NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on July 2 ordered the U.S. government to pay attorney fees to an employer as a sanction for bad faith in a Fair Labor Standards Act (FLSA) suit (Gate Guard Services, L.P., et al. v. Thomas E. Perez, Secretary, Department of Labor, No. 14-40585, 5th Cir.; 2015 U.S. App. LEXIS 11480).
ATLANTA - The 11th Circuit U.S. Court of Appeals on June 30 remanded two breach of fiduciary duty cases brought by participants in a 401(k) plan sponsored by SunTrust Banks Inc. related to the inclusion of proprietary mutual funds in the defined-contribution plan, in light of the U.S. Supreme Court's recent decision in Tibble v. Edison International (135 S. Ct. 1823 ) (Sandra D. Stargel v. SunTrust Banks, Inc., et al.; Barbara J. Fuller v. SunTrust Banks, Inc., et al., No. 14-13207, 11th Cir.; 2015 U.S. App. LEXIS 11187).
NEW YORK - The Second Circuit U.S. Court of Appeals on July 2 vacated an order denying a motion for partial summary judgment sought by unpaid magazine interns for reconsideration in light of another Second Circuit ruling in an intern case the same day in which the appellate court established a set of factors courts can use to consider whether an intern is an employee (Xuedan Wang, et al. v. The Hearst Corp., No. 13-4480, 2nd Cir.; 2015 U.S. App. LEXIS 11516).
NEW YORK - A multiemployer pension plan failed to demonstrate the amount of unfunded benefits attributable to post-petition operation of a bankruptcy estate, the Second Circuit U.S. Court of Appeals ruled on July 2 in a summary order disallowing the plan's administrative expense claim for a portion of the estate's withdrawal liability (Food Employers Labor Relations Association and United Food and Commercial Workers Pension Fund v. The Great Atlantic & Pacific Tea Company, No. 14-3349-bk, 2nd Cir.; 2015 U.S. App. LEXIS 11402).
SAN FRANCISCO - An employer did not unlawfully interfere with a pension plan participant's right to early retirement benefits in violation of the Employee Retirement Income Security Act by terminating her employment because she was terminated for violating the employer's privacy policies, the Ninth Circuit U.S. Court of Appeals affirmed July 1 in an unpublished opinion (Rosemarie Cole v. The Permanente Medical Group, Inc., et al., No. 13-15952, 9th Cir.; 2015 U.S. App. LEXIS 11346).
RICHMOND, Va. - An employer may be held liable for a hostile work environment created by an unknown individual, the Fourth Circuit U.S. Court of Appeals ruled July 1, reversing a trial court's ruling to the contrary (Renee Pryor v. United Air Lines, Inc., No. 14-1442, 4th Cir.; 2015 U.S. App. LEXIS 11317).
CHICAGO - An attorney may not recover fees under the common-fund doctrine in addition to or in lieu of fees awarded under a fee-shifting statute like the Employee Retirement Income Security Act "in the absence of a contract," the Seventh Circuit U.S. Court of Appeals ruled July 1 (Darryl Pierce, et al. v. Visteon Corporation, et al., No. 14-2542, 7th Cir.; 2015 U.S. App. LEXIS 11333).
BOSTON - The First Circuit U.S. Court of Appeals on July 1 upheld the National Labor Relations Board's (NLRB) jurisdiction over a residential cleaning business and election of a union to represent the housekeepers (National Labor Relations Board v. Le Fort Enterprises, Inc. d/b/a Merry Maids of Boston, No. 14-1917, 1st Cir.; 2015 U.S. App. LEXIS 11365).
CINCINNATI - A split Sixth Circuit U.S. Court of Appeals on July 1 entered a judgment enforcing the National Labor Relations Board's jurisdiction over an Indian tribe's operation of a casino on reservation land and enforced a board's decision finding that the casino's no-solicitation policy violated the National Labor Relations Act (NLRA) and ordering the casino to cease and desist from maintaining the order and to reinstate a former employee to her position with back pay and benefits (Soaring Eagle Casino and Resort v. National Labor Relations Board, No. 14-2405/2558, 6th Cir.).
WASHINGTON - The U.S. Supreme Court on June 29 let stand a Ninth Circuit U.S. Court of Appeals ruling that a district court did not err in ordering a disability insurer to pay attorney fees incurred by a plan on behalf of a participant because the plan supported the participant and assumed the same position as a plaintiff in the participant's lawsuit (Sun Life Assurance Company of Canada v. Group Disability Benefits Plan for Gynecologic Oncology Associates Partners, LLC, No. 14-1251, U.S. Sup.).
WASHINGTON, D.C. - The U.S. Supreme Court on June 29 declined to review a Fourth Circuit U.S. Court of Appeals ruling on the burden of proof on the issue of causation and the proper standard to assess causation in a 401(k) breach of fiduciary duty case under the Employee Retirement Income Security Act, following the solicitor general's finding that the Fourth Circuit correctly decided both issues and that "there is no clear circuit split on either question" (RJR Pension Investment Committee, et al. v. Richard G. Tatum, No. 14-656, U.S. Sup.).
WASHINGTON, D.C. - The U.S. Supreme Court on June 29 granted review of a divided Second Circuit U.S. Court of Appeals ruling that the Employee Retirement Income Security Act preempts Vermont's health care data collection law, which requires health care payers to report claims and health care-services data to a state agency, as applied to a self-funded ERISA benefit plan or its third-party administrators (Alfred J. Gobeille v. Liberty Mutual Insurance Company, No. 14-181, U.S. Sup.).
