- Volume 14, Issue #11
- Split U.S. Supreme Court Upholds Class Action Waivers In Arbitration Agreements
WASHINGTON, D.C. - A sharply divided U.S. Supreme Court ruled 5-4 on May 21 in three consolidated cases that arbitration agreements barring class action proceedings must be enforced (Epic Systems Corp. v. Jacob Lewis, No. 16-285, Ernst & Young, et al. v. Stephen Morris, et al., No. 16-300, NLRB v. Murphy Oil USA, Inc., et al., No. 16-307, U.S. Sup.).
- U.S. High Court Vacates Ruling For Employee In Class Arbitration Suit
WASHINGTON, D.C. - The U.S. Supreme Court on May 29 granted a petition for writ by United Healthcare Services Inc. (UHS) in a case over a class arbitration waiver, vacated the judgment in favor of the employee and remanded to the Seventh Circuit U.S. Court of Appeals for further consideration in light of Epic Systems Corp. v. Lewis, 584 U.S. ___ (2018) (United Healthcare Services, Inc. v. Sandra Riederer, No. 16-996, U.S. Sup., 2018 U.S. LEXIS 3244).
- Supreme Court Won't Hear 4 Appeals Seeking To Validate Class Arbitration
WASHINGTON, D.C. - The U.S. Supreme Court on May 29 denied four petitions for writ of certiorari filed in three cases all seeking reversal of rulings by the Fifth Circuit U.S. Court of Appeals upholding employment arbitration agreements barring class, collective, joint or representative actions (National Labor Relations Board v. 24 Hour Fitness USA, Inc., et al., No. 16-689, Alton J. Sanders v. 24 Hour Fitness USA, Inc., No. 16-701, National Labor Relations Board v. PJ Cheese, Inc., No. 16-800, National Labor Relations Board v. SF Markets, L.L.C., No. 16-801, U.S. Sup.).
- U.S. High Court Asked To Decide If Title VII Includes Sex Orientation Bias
WASHINGTON, D.C. - A skydiving company, found to have violated Title VII of the Civil Rights Act of 1964 when it fired a gay employee by a sharply divided en banc Second Circuit U.S. Court of Appeals, asked the U.S. Supreme Court in a May 29 petition for writ of certiorari to decide if Title VII's protections extend to sexual orientation bias (Altitude Express, Inc., et al. v. Melissa Zarda, et al., No. 17-1623, U.S. Sup.).
- 11th Circuit Rejects Sexual Orientation Bias Claim Under Title VII
ATLANTA - An 11th Circuit U.S. Court of Appeals panel on May 10 reaffirmed the precedent established in Evans v. Ga. Regional Hospital, 850 F.3d 1248, 1255 (11th Cir. 2017), and ruled that Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., does not cover bias based on sexual orientation (Gerald Lynn Bostock v. Clayton County Board of Commissioners, et al., No. 17-13801, 11th Cir., 2018 U.S. App. LEXIS 12405).
- Pennsylvania Federal Judge Applies Federal Tolling To State Employment Claims
PHILADELPHIA - The federal law of tolling, not the Pennsylvania law, applies to state law claims within the federal court's supplemental jurisdiction, a Pennsylvania federal judge ruled May 22, denying a motion by Allstate Insurance Co. to grant partial summary judgment on state law claims by 12 agents who joined others suing after they were transitioned from employees to independent contractors (Gene R. Romero, et al. v. Allstate Insurance Company, et al., Nos. 01-3894, 01-6764, 03-6872, 15-1049 and 15-3047, E.D. Pa., 2018 U.S. Dist. LEXIS 85374).
- Class Suit Over Denied Rest Periods Is Remanded Per Local Controversy Exception
SAN DIEGO - A California federal judge on May 15 remanded a class complaint over missed rest periods by employees of four ambulance companies more than a year after the case was removed to federal court, finding that the Class Action Fairness Act's (CAFA) local controversy exception applied (Reuben Calleros, et al. v. Rural Metro of San Diego, Inc., et al., No. 17-686, S.D. Calif., 2018 U.S. Dist. LEXIS 83548).
