this case was whether surveillance equipment secretly installed in a bathroom can support a claim for invasion of privacy when the equipment could not be operated. The Iowa Supreme Court held that the intrusion of the equipment was sufficient to withstand a motion for summary judgment, and remanded the case for further proceedings.

Harrison v. Wells Fargo Bank, N.A - What was the legal issue in this case? What did the appeals court decide?

The legal issue in this case was whether the plan administrator abused his discretion in reviewing Harrison's claim for benefits without obtaining and considering readily available information necessary to decide her claim. The appeals court vacated the summary judgment for Wells Fargo granted by the district court, and remanded the case for further review.

Reynolds v. Gentry Fin. Corp. - What are the legal issues in this case? What did the appeals court decide?

The legal issues are whether the employment manuals created an implied-in-fact contract that modified Reynolds' at-will status, and whether the disclaimer language was clear and conspicuous. The appeals court determined that a triable question of fact existed as to whether an implied-in-fact contract was created, and that a triable issue of fact existed as to whether the disclaimer language was clear and conspicuous so as to negate it.

AutoNation, Inc. v. NLRB - What were the legal issues in this case? What did the court decide?

The legal issues in the case were whether AutoNation violated the NLRB during its meeting with employees on August 23, by interfering with the employees' right to unionize, and whether employee Huerta was fired for union activity and support. The court affirmed the decisions of the Board in the affirmative for these issues.

The Boeing Company - What were the legal issues in this case? What did the NLRB decide?

The legal issues in the case were whether Boeing's maintenance of the no-camera rule constituted unlawful interference with Section 7 rights under the NLRA, and whether the Lutheran Heritage standard was the correct standard to apply in construing such cases. • The Board ruled that it would no longer find unlawful the mere maintenance of facially neutral employment policies, work rules and handbook provisions based on a single inquiry, which made legality turn on whether an employee "would reasonably construe" a rule to prohibit some type of potential Section 7 activity that might (or might not) occur in the future. The Board ruled that the Lutheran Heritage standard was inadequate, and adopted a new rule.

Pippins v. KPMG LLP - What were the legal issues in this case? What did the court decide?

The legal issues in the case were whether the FLSA overtime pay provisions applied to plaintiff accountants, which requires satisfaction of a 3-pronged test: • The work be primarily intellectual in character • The work is in a "field of science or learning," which includes accounting (plaintiffs did not contest this prong)• The work must be of a type where "specialized academic training is a standard prerequisite for entrance into the profession. Appeals court decided in favor of the employer, affirming the district court's summary judgement.

Estrada v. Wal-Mart Stores - What were the legal issues in this case? What did the court decide?

The legal issues in this case were whether Estrada stated valid claims at the pleading stage for false imprisonment, fraud, intentional infliction of emotional distress, and defamation. The court decided that Estrada did state claims for false imprisonment, fraud and intentional infliction of emotional distress, but not for defamation. She stated no claim for defamation because the allegedly false statements were not communicated to others, and because they were privileged.

Riser v. QEP Energy - What were the legal issues in this case? What did the court decide?

The legal issues in this case were whether Riser's job was substantially equal to that of her male colleagues, and whether the wage disparity was the product of QEP's allegedly gender-neutral pay classification - a factor other than sex. The court found that there were genuine issues of material fact as to whether Riser's job was substantially equal to that of her male colleagues, which precluded summary judgment. As to the pay classification, it placed Riser at Grade 5 without taking into account the duties she was actually performing. For this reason, pay classification cannot be used to explain the pay differential between the men she trained and her own salary which was 31% less.

SeaWorld of Florida v Perez - What are the legal issues in this case? What did the appeals court decide?

The legal issues in this case were whether SeaWorld violated the Genera Duty Clause of the OSHS Act, and whether there were abatement procedures to minimize that risk without altering the essential nature of the business of SeaWorld. The appeals court decided that SeaWorld did violate the General Duty Clause, and that there were feasible abatement procedures to minimize those risks without altering the essential nature of the business.

Ehling v. Monmouth-Ocean Hospital Service Corp. - What were the legal issues in this case? What did the court decide?

The legal issues in this case were whether the SCA applied to the Facebook posting, and whether the defendants had committed intrusion upon seclusion. The court held that non-public Facebook wall posts are covered by the SCA, and that since plaintiff limited her postings to Facebook friends only, her wall postings were non-public, but the court found no violation of the SCA. The court also decided that there was no claim for invasion of privacy proven, since she granted access to her "friend" Ronco, who conveyed her postings.

