Articles Posted in US Court of Appeals for the Sixth Circuit

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Erickson is the only unionized crane rental company in western Michigan. In 2015, the Local insisted that only members of the Local, not the company’s other unions, perform crane-operator work. The Local threatened to stop referring union members for regular temporary-labor needs and operators began seeking the Local’s help with payroll mix-ups rather than resolving them with Erickson. When the company told employees to “quit talking to Brandon because he’s going to get you in trouble,” the Local filed its first-ever grievance and unfair labor practice charge against Erickson, which eventually agreed to allow workers to seek the Local’s help. In 2016 Erickson discovered that the Local was approaching customers and encouraging them to hire through the Union’s referral process rather than contracting with the company. Erickson fired six members of the Local, 30% of the company’s operators. Erickson told the fired workers about the lack of work for small cranes; the layoffs “could be reversed,” if the workers would “get the Union to back off.” Erickson put six small cranes on the market. The Local filed unfair labor practice charges under 29 U.S.C. 158(a)(1); 158(a)(3). The Sixth Circuit affirmed an NLRB decision in favor of the Local. Even if Erickson exited the small-crane market for unrelated reasons, the need to terminate the operators did not necessarily follow. Erickson had a dramatic increase in temporary hires immediately after the discharges, often for tasks the fired workers performed. The company’s justification was pretextual. View "Erickson Trucking Service, Inc. v. National Labor Relations Board" on Justia Law

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The union accused the employer, which operates coal-fired power generation facilities in Ohio and Pennsylvania, of implementing terms and conditions of employment that were inconsistent with the employer’s final impasse offer during collective bargaining negotiations and of unilaterally subcontracting out periodic maintenance work historically performed by union employees. The National Labor Relations Board affirmed an administrative law judge’s findings in favor of the union on both charges. The Sixth Circuit affirmed that the employer violated Section 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. 158 (a)(5), (a)(1), when, after impasse, it selectively implemented certain pre-impasse bargaining proposals that were inextricably linked to other proposals not imposed. The court reversed with respect to subcontracting the turbine/generator outage work without first bargaining with the union. The decision to subcontract a planned project involving the shutdown and maintenance of one of its turbine-generator units is properly characterized as a business management decision, driven by the employer's responsibility to keep its generating units in working order, while continuously offering full service, or face penalties. The court reversed the Board’s order requiring the employer to supply requested information regarding subcontracting. View "FirstEnergy Generation, LLC v. National Labor Relations Board" on Justia Law

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Hickle began working for AMC in 2004, while in high school. In 2006, he was promoted to Operations Coordinator. In 2008, he joined the Ohio Army National Guard. Before leaving for training, Hickle interviewed for a management position with Kalman, stating that he was going to have to leave for military training for approximately six months; Kalman ended the interview immediately. The person who got the promotion later told Hickle: “Thanks for joining the military. I just got promoted.” AMC promoted Hickle to management when he returned from training; in 2013 Hickle was again promoted. In the interim, Hickle continued his military service, including serving for over a year in Afghanistan. AMC never prevented Hickle from fulfilling his military obligations or denied him time off, but Senior Manager Adler repeatedly expressed disapproval. During meeting with Kalman and Adler, Hickle provided Kalman with a pamphlet on the Uniformed Services Employment and Reemployment Rights Act (USERRA). Adler continued to insinuate that Hickle could or should be fired for taking time off for military duty. After an incident involving allegations of stealing food from the AMC kitchen, there was an investigation, performed by a Compliance Manager. Hickle was suspended and was ultimately fired for “unprofessional behavior.” The district court rejected Hickle’s USERRA suit. The Sixth Circuit reversed. Hickle gathered evidence during discovery that would allow a reasonable jury to find that military service was a motivating factor in AMC’s termination decision. View "Hickle v. American Multi-Cinema, Inc." on Justia Law