- Former Casino Dealer Disputes Magistrate's Ruling In Worker Class Action
ASHEVILLE, N.C. - A magistrate judge erred in recommending dismissal of a former casino employee's wage-and-hour class claims based on the employer's connection to an Indian tribe, the ex-worker says in a May 11 objection to the magistrate judge's memorandum and recommendation in North Carolina federal court (Joseph Clark v. Harrah's NC Casino Company, LLC, et al., No. 1:17-cv-00240, W.D. N.C.).
- Wells Fargo Will Appeal $97 Million Rest Break Award For Mortgage Consultants Class
LOS ANGELES - Wells Fargo Bank N.A. filed a notice of appeal on May 15, a week after a California federal judge awarded a class of Wells Fargo Bank N.A. home mortgage consultants (HMCs) more than $97 million in damages on claims that they were denied rest breaks and a derivative California's unfair competition law (UCL) claim (Jacqueline F. Ibarra, et al. v. Wells Fargo Bank, N.A., et al., No. 17-4344, C.D. Calif., 2018 U.S. Dist. LEXIS 78513).
- 9th Circuit: Court Erred Limiting Class Proof To Admissible Evidence
PASADENA, Calif. - A district court erred in several ways when it denied class certification in a wage-and-hour lawsuit, including via its limitation of class certification proof to admissible evidence, a Ninth Circuit U.S. Court of Appeals panel ruled May 3 (Marilyn Sali, et al. v. Corona Regional Medical Center, et al., No. 15-56460, 9th Cir., 2018 U.S. App. LEXIS 11497).
- Lyft Hit With Driver Class Suit Claiming Deceptive Payment Practices
SAN FRANCISCO - Lyft Inc., an app-based taxi service, has deceived and violated California's unfair competition law (UCL) by misrepresenting and changing fare practices, one driver alleges in his May 10 class complaint filed in the U.S. District Court for the Northern District of California (Fernando Villasenor, et al. v. Lyft, Inc., et al., No. 18-2769, N.D. Calif.).
- Houston Texans Cheerleaders File Collective Action Seeking Unpaid Wages
HOUSTON - The Houston Texans football team and its cheerleading coach wrongfully require cheerleaders to work off the clock and fail to pay minimum and overtime wages, one former cheerleader, referred to only by her initials, alleges in her May 21 collective action filed in a Texas federal court (P.G.G., et al. v. Houston NFL Holdings, L.P. D/B/A Houston Texans, et al., No. 18-1662, S.D. Texas).
- Employee Asserts UCL, Labor Code Violations In California Court
SANTA ANA, Calif. - A former support staff employee on May 29 filed a class action complaint in a California state court against a rehabilitation center and its owner, alleging that they violated numerous California Labor Code sections and California's unfair competition law (UCL) (Alex Martinez v. Recovery Bay Rehabilitation Center, LLC, No. 2018-00995738, Calif. Super., Orange Co.).
- Courier Asserts UCL, PAGA Claims Against Delivery Service In California Court
SAN FRANCISCO - A delivery courier on May 15 filed a class action complaint against a same-day delivery courier service in a California state court, alleging that it violated California's unfair competition law (UCL) and labor code when it misclassified employees as independent contractors (Raef Lawson v. Deliv Inc., No. 566577, Calif. Super., San Francisco Co.).
- Court Affirms UCL Verdict Against Employer, Nearly $1M Attorney Fee Award
SACRAMENTO, Calif. - A California appeals court on May 8 affirmed a class action California unfair competition law (UCL) verdict involving labor code violations, saying the evidence supported the conclusion that a company improperly reduced wages by future medical payments and barred meal breaks and saying a nearly $1 million attorney fee award was proper (Robert Kane, et al. v. Valley Slurry Seal Co., et al., No. C079558, Calif. App., 3rd Dist., 2018 Cal. App. Unpub. LEXIS 3149).