AutoNation, Inc. v. NLRB - Should this employer have held these meetings with employees in an effort to persuade them not to unionize? Why or why not? What are some practical implications of this case for how any such meetings should be handled?

The meetings were a dangerous thing to do, and ran afoul of the NLRA. As a practical matter, the safest thing an employer can do is to provide information, but so many of this employer's statements were overtly designed to discourage employees from joining a union, and it might have been safer to not hold such meetings.

Battoni v. IBEW Local Union No. 102 Employee Pension Plan -

The merger created strains on the pension plan due to the under-funded Local 675 plan, but the union will have to find other savings that do not entail reductions of accrued benefits. Benefits can be reduced for everyone going forward, but this will not be popular with the larger membership. While further negotiations before the fact would not have permitted the adoption of a rule that violates ERISA, it might have been possible to come to some more satisfactory terms for the merger of unions and their benefits plans.

The Boeing Company - What is the new rule or standard announced in this decision? To which situations does it apply? How does the new rule differ from the previous rule (the "Lutheran Heritage standard")?

The new rule adopted in this decision states that the Board will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the requirement(s). The Board will conduct this evaluation consistent with the Board's duty to strike the proper balance between asserted business justifications and the invasion of employee rights in light of the Act and its policy. • Category 1 will include rules that the Board designates as lawful to maintain, either because the rule does not prohibit or interfere with the exercise of NLRA rights, or the potential adverse impact on protected rights is outweighed by justifications associated with the rule. Examples are the no-camera requirement in this case, the "harmonious interactions and relationships" rule that was at issue in another case, and other rules requiring employees to abide by basic standards of civility. • Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule, when reasonably interpreted, would prohibit or interfere with the exercise of NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications. • Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example would be a rule that prohibits employees from discussing wages or benefits with one another. • Previously, under the Lutheran Heritage standard, the Board could not consider the legitimate justifications associated with the requirements, nor balance the interests of employer and employee.

Rhinehimer v. U.S. Bancorp Invs., Inc - What was the legal issue in this case? What did the court decide?

The only legal issue in the case is whether plaintiff established that he engaged in activity protected by the SOX Act when he complained to his supervisors that a coworker engaged in unsuitability fraud with one of his clients while he was out on disability leave. The defendant contended that plaintiff had to prove each element of unsuitability fraud definitely and specifically. The district court adopted that standard, and the jury found in favor of the plaintiff. The appeals court affirmed the decision of the district court, but found as error, the requirement that plaintiff prove every element of a securities law fraud, instead adopting the "reasonable belief" standard based on the statute.

Battoni v. IBEW Local Union No. 102 Employee Pension Plan - As the anti-cutback provisions of ERISA apply only to pensions and not to welfare plans, why did changing the conditions under which retiree health care benefits were available run afoul of the anti-cutback rule?

The parties agreed that the right to receive lump-sum distributions was an accrued benefit under the pension plan. The court held that because the new rule "constructively amended" the right to receive a lump sum pension benefit under the Local 102 Pension Plan, we conclude that the first requirement of an Anti-Cutback claim was satisfied." The rule change affected both a welfare plan (retiree health insurance) and a pension plan. It "constructively amended the pension plan by adding a condition to the receipt of a benefit accrued under that plan. If a retiree elects to receive the lump sum pension benefit under the Local 102 Pension Plan she loses healthcare benefits under the Local 102 Welfare Plan." The new rule made no sense apart from the pension plan. Thus, inclusion of the new rule within the terms of retiree health insurance plan did not mean that the change did not also amend the pension plan.

Harrison v. Wells Fargo Bank, N.A. - What benefit was denied to the plaintiff? On what grounds did the employer and its plan administrator (Liberty Life) deny this benefit?

The plan administrator originally granted Harrison's claim for short term disability, but cut off disability benefits on the grounds that she no longer qualified.

Whitley v. BP, P.L.C. - What was the legal issue in this case? What did the court decide?

The ultimate legal issue in this case was whether the plan administrators breached their fiduciary duty to stockholders, but the procedural issue was whether plaintiffs stated a proper claim under pleading standards. Ultimately, the court decided that they did not.

Reynolds v. Gentry Fin. Corp. - At trial, is the plaintiff likely to be able to prove the existence of an implied contract? Why or why not? Is the plaintiff likely to be able to prove that any implied contract was breached by her termination? Why or why not?

