Articles Posted in Labor & Employment Law

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Progressive publishes and sells business publications, using sales representatives who are paid an hourly wage plus bonuses based on the number of sales per hour while they are logged onto their workstation computers. Progressive previously gave employees two 15-minute paid breaks per day. In 2009, Progressive eliminated paid breaks but allowed employees to log off of their computers at any time, for any duration. Progressive does not pay them for time they are logged off of their computers, including bathroom breaks and time used to prepare for the next call. Sales representatives estimate the total number of hours that they expect to work during the upcoming pay period. They are subject to discipline for failing to work that number of hours. Progressive sends representatives home for the day if their sales are not high enough and sets fixed schedules for representatives when that is deemed necessary. The Department of Labor alleged that this policy violated the Fair Labor Standards Act “by failing to compensate . . . sales representative employees for break[s] of twenty minutes or less . . . .” The district court agreed that that 29 C.F.R. 785.18 created a bright-line rule. The Third Circuit affirmed that the Act requires employers to compensate employees for all rest breaks of 20 minutes or less. View "Secretary United States Department of Labor v. American Future Systems Inc." on Justia Law

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Plaintiffs were among a class of individuals working in two separate part-time capacities for Lackawanna County. The County apparently tracked and paid these employees for each of their individual jobs, but in 2011 became aware that it had failed to aggregate the hours in both jobs, resulting in a failure to pay the overtime rate for hours beyond 40 hours per pay period. Lackawanna County conceded basic overtime violations under the Fair Labor Standards Act, 29 U.S.C. 207(a)(1). At trial, the plaintiffs presented inadequate evidence on “willfulness,” so that the court entered a directed verdict on that issue. A finding of willfulness expands the limitations period for claims under the Act, in effect permitting a plaintiff to receive a larger award. The Third Circuit affirmed. The evidence did not suggest the County was subjectively aware of the FLSA problem at the time of the violations, at least with respect to the plaintiffs. A lack of evidence going to good faith is not the same as evidence in support of intentionality. The court also affirmed an award of attorneys’ fees at an hourly rate of $250. View "Souryavong v. County of Lackawanna" on Justia Law

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Zuber, employed by Boscov’s at Fairgrounds Farmers’ Market in Reading, Pennsylvania, suffered an injury at work, immediately filed a workers’ compensation claim, and received work leave. About two weeks after Zuber returned to work, Boscov’s fired Zuber, Months later, Boscov’s and Zuber signed a Compromise and Release Agreement before the Pennsylvania Department of Labor and Industry Workers’ Compensation Office. Zuber later sued under the Family and Medical Leave Act, 29 U.S.C. 2617, and common law, claiming that Boscov’s failed to notify him of his FMLA rights and to designate his leave as FMLA protected; retaliated against him for exercising his FMLA rights; and retaliated against him for filing a workers’ compensation claim. The district court dismissed, based on a release provision in the Agreement. The Third Circuit reversed, based on the Agreement’s references to “benefits” and “monies of any kind,” “in connection with the alleged 8/12/2015 [sic] work injury claim as well as any other work injury claim(s).” Zuber seeks benefits and monies from FMLA and common law claims, not from matters related to the injury. View "Zuber v. Boscov's, Inc." on Justia Law

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Moody, a substitute custodian, sued the Atlantic City Board of Education for sexual harassment and retaliation under Title VII, 42 U.S.C. 2000e-2(a)(1), 3(a), and the New Jersey Law Against Discrimination. The district court rejected the claims on summary judgment, finding that the alleged harasser, Marshall, was not Moody’s supervisor. Marshall was the custodial foreman at one of the district schools and had authority to select which substitute custodians worked at the school. Moody was not guaranteed work and worked only when selected by a foreman; Marshall controlled 70% of her hours. The Third Circuit vacated. Marshall was empowered to determine whether Moody worked at a particular school, which had a direct impact on her pay, and the evidence indicated that no one else provided supervision at that school. In addition, there were disputed facts concerning whether Moody sustained a tangible employment action. View "Moody v. Atlantic City Board of Education" on Justia Law

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The Fund, a multi-employer benefit plan established under Labor Management Relations Act, 29 U.S.C. 186(c)(5). The Act broadly prohibits employers from providing payments of money or other items of value to employee representatives, with an exception for employee benefit trust funds that comply with statutory requirements, including mandatory administration by a board of trustees composed of an equal number of employee and employer representatives. The Fund is overseen by five union-designated trustees and five employer-designated trustees. The Act requires such funds to install a mechanism allowing a federal district court to appoint a neutral party to resolve any impasse; the Fund’s Agreement specifies that “[i]n the event of a deadlock,” the Trustees “may agree upon an impartial umpire to break such deadlock.” If they cannot agree with a reasonable time, they may petition the District Court for the Western District of Pennsylvania to appoint an impartial umpire. The Trustees deadlocked on a motion seeking to approve payment of compensation to eligible Trustees for attendance at Fund meetings and another seeking to clarify and confirm the eligibility requirements for Employer Trustees. In each case, one-half of the board petitioned the court to appoint an arbitrator to settle the dispute, and the opposing half sought to prevent the requested appointment. The court declined to send either conflict to arbitration. The Third Circuit remanded, finding that both disputes were within the purview of the parties’ agreement to arbitrate. View "Employer Trustees of Western Pennsylvania Teamsters v. Union Trustees of Western Pennsylvania Teamsters" on Justia Law

