Justia Labor & Employment Law Opinion Summaries

Plaintiffs, a class of servers employed by Perry's, filed suit alleging that Perry's violated the Fair Labor Standards Act (FLSA), 29 U.S.C. 203(m), by charging its servers a 3.25% offset fee. When customers paid and tipped with a credit card, Perry’s retained 3.25% of the tip to offset credit card issuer fees and other costs it incurred in collecting and distributing the tips. Because Perry’s offset always exceeded the direct costs required to convert credit card tips to cash, as contemplated in section 203(m) and interpreted by the Sixth Circuit, the court held that Perry’s’ 3.25% offset violated section 203(m) of the FLSA, and therefore Perry’s must be divested of its statutory tip credit for the relevant time period. The court affirmed the district court’s holding of liability, its certification of a second class, and its denial of liquidated damages and a three-year extension of the statute of limitations. However, the court remanded for the district court to award plaintiffs attorney’s fees that it deems reasonable under section 216(b). View "Steele v. Leasing Enter., Ltd." on Justia Law

ABC entities filed suit bringing a facial challenge to enjoin enforcement of a final rule issued by the Board that modifies procedures relating to union representation elections. The challenged rule amended the procedures for determining whether a majority of employees wish to be represented by a labor organization for purposes of collective bargaining. The court affirmed the judgment because the rule changes to the pre-election hearing did not exceed the bounds of the Board's statutory authority under the National Labor Relations Act (NLRA), 29 U.S.C. 151-169. The court also concluded that the expanded disclosure regime is rationally connected to the transformative changes in communications technology, and the Board’s rule was not arbitrary and capricious; because the Board considered the potential burdens on speech and afforded the regional director discretion in setting an election date, the ABC entities’ challenge to the timing rule fails; and because the Board acted rationally and in furtherance of its congressional mandate in adopting the rule, the ABC entities’ challenge to the rule as a whole fails. The court reiterated the high burden faced by the ABC entities in this facial challenge, and held that the challenged provisions of the Board’s rule neither exceed the scope of its authority under the NLRA nor are they arbitrary and capricious. View "Assoc. Builders and Contractors v. NLRB" on Justia Law

The Board filed an unfair labor practices order against Macy's after the company refused to bargain with the Union. Macy's petitioned for review and the Board filed a cross-application for enforcement. The court concluded that the Board's unit determination was supported by substantial evidence and did not demonstrate a complete lack of separate interests. Although the unit composition argued for Macy's may have also been an appropriate bargaining unit, the court could not say that the one approved by the Board was clearly not appropriate based on the employees' community of interests. The court agreed with its sister circuits that in Specialty Healthcare and Rehabilitation Center of Mobile, the Board clarified - rather than overhauled - its unit-determination analysis. The court declined to overrule Specialty Healthcare per Macy's request. Therefore, the court held that the Board did not abuse its discretion when it determined that the other selling employees do not share an overwhelming community of interest with the petitioned-for employees. Accordingly, the court granted the cross-application for enforcement and denied Macy's petition. View "Macy's, Inc. v. NLRB" on Justia Law

Wal-Mart petitions for review of the decision of the Commission finding that the company failed to comply with 29 C.F.R. 1910.132(d)(1), which requires the company to perform a hazard assessment of its distribution center. The court concluded that the regulation, the preamble, and the non-mandatory appendix fail to resolve the ambiguity as to whether Wal-Mart may use its Searcy hazard assessment as the hazard assessment for the allegedly identical New Braunfels location. In such circumstances, the court gives substantial deference to an agency’s interpretation of its own regulation. While section 1910.132(d)(1) may not require an employer to conduct a full-fledged hazard assessment of all identical workplaces, it is reasonable to interpret section 1910.132(d)(1) to require an employer to confirm that workplaces are indeed identical before a hazard assessment for one workplace can qualify as the hazard assessment for another location. Therefore, the court agreed with the Commission’s conclusion that the Secretary’s interpretation of section 1910.132(d)(1) is reasonable. However, because Wal-Mart lacked adequate notice of that interpretation, the court vacated the citation and the related penalty. View "Wal-Mart Distrib. Center v. OSHC" on Justia Law

Hallmark, a government contractor providing vehicle maintenance services at two United States Air Force bases, petitioned for review of the Board's order requiring the company to make severance and accrued vacation payments to its former union employees. The court concluded that the Board did not err in asserting jurisdiction over the unions' claims under the National Labor Relations Act (NLRA), 29 U.S.C. 158(a)(1),(a)(5), because Hallmark’s statements regarding its willingness to allow an arbitrator to address the merits of the unions’ charges have been inconsistent, if not wholly unclear; the Board did not err in finding that Hallmark lacked a sound arguable basis for denying union employees’ severance pay, that denying payment amounted to a unilateral modification of the collective bargaining agreements (CBAs), and thus constituted an unfair labor practice under the NLRA; and the Board similarly did not err in finding that Hallmark violated the NLRA when it refused to include the lead-pay premium in TWU employees’ accrued vacation pay. On the other hand, the court held that the Board erred in finding that Hallmark lacked a sound arguable basis under the CBAs for not including the lead-pay premium in TWU employees’ severance pay; and the Board further erred in finding that Hallmark lacked a sound arguable basis for withholding carry-over vacation pay for TWU employees. Accordingly, the court granted the petition in part, and denied it in part. The court granted the Board's cross-application for enforcement in part and denied it in part. View "Hallmark-Phoenix 3, LLC v. NLRB" on Justia Law

