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Several carpenters, including one single-member LLC, an installer of cement siding, and a painter contended they were employees of Bourbeau Custom Homes, Inc. for the purposes of Vermont’s unemployment compensation system. Bourbeau challenged that classification, contending that it was not liable for unemployment taxes on monies paid to a carpenter operating as a single-member LLC because an LLC was not an “individual” under the unemployment tax statute and therefore not subject to the ABC test established by 21 V.S.A. 1301(6)(B). Second, Bourbeau argued the Employment Security Board erred in applying the ABC test with respect to all of the workers whose remuneration is the subject of this appeal. The Vermont Supreme Court agreed with Bourbeau on the first point and held that an LLC was not an “individual” for the purposes of assessing unemployment taxes. However, the Court affirmed the Board’s determination that the remaining four individuals were employees for purposes of Vermont’s unemployment compensation system. View "In re Bourbeau Custom Homes, Inc." on Justia Law

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Plaintiff filed suit against her employer, the Office of Attorney General for the State of Louisiana (DOJ), alleging failure to accommodate, harassment, and retaliation in violation of the Americans with Disabilities Act (ADA), and Louisiana Employment Discrimination Law (LEDL). The Fifth Circuit affirmed the district court's grant of summary judgment in the DOJ's favor, holding that there was no genuine issue of material fact as to whether plaintiff has established a prima facie case on any of her disability-based claims. In regard to the failure to accommodate claim, plaintiff failed to demonstrate that she was a qualified individual, i.e., that she can perform the essential functions of her job unaided or with the assistance of a reasonable accommodation; in regard to the disability-based harassment claim, the difficulties plaintiff managed while attempting to manage her serious illness and employment were not sufficient to create a hostile work environment; and the record did not support that any of the DOJ's actions were taken in retaliation for plaintiff's protected activity. View "Credeur v. Louisiana" on Justia Law

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The City of Houston, Alaska fired its police captain shortly before disbanding its police department. The captain claimed he was terminated in bad faith in order to stop ongoing investigations into city leaders. He challenged: (1) the superior court’s refusal to allow his claim under the Alaska Whistleblower Act; (2) a jury instruction stating that termination for personality conflicts did not constitute bad faith; and (3) an award of attorney’s fees and costs. The Alaska Supreme Court concluded that the court’s refusal to allow his claim under the Whistleblower Act, its decision to give the personality conflict instruction, and its award of attorney’s fees and costs were not erroneous and therefore affirmed. View "McNally v. Thompson" on Justia Law

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Jewels by Park Lane, Inc. ("JBPL"), and Kathy Cassidy, the national director for JBPL, sought a writ of mandamus compelling the Circuit Court to vacate its order denying their motion to dismiss an action against them on the ground of improper venue arising out of a forum-selection clause, and to enter an order dismissing the case. JBPL was a multilevel marketing company that sold jewelry through independent contractors who host parties offering JBPL's jewelry line for sale. Jennifer Miller became a “director” for LBPL. Miller sued JBPL and Cassidy, alleging JBPL promised to employ her for a 12-month period and to pay her $4,000 a month for that period. Miller set out claims alleging account stated, open account, breach of contract, and fraud. Miller sought compensatory damages, punitive damages, and attorney fees. The employment agreement contained a “forum selection clause” in which any disputes between the parties would be settled in accordance with the laws of Illinois. Miller admitted that the director agreement contained a forum selection clause but argued that she would not have entered into the agreement but for the fraud perpetuated by JBPL and Cassidy. The Alabama Supreme Court concluded JBPL and Cassidy have shown a clear legal right to have the action against them dismissed on the basis that venue in the Tallapoosa Circuit Court was, by application of the outbound forum-selection clause, improper. The trial court exceeded its discretion in denying their motion to dismiss Miller's action. View "Ex parte Jewels by Park Lane, Inc." on Justia Law

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Under the Civil Service Reform Act, the Merit Systems Protection Board (MSPB) has the power to review certain personnel actions against federal employees. If an employee asserts rights under the CSRA only, MSPB decisions are subject to judicial review exclusively in the Federal Circuit, 5 U.S.C. 7703(b)(1). If the employee invokes only federal antidiscrimination law, the proper forum is federal district court. An employee who complains of a serious adverse employment action and attributes the action, in whole or in part, to bias based on race, gender, age, or disability brings a “mixed case.” When the MSPB dismisses a mixed case on the merits or on procedural grounds, review authority lies in district court, not the Federal Circuit. Perry received notice that he would be terminated from his Census Bureau employment for spotty attendance. Perry agreed to early retirement. The settlement required Perry to dismiss discrimination claims he had filed separately with the EEOC. After retiring, Perry appealed to the MSPB, alleging discrimination based on race, age, and disability, and retaliation for his discrimination complaints. He claimed the settlement had been coerced. Presuming Perry’s retirement to be voluntary, an ALJ dismissed his case for lack of jurisdiction. The MSPB affirmed, stating that Perry could seek review in the Federal Circuit. Perry instead sought review in the D.C. Circuit, which transferred the case to the Federal Circuit. The Supreme Court reversed. The proper review forum when the MSPB dismisses a mixed case on jurisdictional grounds is district court. A nonfrivolous claim that an agency action appealable to the MSPB violates an antidiscrimination statute listed in section 7702(a)(1) suffices to establish district court jurisdiction. Had Congress wanted to bifurcate judicial review, sending merits and procedural decisions to district court and jurisdictional dismissals to the Federal Circuit, it could have said so. View "Perry v. Merit Systems Protection Board" on Justia Law