- 5th Circuit Affirms Arbitrator Ruling For Union In Dispute Over Contract Workers
NEW ORLEANS - A Fifth Circuit U.S. Court of Appeals panel on June 1 upheld an arbitrator's ruling in favor of a union in a dispute over an employer's use of numerous contract workers to complete a large project, finding that parties were bound by the decision pursuant to their collective bargaining agreement (CBA) as there was no showing of abuse of discretion (Delek Refining, Limited v. Local 202, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Services Workers International Union, AFL-CIO, No. 17-40593, 5th Cir., 2018 U.S. App. LEXIS 14550).
- Split En Banc 8th Circuit Finds For UPS In Driver's Disability Bias Complaint
ST. LOUIS - An divided en banc Eighth Circuit U.S. Court of Appeals on May 11 vacated a panel's partial reversal of a trial court's summary judgment ruling for United Parcel Service of America Inc. (UPS) in a disability discrimination suit by a former driver and affirmed the district court's decision, finding that UPS participated in the interactive process after the driver submitted requests for accommodations and there was no showing of bad faith (Jerry Lee Faidley v. United Parcel Service of America, Inc., No. 16-1073, 8th Cir., 2018 U.S. App. LEXIS 12392).
- Disability Bias Claim By Nurse Who Refused Vaccine Is Reinstated By 3rd Circuit
PHILADELPHIA - A Pennsylvania nurse, Aleka Ruggiero, who was fired for refusing to get a required vaccine, may proceed with her complaint under the Americans with Disabilities Act (ADA), a Third Circuit U.S. Court of Appeals panel ruled June 5 (Aleka Ruggiero v. Mount Nittany Medical Center, et al., No. 17-2227, 3rd Cir., 2018 U.S. App. LEXIS 15056).
- No Employment Relationship Dooms Juvenile Center Worker's Disability Bias Claims
CHICAGO - A Seventh Circuit U.S. Court of Appeals panel on May 18 upheld a summary judgment ruling for an Indiana county board of commissioners in a disability bias suit, ruling that the plaintiff was unable to show that the board was his employer for the purposes of his Americans with Disabilities Act (ADA) lawsuit (Carleton Harris v. Allen County Board of Commissioners, No. 17-2577, 7th Cir., 2018 U.S. App. LEXIS 12951).
- 9th Circuit: No Bias Shown By Disabled Worker Who Failed To Apply For New Job
PORTLAND, Ore. - An employee may not employ the burden-shifting framework during trial in an attempt to succeed on his disability bias suit under the Americans with Disabilities Act (ADA) and is required to prove that his employer could have made a reasonable accommodation that would have enabled him to perform the essential functions of his job, a Ninth Circuit U.S. Court of Appeals panel ruled May 11 (Danny Snapp v. United Transportation Union, et al., No. 15-35410, 9th Cir., 2018 U.S. App. LEXIS 12336).
- 10th Circuit Upholds But-For Causation Instruction In Title VII Retaliation Case
DENVER - A district court did not err when it instructed a jury in a Title VII of the Civil Rights Act of 1964 retaliation case that the plaintiff must show that retaliatory animus was "the but for cause" for eliminating her position because that instruction is not equivalent to a "sole cause" standard, a 10th Circuit U.S. Court of Appeals panel ruled June 1 (Mary McDonald v. City of Wichita, Kansas, et al., No. 17-3043, 10th Cir., 2018 U.S. App. LEXIS 14481).
- 2nd Circuit: New York City Worker May Proceed With Timely Retaliation Claims
NEW YORK - An employee of the city of New York who alleges that his duties were reduced and promotions were denied due to his sexual orientation, national origin and color may proceed with claims of retaliation that allegedly occurred within the 300 days of his second Equal Employment Opportunity Commission complaint, a Second Circuit U.S. Court of Appeals panel ruled April 30 (Louis M. Duplan v. The City of New York, No. 17-1359, 2nd Cir., 2018 U.S. App. LEXIS 11116).