These are questions of fact for the jury to determine, but there is significant evidence that an implied contract was created by which the employer promised that employees would not be fired for making complaints. Students' answers may vary

State Ex Rel. Gross v. Industrial Commission of Ohio - What are practical consequences of this decision? If the original decision by the court had been upheld?

This case received considerable attention and commentary. The decision in Gross I was widely viewed as throwing into question the "no-fault" character of workers' compensation. It suggested that claims for workers' compensation benefits were now likely to precipitate attempts by employers to show that employees had acted contrary to company policy when injured. • Having rules on the books and terminating injured employees who arguably violated safety rules (with the employer being the one to decide whether a violation had occurred) could enable employers to avoid paying TTD benefits (presumably, medical bills related to treatment of the injury would still have to be paid, but not replacement income). On the other hand, the revised decision in Gross II can be seen as countenancing rule violations by employees and as contrary to "common sense." However, employers have many means available to deal with violators of safety rules. And if employers know that they can't expect to have benefits withheld from safety rule violators after the fact of an injury, they may be inclined to intervene sooner and more forcefully. Had this employer taken action against this employee sooner, the injuries might never have occurred.

AutoNation, Inc. v. NLRB - How are discrimination cases decided under the NLRA? What was the evidence that the suspension and ultimate termination of the employee (Huerta) were discriminatory? Is there a good argument to be made that the employer would have fired the employee anyhow, based on a lawful reason? Why or why not?

To prove discrimination against a union supporter requires a showing that the employee's union activity was a motivating factor for the adverse employment action are (1) union or protected concerted activity (2) employer knowledge of such activity, and (3) union animus on the part of the employer. The conduct of Davis and Andrews at the August 23 meeting showed animus (the third element). The anonymous phone call re Huerta and the actions subsequently taken by AutoNation constituted evidence of first and second elements. Also, the fact that the man who fired Huerta conferred with Davis before taking adverse action against Huerta, satisfies the elements. The Board's finding to that effect was not so unreasonable as to be set aside.

Estrada v. Wal-Mart Stores - What things need to be shown by plaintiffs in false imprisonment claims? Why does the court allow the false imprisonment claim in this case to go forward? Given what we know about the facts of this case, do you think that the plaintiff was falsely imprisoned? Why or why not?

To state a claim for false imprisonment under California law, a plaintiff must show (1) the nonconsensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time, however brief. The imprisonment can be proven by means of physical force, threat of force or of arrest, confinement by physical barriers, or by means of any other form of unreasonable duress. All that is required is that a person must be in reasonable apprehension that she does not have the freedom to leave a particular place. In this case, Estrada alleged she was confined for approximately one hour, she was interrogated in a closed room by a manager who accused her of embezzling $4,000 and threatened to call the police if she did not confess. She further asserts that the manager left the room apparently to call the police, and when he returned, presented her with an acknowledgment form, and told her she had to sign it if she wanted to leave the room. She signed the form so she would be allowed to leave. The defenses raised by Wal-Mart may well apply at the summary judgment stage, but do not apply at the pleading stage.

Estrada v. Wal-Mart Stores - The plaintiff also brought fraud and infliction of emotional distress claims. What are the elements of each of these claims? Why does the court allow the plaintiff's fraud and infliction of emotional distress claims to go forward?

To state a fraud claim under California law, plaintiff must show (a) misrepresentation, (b) knowledge of falsity, (c) intent to defraud, (d) justifiable reliance, and (e) resulting damage. To state a claim for the intentional infliction for emotional distress under California law, plaintiff must show (1) extreme and outrageous conduct by defendants with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendants' outrageous conduct. The court noted that California Workers' In both cases, Estrada plead sufficient facts to survive Wal-Mart's motion to dismiss.

Whitley v. BP, P.L.C. - What does it mean to say that BP had a "fiduciary duty" to the participants in its employee stock ownership plan? In which ways do the plaintiffs claim that BP breached its fiduciary duty to them?

Under ERISA, plan administrators have a fiduciary duty to act in the best interests of the shareholders, which means making decisions for their benefit, above all others. The stockholders contended that the plan administrators breached their duties of prudence and loyalty by allowing the Plans to acquire and hold overvalued BP stock; that they breached their duty to provide adequate investment information to plan participants, and that they breached their duty to monitor those responsible for managing the BP stock fund.

State Ex Rel. Gross v. Industrial Commission of Ohio - What is the voluntary abandonment doctrine? Should it have been applied to this case?