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After Booth started working at a Tennessee Nissan factory, he injured his neck and sought medical treatment. Booth’s physician recommended several work restrictions, including that he not reach above his head or flex his neck too much. Booth. continued to work on the assembly line for about a decade without incident. In 2015, Booth requested a transfer to another position in the factory, which Nissan denied because that position’s duties conflicted with Booth’s work restrictions. Booth claimed that Nissan’s denial was disability discrimination that violated the Americans with Disabilities Act (ADA), 42 U.S.C. 12101. Nissan then announced plans to restructure the assembly line. Booth alleged that two additional jobs Nissan assigned to him as part of the restructuring would have violated his work restrictions, When he informed Nissan about this conflict, Nissan told him to see a physician. Booth’s physician modified the restrictions, clearing him to work the new jobs. Although Booth remains a Nissan employee, he claimed that Nissan failed to accommodate him—a separate ADA violation—by pressuring him to remove his work restrictions. The Sixth Circuit affirmed summary judgment in favor of Nissan. To sue under the ADA, the plaintiff must be disabled; just because a plaintiff has work restrictions does not mean that he is disabled. Booth has not advanced evidence that he is disabled. View "Booth v. Nissan North America, Inc." on Justia Law

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Plaintiffs, battalion chiefs in Battle Creek’s fire department, were responsible for many administrative tasks. While they did not have direct authority to make hiring and firing decisions, they conducted performance evaluations and approved vacation requests. Plaintiffs’ suggestions and recommendations as to hiring, firing, advancement, or promotion of other employees were given "particular weight.” Plaintiffs were required to periodically serve on “standby” duty and be “on call” from 5:00 pm until 8:00 am the following morning for seven days. Plaintiffs received 1.5 hours of pay for each day of standby duty, plus overtime pay for hours worked if they were called back to active duty while on standby. The individual on standby duty was required to monitor a pager and a radio, answer phone calls, and help handle problems. Plaintiffs were occasionally required to respond to the scene of a fire while on standby duty. Plaintiffs filed a complaint alleging violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. 201, by failing to pay overtime. The district court ruled and the Sixth Circuit affirmed that Plaintiffs were exempt from the FLSA’s overtime pay requirement under the executive exemption. Ample evidence supported a finding that Plaintiffs’ primary duty was managerial in nature. View "Holt v. Battle Creek" on Justia Law

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A class of 28,177 exotic dancers alleged that dance clubs violated the Fair Labor Standards Act and state wage-and-hour laws by “intentionally misclassif[ying] class members as independent contractors, refus[ing] to pay minimum wage, unlawfully requir[ing] employees to split gratuities, and unlawfully deduct[ing] employee wages through rents, fines, and penalties.” The Agreement required that every club provide its dancers with an assessment to determine whether they should be classified as employees or an Independent Professional Entertainers and limited the control that the clubs may exercise over the Independent Entertainers. The Agreement also addresses tip-pooling, commissions, reimbursement for license and permit fees required to perform at the club, and provision of logo costumes; it divides a total award of $6.55 million into a Net Cash Payment Settlement Fund, Secondary Pool Remuneration, and attorneys’ fees. The district court approved a settlement over the objections of four class members. The Sixth Circuit affirmed, considering: the “high risk of continued litigation and the uncertain likelihood of success on the merits” and that the Agreement “offers value to the class in the form of cash, rent-credit or dance-fee payments, and long-term structural changes to Defendants’ business practices, all of which directly benefit class members.” The court rejected an argument that the settlement violated the procedural requirements of Federal Rule of Civil Procedure 23 because the class release was impermissibly broad and the class notice failed to adequately apprise the class members of their rights. View "Doe v. Deja Vu Consulting, Inc." on Justia Law

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Mager alleged that he was seriously and permanently injured when he slipped on oil while he was working as a trackman at WCL’s Marquette, Michigan railway yard. Mager filed suit under the Federal Employer’s Liability Act, 45 U.S.C. 51. He was deposed and was sent notice of an independent medical examination (IME). Plaintiff’s counsel, Foley, objected because the examiner’s Appleton Wisconsin office was a substantial drive from Mager’s home in Michigan's Upper Peninsula. Defense counsel sought an order compelling the IME (FRCP 35(a)) and to delay third-party mediation. The parties agreed that Mager would submit to the IME, that WCL would pay his mileage, and that a settlement conference would be scheduled with the court in lieu of mediation. After Mager objected to completing a medical questionnaire, a Rule 35 Order was entered directing Mager to “appear at the IME ….The interview and exam shall not exceed three (3) hours.” Mager and Foley appeared for the IME. Foley recorded the proceedings without prior notice to defense counsel. Mager repeatedly declined to answer relevant questions about his condition, medications, and how the injury occurred, referring the doctor to his deposition. Mager did not allow Mager’s driver’s license to be copied. Mager submitted to a physical examination. The Sixth Circuit affirmed the dismissal of Mager’s complaint with prejudice, FRCP 37(b)(2)(A)(v), as a sanction primarily for his and Foley’s conduct at the IME, which was willful, in bad faith, and prejudicial to the defense. No other sanctions would reflect the misconduct's seriousness. View "Mager v. Wisconsin Central Ltd." on Justia Law