- Michigan Panel Reverses Dismissal Of Title VII Claims Against Popeye's Franchise
DETROIT - A Michigan appeals panel on May 10 held that a lower court erred in rejecting a claim against a Popeye's franchise and its owner for unlawful retaliation in violation of Title VII of the Civil Rights Act and the Elliot-Larsen Civil Rights Act (ELCRA), reversing and remanding (Wayne Watkins v. Saginaw's Famous Fried Chicken, LLC, et al., No. 337288, Mich. App., 2018 Mich. App. LEXIS 2241).
- Jury Rules For Rent-A-Center In Transgender Bias Suit Brought By EEOC
URBANA, Ill. - An Illinois federal jury on May 18 returned a verdict for a rent-to-own retailer in a transgender discrimination suit brought by the Equal Employment Opportunity Commission on behalf of a former employee who alleged that she was fired after transitioning (U.S. Equal Employment Opportunity Commission v. Rent-A-Center East, Inc., No. 16-2222, C.D. Ill.).
- U.S. High Court Will Decide Railroad Worker's Dispute Over Taxes On Lost Wages
WASHINGTON, D.C. - The U.S. Supreme Court on May 14 agreed to hear an appeal over the payment of employment taxes under the Railroad Retirement Tax Act (RRTA) on a railroad's payment to a worker for time lost from work due to work-related injuries (BNSF Railway Company v. Michael D. Loos, No. 17-1042, U.S. Sup.).
- Hawaii Tour Companies Will Pay $570,000 To End Male-On-Male Harassment Suit
HONOLULU - The U.S. District Court for the District of Hawaii on May 29 approved an agreement reached by the Equal Employment Opportunity Commission and three Hawaii tour companies under which the companies will pay $570,000 and provide other relief to end a sexual harassment lawsuit (U.S. Equal Employment Opportunity Commission v. Discovering Hidden Hawaii Tours, Inc., et al., No. 17-67, D. Hawaii).
- University Of Denver Will Pay $2.66M, Increase Salaries To Settle Equal Pay Suit
DENVER - A Colorado federal judge on May 18 signed off on an equal pay settlement between the Equal Employment Opportunity and the University of Denver under which the university will pay $2.66 million in damages to seven female professors and increase those same professors' salaries (Equal Employment Opportunity Commission v. University of Denver, No. 16-2471, D. Colo.).
- 5th Circuit Upholds Firing Of Officer Who Didn't Report Guard's Stolen Firearm
NEW ORLEANS - A medical center did not commit gender discrimination when it fired a police officer for failing to report that a security guard was in possession of a stolen gun but did not fire the security guard, a Fifth Circuit U.S. Court of Appeals panel ruled June 5 (Joe W. Collier v. The University of Mississippi Medical Center, No. 18-60025, 5th Cir., 2018 U.S. App. LEXIS 15111).
- Detroit Firefighters Failed To Show Bias In Layoffs; May Proceed Against Union
CINCINNATI - A Sixth Circuit U.S. Court of Appeals panel on June 1 reinstated national origin and race bias claims by Detroit firefighters against their union as the result of a change in seniority calculation for layoffs, joining the Ninth and Seventh circuits in holding that Title VII of the Civil Rights Act of 1964 discrimination claims against a union do not require a showing of breach of duty of fair representation (Erick Peeples, et al. v. City of Detroit, Michigan, et al., Nos. 17-1222/1250, 6th Cir., 2018 U.S. App. LEXIS 14486).
- 11th Circuit Reinstates Clerk's Race Bias, Retaliation Claims
ATLANTA - A clerk who was fired a week after complaining about alleged race discrimination may proceed with her claims of retaliation and some of her race and nationality discrimination claims, an 11th Circuit U.S. Court of Appeals panel ruled June 1, finding direct evidence of discrimination when the clerk was denied a requested transfer (Jerberee Jefferson v. Sewon America, Inc., No. 17-11802, 11th Cir., 2018 U.S. App. LEXIS 14781).