Under this doctrine, a voluntary action by an injured employee, such as a decision to retire that is not premised on the injury itself, provides a basis for terminating TTD benefits because the loss of earnings is no longer caused by the disabling injury. "To be eligible for TTD compensation, "the claimant must show not only that he or she lacks the medical capability of returning to the former position of employment but that a cause-and-effect relationship exists between the industrial injury and an actual loss of earnings. In other words, it must appear that, but for the industrial injury, the claimant would be gainfully employed." "[T]he voluntary abandonment rule is potentially implicated whenever TTD compensation is requested by a claimant who is no longer employed in the position that he or she held when the injury occurred. But characterizing the claimant's departure from the former position of employment as 'voluntary' does not automatically determine the claimant's eligibility for TTD compensation. Instead, voluntary departure from the former position can preclude eligibility for TTD compensation only so long as it operates to sever the causal connection between the claimant's industrial injury and the claimant's actual wage loss." In this case, the employer's termination letter expressly connected the employer's decision to terminate with the accident. Thus, the "termination was causally related to his injury" and his departure was involuntary.

Kellar v. Summit Seating

Were her activities compensable? Her employer did not know she was working off the clock. Was her pre shift work compensable time under FLSA? - there was no actual or consistent evidence that her tasks were related to her work.

Harrison v. Wells Fargo Bank, N.A. - What is the "abuse of discretion" standard in ERISA cases? Which factors does the court consider in deciding whether a plan administrator has abused his or her discretion in denying a benefit claim?

What is the "abuse of discretion" standard in ERISA cases? Which factors does the court consider in deciding whether a plan administrator has abused his or her discretion in denying a benefit claim?

Ehling v. Monmouth-Ocean Hospital Service Corp. - Should the nurse have been disciplined for the statement she made on Facebook? Why or why not? What are some practical implications of this case for employers and employees?

Yes. The comment was certainly not appropriate for one in her vocation and position, and reflected badly on the hospital. Employees should be aware that their social media postings are often scrutinized by their employers, if they can get access to them, and employers make employment decisions on the basis of those social media postings. Although the law is being developed about whether it is appropriate to do (and employers and employees do not agree), this case provides a cautionary tale for employees. Employees should not post comments their employers would disapprove of on social media. Employers must be aware what state law is regarding their right to access the social media postings of their employees, and should create and distribute social media policies explaining what their policies are about such postings.

R. Williams Construction Co. v OSHRC

a trench collapsed at a construction site, killing one worker, and severely injuring another. A hydraulic jack supporting the wall had been removed, and the walls of the trench were not sloped, as required by OSHA regulations. The construction firm argued that, although it did not know what the OSHA requirements were, its employees had much work experience and common sense, and they talked about safety "all the time."

Huhmann v. Fed. Express Corp - What is the "escalator principle"? What is the "reasonable certainty test"? How were these two concepts applied by the courts in this case?

•The "escalator principle" holds that, if possible, a returning vet should be restored to the position, including promotions, he would have attained, with all benefits, terms and conditions of employment, had he not been called to active military service. The "reasonable certainty test" aids in determining the returning service member's position on the "escalator," inquiring into the position a returning service member would have been "reasonably certain" to have attained absent military service.

The Boeing Company - In which ways might a "no-camera" policy like Boeing's interfere with protected activity under the NLRA? Why does the NLRB conclude that Boeing's policy does not violate the NLRA?

• In some circumstances the no-camera policy might potentially affect the exercise of Section 7 rights, (for example, if the employees wanted to record their activity while exercising Section 7 rights), but this adverse impact is comparatively slight. The Board also found that the adverse impact was outweighed by substantial and important justifications associated with Boeing's maintenance of the no-camera rule. • First, the Board noted that the no-camera rule was an integral component of Boeing's security protocols which were necessary to maintain Boeing's accreditation as a federal contractor to perform classified work for the U.S. Government. Second, the no-camera rule plays a key role in ensuring that Boeing complies with its federally mandated duty to prevent the disclosure of export-controlled information or the exposure of export-controlled materials to unauthorized persons. Third, the no-camera rule helps prevent the disclosure of Boeing's proprietary information.

Huhmann v. Fed. Express Corp - What difference does it make whether the signing bonus in question was a "seniority-based benefit" or a "non-seniority-based benefit"? Why does the court conclude that it was the former?