Petitioners appealed the Board's final order granting Claimant benefits under the Longshore Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. 901–950. The court concluded that more than a scintilla of evidence supports the ALJ’s determination that Claimant lacks credibility and that Claimant thus could not prima facie prove that the personnel-basket incident could have aggravated his preexisting condition to the extent he claims. Accordingly, the court reversed the Board's judgment awarding benefits to Claimant, except as to the Board's conclusion that he was entitled to benefits for his missing tooth. The court reinstated the ALJ's 2013 order. View "BIS Salamis, Inc. v. DOWCP" on Justia Law

Plaintiff, a high school JROTC instructor, filed suit against the School Board and two school employees, alleging claims of retaliation under the False Claims Act, 31 U.S.C. 3729-3733; 42 U.S.C. 1983; and state law. The court concluded that the district court did not err in dismissing plaintiff's section 1983 and state law claims where plaintiff was not prejudiced because the suit was still in its infancy when defendants raised the time-bar defense. In this case, plaintiff had notice and opportunity to respond to the motion to dismiss and he does not challenge the conclusion that his claims are time-barred. In regard to the FCA claim, plaintiff's primary theory of liability against the School Board is that the School Board's agents opposed plaintiff's protected actives and they used pretext to convince the Marine Corps to remove plaintiff from the school. Plaintiff also argued that the agents retaliated against him directly for engaging in protected activity, and that the School Board is liable for their conduct. The court concluded that plaintiff has pled enough facts to state a claim under this latter theory. Accordingly, the court reversed and remanded as to the FCA claim. The court otherwise affirmed the judgment. View "Bias v. Tangipahoa Parish Sch. Bd." on Justia Law

Plaintiff filed suit against his former employer, Watch House, alleging that he was discharged in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and Chapter 21 of the Texas Labor Code. The district court granted Watch House's motion to compel arbitration and dismissed plaintiff's suit without prejudice. The court concluded that the three-part test in Lizalde v. Vista Quality Markets remains an accurate statement of Texas law and applied Lizalde to the language of Watch House's Arbitration Plan at issue. The court agreed with plaintiff that the Plan is illusory because it fails to include an In re Halliburton-type savings clause that requires advance notice of termination. In this case, the Plan provides that Watch House may make unilateral changes to the Plan, purportedly including termination, and that such a change “shall be immediately effective upon notice to” employees. Watch House’s retention of this unilateral power to terminate the Plan without advance notice renders the Plan illusory under a plain reading of Lizalde, which is supported by recent decisions from Texas intermediate courts. Consequently, plaintiff is not bound by the Plan and Watch House may not compel arbitration. The court reversed and remanded for further proceedings. View "Nelson v. Watch House Int'l, LLC" on Justia Law

The Board alleged that Dixie Electric committed an unfair labor practice, in violation of Section 8(a)(5) and (d) of the National Labor Relations Act (NLRA), 29 U.S.C. 158(a)(5), (d), when it reclassified two categories of employees as supervisors, which caused those employees to be excluded from the bargaining unit covered by a collective bargaining agreement. The court held that an employer who unilaterally removes a job title from a bargaining unit mid-contract violates the NLRA. In this case, it is undisputed that Dixie Electric unilaterally modified the scope of the bargaining unit and therefore violated the NLRA. Further, the court concluded that the Board’s conclusion that the unit clarification petition was untimely is reasonable where Dixie Electric filed its petition more than four months after execution of the new contract. Accordingly, the court denied Dixie Electric's petition and enforced the Board's order. View "Dixie Electric Membership Corp. v. NLRB" on Justia Law

Plaintiff, a former police officer, filed suit after he was terminated without notice or a hearing, alleging that the councilmembers’ actions violated state law and denied him constitutional due process. The district court dismissed the suit. The court concluded, however, that the district court erred in dismissing plaintiff's claims for lack of jurisdiction because he stated a claim for relief under a federal statute and the claim was not frivolous. The court concluded that the district court did not err in dismissing plaintiff's 42 U.S.C. 1983 claim because Texas Government Code Section 614.023 is analogous to the charter provision in Henderson v. Sotelo. Both laws require some action to be taken before termination of employment can occur, but no property right is created by that requirement. The court further concluded that plaintiff's claims against the City and the mayor in his individual and official capacity were properly dismissed. Finally, the court reversed the district court's denial of leave to amend, remanding for an explanation of the district court's exercise of discretion. The court affirmed in part, reversed in part, and remanded. View "Stem v. Gomez" on Justia Law