- FCA's Arbitration Agreement Won't Apply To Workers Hired Before Its Implementation
DETROIT - A Michigan federal judge on May 24 agreed to compel arbitration of racial bias claims filed against FCA US LLC by employees hired after an arbitration agreement was in place, but declined to enforce the agreement as to employees hired before the agreement's implementation, finding that there was not a valid agreement in place (Marlin Williams, et al. v. FCA US LLC, No. 17-10097, E.D. Mich., 2018 U.S. Dist. LEXIS 87184).
- Employers Escape Transgender Discrimination Case; ACA Claim Dismissed
MADISON, Wis. - Direct employers are not subject to liability in a case alleging discrimination against transgender individuals in the provision of health insurance, but claims against the providers of that insurance may proceed and the plaintiffs may amend their Patient Protection and Affordable Care Act (ACA) claims, a federal judge in Wisconsin held May 11 (Alina Boyden and Shannon Andrews v. State of Wisconsin Department of Employee Trust Funds, et al., No. 17-264, W.D. Wis., 2017 U.S. Dist. LEXIS 191306).
- 10th Circuit: Religious Bias Suit Fails In Light Of Reasonable Accommodation
DENVER - An employer that permitted an employee to not report to work on his Sabbath but did not offer alternative overtime hours provided the employee with a reasonable accommodation, a 10th Circuit U.S. Court of Appeals panel ruled May 24 (Jerome A. Christmon v. B&B Airparts, Inc., No. 17-3209, 10th Cir., 2018 U.S. App. LEXIS 13673).
- Former Police Sergeant Awarded Attorney Fees, Sanctions In Title VII Suit
CINCINNATI - On May 31, two months after affirming a $350,000 jury verdict for a former Michigan state police sergeant on her retaliation claim, the Sixth Circuit U.S. Court of Appeals granted the former sergeant's full request for attorney fees and awarded her sanctions, but only 1 percent of the amount she requested (Linda Mys v. Michigan Department of State Police, No. 17-1445, 6th Cir., 2018 U.S. App. LEXIS 14311).
- Privacy Class Claims Against Employer, Fingerprint Scanner Company Survive Dismissal
CHICAGO - Class claims by an employee challenging the collection and storage of fingerprint scans may proceed against the company that employed her and the third-party scanner provider, an Illinois federal judge ruled May 31 (Cynthia Dixon v. The Washington and Jane Smith Community - Beverly, et al., No. 17-8033, N.D. Ill., 2018 U.S. Dist. LEXIS 90344).
- Class Suit Over Bob Evans' Collection Of Employees' Fingerprints Is Remanded
PEORIA, Ill. - An Illinois federal judge on May 23 sent a class complaint accusing a restaurant chain of improperly collecting and retaining employees' fingerprints back to state court, ruling that the district court lacks jurisdiction (Emily Kiefer, et al. v. Bob Evans Farms, LLC, et al., No. 17-1544, C.D. Ill., 2018 U.S. Dist. LEXIS 88639).
- Claims Trimmed, Class Certified In Computer Tech's Age Bias Case
NORFOLK, Va. - A Virginia federal judge on May 9 issued two separate opinions, one granting conditional certification and the second partially granting dismissal in a complaint brought by a former Virginia school district computer specialist who alleges that a decision to force all specialists to reapply for their jobs discriminated against older employees (Joseph H. Andreana et al. v. Virginia Beach City Public Schools, et al., No. 17-574, E.D. Va., 2018 U.S. Dist. LEXIS 78799, 2018 U.S. Dist. LEXIS 78801).
- NLRB Letter Confirms Commitment To Joint-Employer Rule-Making
WASHINGTON, D.C. - National Labor Relations Board Chairman John F. Ring sent a letter to three U.S. senators on June 5 confirming the NLRB's plans to engage in joint-employer rule-making in the near future.
- McDonald's Franchisee Pays Penalties For Child Labor Violations
CENTRAL VALLEY, N.Y. - S&P Enterprises Inc., a McDonald's franchisee, has paid $8,829 in penalties to resolve child labor violations in 11 New Jersey fast food restaurants, the U.S. Department of Labor's Wage and Hour Division (WHD) announced May 18.