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September 28, 2017

Selected reports posted in Employment Law News by WK Workday


Selected reports posted in Employment Law News by WK Workday 
Source: Wolters Kulwer

Selected reports posted by WK Workday during the week ending September, 22, 2017

Click on text highlighted in color to access the full report 

Kraft retirees had no vested right to health care benefits beyond termination of CBAs
Posted: 21 Sep 2017 12:09 PM PDT

In a number of recent court decisions, it has consistently been determined that collective bargaining agreements do not provide a source for lifetime medical benefits for retirees and their surviving spouses and beneficiaries if there is not explicit contractual language stating that such benefits survive expiration of the agreement. However, in a recent decision, Gruss v. Kraft Heinz Foods Co., Inc., Kraft retirees sought to establish that the company violated ERISA when it terminated retiree health care benefits for former hourly workers.


Posted: 21 Sep 2017 06:36 AM PDT

Evidence that an employer changed the criteria for a position midway through the hiring process, relied on subjective justifications for selecting white candidates over an African-American applicant, and provided a shifting explanation for the selection decision supported an inference of pretext sufficient to deny summary judgment against the applicant’s Title VII race discrimination claim, a federal court in the District of Columbia ruled. His retaliation claim, which was based on an anonymous complaint he made four years earlier about what he viewed as a racist video, failed however (Casselle v. Chao, September 15, 2017, Boasberg, J.).


Posted: 20 Sep 2017 07:03 AM PDT

An employee fired shortly after telling his supervisor he had PTSD could not establish pretext for disability discrimination by pointing to, among other things, his recent positive performance evaluations or a relatively minor misstatement in the employer’s EEOC position statement. Nor did the fact that the decisionmakers questioned the veracity of his PTSD claim show that the stated reason for discharging him—creating a hostile and intimidating work environment for his subordinates—was pretextual, the Seventh Circuit ruled, affirming summary judgment against his ADA and Rehab Act claims (Monroe v. Indiana Department of Transportation, September 18, 2017, Williams, A.).

Posted: 20 Sep 2017 06:58 AM PDT

Reversing summary judgment to a county employer on only one of several FLSA claims for unpaid pre- and post-shift work, the Tenth Circuit found that a 911 dispatcher presented sufficient evidence for a jury to find that the county had to compensate her for the undisputedly integral and indispensable activity of being briefed by the outgoing dispatcher, which according to written policy, she was required to be at work five minutes before her shift began to receive. In an unpublished two-judge decision (now-Justice Neil Gorsuch had been on the panel for oral argument, but the remaining two panel judges were in agreement and so could act as a quorum to resolve the appeal), the court found this pre-shift activity was both ascertainable—five minutes per shift, per policy—and a “fixed or regular working time,” and a “practically ascertainable period of time [s]he is regularly required to spend on duties” so that it could not be disregarded as de minimis (Jimenez v. Board of County Commissioners of Hidalgo County, September14, 2017, per curiam).


Posted: 19 Sep 2017 07:11 AM PDT

Even assuming that a city manager had notified the city council that she was going on FMLA leave when she told them she was having foot surgery and would be able to work from home while recovering, her employer could fire her without unlawfully interfering with the FMLA as long as the reason for her termination was not because she was on leave. This it did, said the Sixth Circuit in affirming summary judgment for the city, because the employer demonstrated a legitimate reason for terminating her—it cited her role in “causing political strife in the community.” Moreover, it was questionable that she had provided FMLA notice since there was evidence she refused to take and complete the city’s FMLA forms, and it was suggested that she was only going to take a few days off and work from home. She also had no evidence of pretext (Mullendore v. City of Belding, released August 23, 2017, redesignated as published September 15, 2017, Batchelder, A.).

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com