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Wyndham has four Tennessee resorts, where front-line sales employees sell ownership interests (timeshares) to people who do not own Wyndham timeshares. In-house sales employees sell upgraded timeshares to existing owners. Discovery sales employees sell non-ownership trials. Wyndham’s sales people receive a minimum-wage draw based on the hours they record each week, which is deducted from their commissions. In 2009, Wyndham began paying overtime. Plaintiffs filed suit (Fair Labor Standards Act, 29 U.S.C. 207(a)(1)), alleging that Wyndham required sales employees to underreport their hours or altered their timesheets to avoid paying overtime. The district court certified 156 employees from all three positions as a collective action. After a bench trial, the court found that, on average, each employee had worked 52 hours per week during the recovery period and awarded $2,512,962.91 in overtime pay and an equal amount in liquidated damages. The Sixth Circuit affirmed in part. The court properly certified the collective action as to in-house and front-line salespeople. The discovery salespeople, however, had a different title and sold a different product. A common policy cannot overcome the factual differences between the groups (what they sold and when they started work), which goes to the heart of the claim (total hours worked each week). The evidence, “representative, direct, circumstantial, in-person, by deposition, or otherwise,” supports a finding that Wyndham violated the Act by failing to pay overtime. The court remanded the issue of damages. View "Pierce v. Wyndham Vacation Resorts, Inc." on Justia Law

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Plaintiff was hired as an Assistant Principal at Grosse Pointe South High School in 2012. In 2014, Hamka became principal of GPSHS. Plaintiff had difficulties with changes instituted by Hamka and complained about Hamka’s comments and conduct toward her. After a series of incidents, Plaintiff received a “minimally effective” rating for the 2014–2015 school year in her personnel file, but an “effective” rating was sent to the State of Michigan as a “placeholder” pending Plaintiff’s job search. Plaintiff received only a one-year contract instead of a two-year rolling contract. She became ineligible for any merit pay or step increases and was placed on an Individualized Development Plan (IDP). In 2015, the district’s superintendent transferred Plaintiff to Parcells Middle School because of her complaint against Hamka and the other incidents. Plaintiff took Family and Medical Leave Act (FMLA) leave from November 2015 to March 2016 due to stress but nonetheless received an “effective” rating and was given a two-year contract and taken off the IDP. Plaintiff filed an EEOC charge in December 2015 alleging gender discrimination and retaliation for her earlier complaint of gender discrimination and harassment, then filed suit under Title VII of the Civil Rights Act, 42 U.S.C. 2000e, the FMLA, 29 U.S.C. 2601, and state law. The district court granted the school district summary judgment. The Sixth Circuit reversed with respect to the gender discrimination and retaliation claims but affirmed with regard to the FMLA retaliation claim. View "Redlin v. Grosse Pointe Public School System" on Justia Law

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Jones, a Michigan citizen, began working in Equatorial Guinea around 2007. In 2011, he started IPX to provide telecommunication services in Equatorial Guinea. IPX is incorporated and has its principal place of business in Equatorial Guinea. Jones was a shareholder, director, and employee, working as a Director-General under a contract, signed annually in Equatorial Guinea. He lived and worked there during the contract’s term. IPX decided in 2015 to open a U.S. subsidiary and sent Jones to Michigan. His work there was supposed to take six months. Jones would then return to Equatorial Guinea. After Jones arrived in Michigan, IPX learned that he may have stolen money and neglected important business relationships and suspended Jones. Jones claims that the suspension was a pretext to divest him of his stock. He sued for breach of contract in the Eastern District of Michigan. The court dismissed the complaint under forum non conveniens. The Sixth Circuit affirmed. Equatorial Guinea is an available and adequate forum; IXP is subject to process there. Most of the witnesses and key documents are in Equatorial Guinea; witnesses can be compelled to testify there. Equatorial Guinean law governs under the underlying employment contract’s choice-of-law provision. There is strong evidence that Jones is not at home in the United States, negating the assumption that a U.S. court is most convenient for him. View "Jones v. IPX International Equatorial Guinea S.A." on Justia Law