AUSTIN, Texas - A Texas federal magistrate judge on June 29 ruled that testimony by two experts for a woman alleging that she was wrongfully terminated is admissible, but that testimony by the woman herself, acting as an expert, is not because she did not properly disclose her intended opinions and she is not qualified as an expert on the issues at hand (Tamela Cleo Saldana v. Texas Department of Transportation, et al., No. 1:14-cv-282, W.D. Texas; 2015 U.S. Dist. LEXIS 83815).
NEW YORK - U.S. Tennis Association (USTA) umpires are independent contractors, not employees, for the purposes of the Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL), the Second Circuit U.S. Court of Appeals ruled June 29, affirming a trial court's decision (Steven Meyer, et al. v. United States Tennis Association, No. 14-3891, 2nd Cir.; 2015 U.S. App. LEXIS 11037).
WASHINGTON, D.C. - The U.S. Supreme Court on June 30 granted the petition for writ of certiorari in an appeal asking it to decide whether Abood v. Detroit Bd. of Ed. (431 U.S. 209 ) should be overruled and whether requiring public employees to affirmatively object to subsidizing nonchargeable speech by public-sector unions violates the First Amendment to the U.S. Constitution (Rebecca Friedrichs, et al. v. California Teachers Association, et al., No. 14-915, U.S. Sup.).
GREENVILLE, S.C. - A South Carolina federal judge on June 25 granted a motion by restaurant servers to conditionally certify a Fair Labor Standards Act (FLSA) collective action, but denied the plaintiffs' subsequent motion to narrow the scope of the class (Lynn Walter, et al. v. Buffets Inc., d/b/a HomeTown Buffets, Old Country Buffet, Fire Mountain, Country Buffet, Ryan's, No. 13-2995, D. S.C.; 2015 U.S. Dist. LEXIS 82507).
SAN JUAN, Puerto Rico - A Puerto Rico federal magistrate judge on June 24 recommended that a motion for conditional certification in a wage dispute against Avon Products Inc. be granted in part and that Avon's motion to strike be denied (Helen Rossello, et al. v. Avon Products, Inc., No. 14-1815, D. Puerto Rico; 2015 U.S. Dist. LEXIS 83388).
MEMPHIS, Tenn. - A psychologist can testify about whether a fitness exam for an airport police officer was job related and consistent with business necessity but must wait until trial for a determination on whether the officer's supervisor acted in a reasonable and prudent manner by relieving the officer of duty and referring her for the exam, a Tennessee federal judge held June 25 (Rosalyn Small v. Memphis-Shelby County Airport Authority, et al., No. 2:13-cv-02437, W.D. Tenn.; 2015 U.S. Dist. LEXIS 82523).
SHREVEPORT, La. - A Louisiana federal jury on June 23 awarded a former Union Pacific Railroad Co. employee, who accused the company of retaliation, $375,000 in damages (Jeffrey Davis v. Union Pacific Railroad Company, No. 12-2738, W.D. La.).
CHICAGO - Less than a month after it was determined that most of the part-time faculty of a Chicago-based university may vote on union representation because the university failed to meet its burden of establishing that those employees serve a religious function, the National Labor Relations Board Region 13 acting regional director on June 23 ruled that the same university is subject to the NLRB's jurisdiction in an organizing dispute with its full- and regular part-time housekeepers (Saint Xavier University and Service Employees International Union Local 1, No. 13-92296, NLRB Region 13).
SAN FRANCISCO - A California federal judge on June 22 granted final approval of an employment agency's $8.75 million payment to settle various wage claims filed by a class of temporary employees (Vera Willner v. Manpower Inc., No. 11-2846, N.D. Calif.; 2015 U.S. Dist. LEXIS 80697).
NEW YORK - A teacher who was denied tenure after three years of probation may proceed with racial discrimination claims, the Second Circuit U.S. Court of Appeals ruled June 24, partially vacating a district court's summary judgment ruling for the principal and school district (Rickey L. Tolbert v. Richard Smith and Rochester City School District, No. 14-1012, 2nd Cir.; 2015 U.S. App. LEXIS 10656).
FRANKFORT, Ky. - Three welders seeking unpaid wages failed to demonstrate that their proposed class should be certified, a split Kentucky Court of Appeals panel ruled June 19 (Richard Powell, et al. v. James Marine, Inc., et al., No. 2014-CA-001580-ME, Ky. App.; 2015 Ky. App. Unpub. LEXIS 457).
ST. LOUIS - A Missouri federal judge on June 19 granted in part and denied in part a motion to stay a class wage suit brought against a pizza chain pending the U.S. Supreme Court's decision in Bouaphakeo v. Tyson Foods, Inc. (765 F.3d 791 [8th Cir. 2014]) (William Timothy Perrin, et al. v. Papa John's International, Inc., et al., No. 09-1335, E.D. Mo.; 2015 U.S. Dist. LEXIS 79543).
PASADENA, Calif. - A Federal Express Co. (FedEx) worker suing for unpaid wages failed to prove that her claims brought on behalf of two proposed classes could be decided on a classwide basis, the Ninth Circuit U.S. Court of Appeals ruled June 22, affirming the trial court's decision (Yvette Green, et al. v. Federal Express Corporation, No. 13-56093, 9th Cir.; 2015 U.S. App. LEXIS 10500).