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On September 26, 2014, plaintiff filed suit against the school district, alleging discrimination, hostile work environment, and retaliation claims (Welsh I). On December 16, 2014, the school district filed a plea to the jurisdiction in Welsh I, wherein the school district maintained, inter alia, that plaintiff's claims were barred by the statute of limitations because she filed her lawsuit more than two years after she filed her charge. The state district court granted the plea and dismissed the claims in Welsh I. On May 12, 2005, plaintiff filed this case against the school district (Welsh II), alleging claims for discrimination under Title VII and the Age Discrimination in Employment Act (ADEA), as well as retaliation claims. The Fifth Circuit held that the only claims in Welsh II that were barred under res judicata were those that were mature at the time that plaintiff filed her petition in Welsh I. The court vacated and remanded because the parties have not brief this issue under this framework and because at least some facts supporting plaintiff's alleged claims clearly were not extant at the time Welsh I was filed such that a claim could not have been mature based upon those facts. View "Welsh v. Fort Bend Independent School District" on Justia Law

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In a challenge to a Workers' Compensation Appeals Board order, the Court of Appeal held that a writ petition was timely filed. The court also held that despite significant changes in the law governing workers' compensation in 2004, disability resulting from medical treatment for which the employer is responsible is not subject to apportionment. In this case, petitioner contended that because her permanent total disability was the result of a failed surgery for carpal tunnel syndrome, a condition she contracted primarily due to the clerical work she performed for Costco for more than 25 years, apportionment was not appropriate. The court annuled the Board's order and remanded for an increase in petitioner's disability award. View "Hikida v. Workers' Compensation Appeals Board" on Justia Law

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Between 2011 and 2013, a labor union held demonstrations at Walmart stores throughout Maryland, protesting Walmart’s employment conditions. Consequently, Walmart sued the union for trespass and nuisance and sought an injunction against the union. The circuit court granted summary judgment in favor of Walmart and issued a permanent injunction against UFCW. The court of special appeals affirmed. The Court of Appeals affirmed, holding (1) Walmart’s claims for trespass and nuisance were not preempted by the National Labor Relations Act, and therefore, the circuit court properly denied the union’s motion to dismiss; and (2) the circuit court properly ruled that this case did not involve a labor dispute within the meaning of Maryland’s Anti-Injunction Act. View "United Food & Commercial Workers International Union v. Wal-Mart Stores, Inc." on Justia Law

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An employer's attorney can be held liable for retaliating against his client's employee because the employee sued his client for violations of workplace law. In this case, plaintiff may proceed with his retaliation action against the attorney under sections 215(a)(3) and 216(b) of the Fair Labor Standards Act (FLSA), 29 U.S.C. 215(a)(3) and 216(b), because the complaint manifestly fell within the purview, purpose, and plain language of the FLSA. The court explained that the wage and hours provisions of the FLSA focus on de facto employers, but the anti-retaliation provision refers to "any person" who retaliates. View "Arias v. Raimondo" on Justia Law

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Workers in Waupaca foundries alleged violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. 201, by not treating the time that workers spend changing clothes and showering on-site after a shift to be compensable “work” time. They alleged that they end their shifts covered in a layer of “foundry dust,” which can irritate the skin and cause lung disease if inhaled. FLSA authorizes collective actions by employees on behalf of “similarly situated” employees. Unlike class actions under FRCP 23, collective actions under FLSA require would-be members to opt in (voluntarily join). The district judge ruled that he would “conditionally certify” the class since the plaintiffs showed a “reasonable basis” for believing that all the class members were similarly situated. After discovery, the judge would determine whether plaintiffs who had opted in were actually similarly situated. After several hundred current and former employees from three states opted in, Waupaca moved to decertify the class. The plaintiffs, deciding to proceed with only Waupaca’s Wisconsin employees, moved to certify a Rule 23 class just for Wisconsin state-law claims, and did not oppose the decertification of Indiana and Tennessee employees. The Seventh Circuit affirmed denial of Waupaca’s request to decertify the entire FSLA class; division of the FLSA class into three subclasses and their transfer to district courts in their respective states; and Rule 23 ceritfication of the Wisconsin claims. View "DeKeyser v. Thyssenkrupp Waupaca, Inc." on Justia Law