•FedEx maintained that non-seniority based benefits under USERRA are limited to those benefits available to other employees on non-military leave. FedEx argues that the amount of the signing bonus paid to Huhmann was not a seniority-based benefit, but rather determined based on crew position without regard to employee seniority, so that a longer-tenured pilot flying a 727-SO (Huhmann's aircraft) would receive a smaller bonus that a shorter-tenured MD-11 FO (the aircraft for which Huhmann had entered training prior to leaving for military service. But the district court held that USERRA defines "seniority" as "longevity in employment together with benefits which accrue with or are determined by longevity." The Bonus letter from the union specifically included time served in the military as creditable time earned during the amendable period on which the bonus was based, making it a seniority-based benefit.

Hively v. Ivy Tech Cmty, College of Ind. - What arguments does Chief Judge Wood make in her majority opinion for treating discrimination on the basis of sexual orientation as a form of sex discrimination under Title VII?

•First, relying on the plain language used in Title VII, that it was impossible to take the "sex" out of sexual orientation, meaning that discrimination on the basis of sexual orientation constituted discrimination on the basis of sex, which violated Title VII. The Judge reviewed the history over several decades of the expansion of the understanding of discrimination and of sexual orientation, citing U.S. Supreme Court cases such as Hopkins and Loving, and the decisions of other courts striking down the Colorado Constitutional provision forbidding any organ of government in the state from taking action designed to protect "homosexual, lesbian, or bisexual" persons; the Texas statute criminalizing homosexual intimacy between consenting adults; and a part of the Defense of Marriage Act that excluded a same-sex partner from the definition of "spouse." The Supreme Court had ruled that sex stereotyping constituted discrimination. Requiring that people behave in accordance with the "stereotypical" version of their sex thus constituted discrimination.

Huhmann v. Fed. Express Corp - The plaintiff's eligibility for reinstatement under USERRA was not contested, so it is not discussed in this decision. But, for the record, how were the eligibility criteria of USERRA satisfied in this case?

•In a USERRA case, plaintiff must show: (1) the employer was informed that the employee needed leave to fulfill military duties; the record reveals that this is correct; (2) The employee received an honorable discharge from active military service; the record reveals that this is correct; (3) the employee made a timely (usually within ninety days_) request to be reinstated; the record reveals that this is correct; (4) the employer delayed reinstatement, denied reinstatement, or failed to fully reinstate by restoring the employee to the terms and conditions of employment that would have prevailed had the employee not left to engage in military service. The record reveals that FedEx paid Huhmann a bonus based on his prior job, not the job for which he had entered training at the time he was called to military service.

Huhmann v. Fed. Express Corp - What are some practical implications of this case? Why do you suppose that Fed Ex bothered to appeal the lower court's decision? Would negotiating clearer contract language have avoided this problem in the first place?

•It is difficult to see why FedEx took this position and maintained it even after losing at the district court level. Perhaps they were trying to set a less expensive precedent, but the arguments they used simply did not meet the requirements of USERRA. As a practical matter, it is usually much wiser for an employer to follow the dictates of a law - even one it does not want to follow - than to try to fight it in court, spending time and resources on a doubtful proposition which also alienates its skilled employees.

Hively v. Ivy Tech Cmty, College of Ind. - What arguments does Judge Sykes make in his dissenting opinion for why discrimination based on sexual orientation does not violate Title VII?

•Judge Sykes relies on the long history of court cases in which discrimination on the sexual orientation was NOT understood to be included under Title VII, and decries the majority's reversal of these rulings. Sykes stated that the broad cultural shift about gay rights means that the legislature should take up the issue, but that the majority's statement of a new public policy violates the law. Judge Sykes believes the relevant questions to be whether discrimination on the basis of sexual orientation was wrong as an original matter. Judge Sykes believes that the interpretation must rely entirely on the text of Title VII. He also disagrees with the majority's holding that it is impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex. He denies that the comparative method of proof applies to determine discrimination, believing it to be an evidentiary test, not an interpretive tool. Finally, Judge Sykes would follow the rule of stare decisis, and uphold the line of cases holding that discrimination on the basis of sexual orientation does not constitute discrimination on the basis of sex.

Young v. UPS - Why does Justice Scalia in his dissenting opinion disagree with the decision of the Court? Are these denial of accommodation cases more appropriately treated as disparate impact claims? Would doing so have made a difference in this case? Why or why not?

•Justice Scalia argued that the Act only prohibited an employer from distinguishing between employees of similar abilities and inabilities because of pregnancy, while differing treatment for other reasons is permissible. To adopt a broader reading of the Act's protections would entitle pregnant workers to every possible accommodation, he argued. Justice Scalia also maintained that the Act's main intent was to clarify that pregnancy discrimination is sex discrimination.