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Williams, an African-American woman, claimed that she was subjected to constant harassment by her supervisors at the Pennsylvania Human Relations Commission, faced a hostile work environment, and was ultimately constructively discharged from her position as a Human Relations Representative. After taking leave under the Family Medical Leave Act, she had not returned to work. She filed suit under Title VII of the Civil Rights Act, seeking damages for the loss of her job and the harm sustained to her physical and emotional health. She included claims against her former supervisors, claiming that they violated her rights under Title VII and the Americans with Disabilities Act (ADA) and were liable under 42 U.S.C. 1983. The district court granted summary judgment in favor of all defendants. The Third Circuit affirmed, finding that violations of Title VII and the ADA may not be brought through section 1983, given the comprehensive administrative scheme established by Title VII and the ADA. Those statutes require plaintiffs to comply with particular procedures and/or to exhaust particular administrative remedies prior to filing suit. In addition, Williams presented no triable issues of fact on her Title VII claims against the Commission. View "Williams v. Pennsylvania Human Relations Commission" on Justia Law

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New Vista Nursing and Rehabilitation contends that the licensed practical nurses (LPNs) employed at its nursing home could not unionize because they were “supervisors,” having the “authority” to “discipline other employees[] . . . or effectively to recommend such action,” 29 U.S.C. 152(11). Their duties included filling out forms that recommended discipline for certified nursing assistants (CNAs). The National Labor Relations Board held that New Vista’s refusal to bargain was unlawful because the nurses did not have the authority to effectively recommend discipline. The Third Circuit denied enforcement of the order and remanded, first noting the complicated procedural status of the case because the Board was not legally configured for a period while the matter was pending. The Board applied a four-part test "squarely at odds" with controlling Third Circuit precedent, NLRB v. Attleboro Associates, Ltd. Attleboro rejected the Board’s position that an employee does not have authority to effectively recommend discipline if the employee’s supervisors independently investigate the employee’s recommendation. In addition, the “number of instances” of supervision does not determine whether employees are supervisors. View "New Vista Nursing and Rehabilitation v. National Labor Relations Board" on Justia Law

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Moon performed at the Breathless Men’s Club in Rahway. She rented performance space in the Club and signed an Independent Dancer Rental Agreement, stating: Dancer understands and agrees that he/she is an independent contractor and not an employee of club. Dancer is renting the performance space for an agreed upon fee previously agreed to by Dancer and Club. … In a dispute between Dancer and Club under this Agreement, either may request to resolve the dispute by binding arbitration. THIS MEANS THAT NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL – DISCOVERY AND APPEAL RIGHTS ARE LIMITED IN ARBITRATION. ARBITRATION MUST BE ON AN INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR WE MAY JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS. Moon sued under the Fair Labor Standards Act, 29 U.S.C. 201; the New Jersey Wage Payment Law; and the state Wage and Hour Law. The district court denied a motion to dismiss and ordered limited discovery on the arbitration issue. After discovery, the court granted the Club summary judgment. The Third Circuit reversed. Moon’s claims do not arise out of the contract itself; the arbitration clause does not cover Moon’s statutory wage-and-hour claims. View "Moon v. Breathless Inc" on Justia Law

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PPL hired McNelis as a Nuclear Security Officer in 2009. McNelis had unrestricted access to PPL’s plant, carried a firearm, and was authorized to use deadly force. In 2012, McNelis experienced personal and mental health problems. McNelis was paranoid and had problems with alcohol and bath salts—a synthetic drug that affects the central nervous system. McNelis’s wife moved herself and the children out of the family home. Police received an anonymous 911 call that resulted in a lockdown at his children’s school. McNelis had a three-day stay in an inpatient treatment unit. Pursuant to NRC regulations, McNelis’s unrestricted access was “placed on hold” pending medical clearance. A third-party psychologist interviewed McNelis and performed testing required by PPL policy and NRC regulations and reported that McNelis was not fit for duty. PPL revoked McNelis’s unescorted access authorization and terminated his employment. After his appeal was denied, McNelis sued, claiming his termination violated the Americans with Disabilities Act. The district court held that McNelis was fired because he lacked a legally mandated job requirement: the unrestricted security access authorization that the Nuclear Regulatory Commission requires for armed guards. The Third Circuit affirmed. PPL followed NRC regulation procedures; “[w]hen Congress enacted the ADA, it recognized that federal safety rules would limit application of the ADA as a matter of law.” View "McNelis v. Pennsylvania Power & Light Co" on Justia Law

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When Eclipse, a jet aircraft manufacturer, declared bankruptcy in November 2008, it reached an agreement to sell the company to its largest shareholder, ETIRC, which would have allowed Eclipse to continue its operations. The sale required significant funding from VEB, a state-owned Russian Bank. The funding never materialized. For a month, Eclipse waited for the deal to go through with almost daily assurances that the funding was imminent. Delays were attributed to Prime Minister Putin needing “to think about it.” Eventually, Eclipse was forced to cease operations and notify its workers that a prior furlough had been converted into a layoff. Eclipse’s employees filed a class action complaint as an adversary proceeding in the Bankruptcy Court alleging that Eclipse’s failure to give them 60 days’ notice before the layoff violated the Worker Adjustment and Retraining Notification (WARN) Act, 29 U.S.C. 2101-2109, and asserting that Eclipse could invoke neither the Act’s “faltering company” exception nor its “unforeseeable business circumstances” exception. The Bankruptcy Court rejected the employees’ claims on summary judgment, holding that the “unforeseeable business circumstances” exception barred WARN Act liability. The district court and Third Circuit affirmed. Eclipse demonstrated that its closing was not probable until the day that it occurred. View "In re: AE Liquidation, Inc." on Justia Law