White v. Beltram Edge Tool Supply - What evidence was there that the plaintiff had a "serious health condition"? Why does the appeals Court say that it doesn't matter whether all of that evidence was at the employer's disposal when it made its termination decision?

•The FMLA certification completed by Ms. White's orthopedist stated clearly that her injury qualified as a serious health condition under the Act's definition. The doctor noted that the employee would be incapacitated for a single continuous period of time due to her medical treatment, including time for treatment and recovery. The doctor certified that White would be incapacitated for more than three days. The appeals court found no authority suggesting that, to determine whether an employee had a "serious health condition" a court must limit itself to considering only evidence received by the employer before the employee was fired. The employer was on notice of the injury and was awaiting certification. The appeals court held that the date on which White gave medical evidence to Beltram has no bearing on whether, as a factual matter, she had a serious health condition. In the posture of the case, she did suffer from a serious health condition at least for purposes of the motion for summary judgment.

Young v. UPS - What interpretation of this clause does the Court majority adopt? How can plaintiffs prove that denial of a requested "accommodation" is pregnancy discriination? Is it likely that, on remand, Young will be able to prove that UPS's denial of a light-duity assignment was discrimiation? Why or why not?

•The Supreme Court does not adopt either the plaintiff's nor the defendant's interpretation. The Court expalined that the clause does not say that the employer must treat pregnant employees the "same" as "any other persons" nor does it otherwise specify which other persons Congres had in mind. •Instead, the Court adopted the view that an individual pregnant worker who seeks to show disparate treatmetn through indirect evidence may do so through the application of the McDonnel Douglas framework. Through this framework, a plaintiff may prove that denial of a areuested " accommodation" is pregnandy discrimination. •She can submnit evidence that UPS had 3 separate accommodation policies, and if the facts are as Young alleged, she will be able to show that uPS accommodates most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations.

White v. Beltram Edge Tool Supply - What does the FMLA require of employees in terms of notice to their employers? Why does the Appeals Court conclude that the notice provided by the plaintiff was sufficient? That it was timely?

•The employee must give notice to the employer of the need for leave under the FMLA. The district court found that White did not give proper notice because her need for leave was foreseeable. The appeals court found that the need for leave was unforeseeable. In that case, her notice was adequate under the less stringent requirements governing notice for unforeseeable leave. If an employee's need for leave is foreseeable, she must give her employer at least 30 days' advance notice, in which case, the employee must give only "such notice as is practicable." If the employee's need for leave is unforeseeable, the 30-day requirement does not apply. In that case, the employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case. In this case, the knee was injured in April 2010, and White underwent a course of physical therapy; surgery might eventually be required, but that was unknown at the time, so unforeseeable. In fact, it wasn't until she reinjured the knee in January 2011, that surgery became a possibility, but it was relatively urgent, so she was not required to give 30 days' advance notice at that point. When her knee was reinjured, it gave out, it was painful, she could not put any weight on it, and she was referred to an orthopedic surgeon, all of which she told her employer. Notice was sufficient.

Hively v. Ivy Tech Cmty, College of Ind - What was the legal issue before the court? What did the court decide?

•The legal issue in the case was whether discrimination based on sexual orientation constituted sex discrimination under Title Vii, and whether discrimination based on plaintiff's right to associate intimately with a person of the same sex constituted sex discrimination under Title VII. The court reversed its line of cases denying that such conduct did not constitute sex discrimination, relying on decades of U.S. Supreme Court cases showing the transition in the understanding of sex discrimination.

Young v. UPS - What is the legal issue in this case? What did the Court decide (in the majority opinion authored by Justice Breyer)?

•The legal issue in this case is whether the Pregnancy Discrimination Act requires an employer to provide the same work accommodations to an employee with pregnancy-related work limitations as to employees with similar, but non-pregnancy related work limitations. The Supreme Court held that the PDA does not require such employer action, but that that a plaintiff may show that she faced disparate treatment from her employer according to the framework established in McDonnell Douglas Corp. v. Green, which requires evidence that the employer's actions were more likely than not based on discriminatory motivation, and that any reasons the employer offered were pretextual.

Huhmann v. Fed. Express Corp. - What was the legal issue in this case? What did the Appeals Court decide?

•The legal issue was whether FedEx had violated USERRA when it paid Huhmann a smaller bonus than he was entitled to under USERRA.