Arbitration award addressing a related but different issue does not revive an otherwise untimely cause of action

Arbitration award addressing a related but different issue does not revive an otherwise untimely cause of action

Stembridge v New York City Dept. of Education, 2011 NY Slip Op 07519, Appellate Division, First Department

Supreme Court dismissed Everett Stembridge’s petition alleging unlawful discrimination and wrongful termination as untimely, finding that Stembridge’s cause of action had accrued on August 15, 2006, when he was terminated from an Aspiring Principals program as he had not commenced this action until August 2009.  

Stembridge had argued that as a result of his prevailing in an arbitration held in 2009, which found that the New York City Department of Education could not recoup monies it had inadvertently paid to him following his termination from the program in August 2006.

The Appellate Division characterized this argument as “misplaced” as the 2009 arbitration did not create a new accrual date for the action alleging unlawful discrimination and, or, unlawful termination.

The court explained that the 2009 grievance “… did not deal with issues of either termination from the program or defendant's alleged discrimination, but only with whether there was a contractual basis for defendant to recoup the alleged overpayment.”

Accordingly, Stembridge could not rely on the 2009 arbitration determination for the purposes of claiming the present action, initiated in 2009, challenging his termination from to Aspiring Principals program in 2006 was timely filed nor that his ability to do so was revived by the Department’s seeking to recoup the monies it claimed that it had paid to him in error.

Seniority for the purposes of layoff set out in the Civil Service Law and the Education Law trump those set out in a collective bargaining agreement

Seniority for the purposes of layoff set out in the Civil Service Law and the Education Law trump those set out in a collective bargaining agreement

Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, 2011 NY Slip Op 07431, Appellate Division, Second Department

In 1999 the New York City Transit Authority (“NYCTA”), its subsidiary, the Manhattan and Bronx Surface Transit Operating Authority (“MABSTOA”) and the Transport Workers Union of America, Local 100 (“TWU”), entered into a collective bargaining agreement that, in pertinent part, provided for “the commingling of personnel, including bus operators,” between NYCTA and MADSTO for the purposes of selecting job assignments within both entities. TWU created a consolidated “seniority list” for bus operators it represented working for NYCTA and MABSOTA.

When TWU was advised that due to a budget shortfall, staff reductions were required that would affect bus operators employed by NYCTA and MADSTO and that at-risk NYCTA bus operators, as civil service employees, would be laid off in civil service seniority order, and at-risk MABSTOA bus operators, who were not civil service employees would be laid off in order of seniority in title, as provided for in the CBA, TWU filed a contract interpretation grievance on behalf of bus operators in the units it represented alleging that the announced method for laying off bus operators violated the surface consolidation agreement and as a remedy, asked for a determination that the bus operators for each be laid off pursuant to the consolidated seniority list used for picking job assignments.

Ultimately NYCTA initiated an Article 75 proceeding to permanently stay the arbitration on the ground that the relief sought was prohibited by the statutory requirements set out in the Civil Service Law for conducting layoffs of employees in the classified service. The Supreme Court granted the petition and permanently stayed arbitration of the grievance. The Appellate Division affirmed the lower court’s ruling.

The Appellate Division explained that “In the public sector context, determining whether a grievance is arbitrable requires a court to first determine whether ‘there is any statutory, constitutional or public policy prohibition against arbitration of the grievance'" and if there is no prohibition against arbitration, then the court must determine "whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement."

NYCTA contended that the subject matter of the grievance was prohibited by law or public policy. In that regard, said the Appellate Division, a dispute is not arbitrable "if a court can conclude without engaging in any extended fact-finding or legal analysis' that a law prohibit[s], in an absolute sense, [the] particular matters [to be] decided' by arbitration."

The Appellate Division concluded that “assuming that the surface consolidation agreement affects how [NYCTA is] to conduct layoffs, the particular matter to be decided is prohibited, in an absolute sense, by Civil Service Law §80(1), which provides the sole manner by which an employer may lay off civil service employees in [the] competitive class,” citing Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d at 521).

Accordingly, layoffs within the title of bus operator in the NYCTA can only be made in inverse order of civil service seniority consistent with the mandates of Civil Service Law §80(1) and not by any other method such as the use of the consolidated seniority list. The Appellate Division concluded that "an arbitrator could not fashion a different remedy for this particular grievance that would not violate statutory requirements or public policy.”

This element – seniority for the purpose layoff – cannot be diminished or impaired by the terms of collective bargaining agreement as demonstrated by the Appellate Division’s decision in City of Plattsburgh v Local 788, 108 AD2d 1045.*

In the Plattsburgh case the issue concerned the application of a Taylor Law contract provision dealing with seniority in a layoff situation.

The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date used to determine an individual's service for seniority purposes for layoff under State law, i.e., the individual's date of initial permanent appointment in public service.

For example, assume Employee A was provisionally appointed on January 1, and Employee B was provisionally appointed February 1, of the same year. Employee B, however, was permanently appointed on March 1 of the same year, while Employee A was permanently appointed a month later, on April 1.

Under the terms of the Local 788 collective bargaining agreement A would have greater seniority for layoff purposes than B. But §§80 and 80-a of the Civil Service Law provides that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and so, under the law, B would have greater seniority than A.

These were the critical events in the Plattsburgh case. The City laid off Mousseau rather than another worker, Racine. While Mousseau, had been employed by the City for a longer period than Racine, Racine had received his permanent appointment before Mousseau was permanently appointed.

The Union grieved, contending that under the seniority provision in the collective bargaining agreement, Racine should have been laid off. The City, on the other hand, argued that Civil Service Law §80 controlled and thus Mousseau, rather than Racine, had to be laid off first. The Appellate Division ruled that Plattsburgh was entitled to an order barring submitting the Union’s grievance to arbitration. The Court said that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.

Similarly, in Szumigala v Hicksville Union Free School District, 148 AD2d 621, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated §2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

As the Court of Appeals said in County of Chautauqua v Civil Service Employees Ass'n, 8 N.Y.3d 513, “Once such an informed decision as to which positions are to be [abolished] is made, §80(1) obligates the employer to respect the seniority rights of its employees." The same it true with respect to layoffs of personnel in the unclassified service.

* Source The Anatomy of a Layoff by Harvey Randall, Esq., Municipal Lawyer, Summer 2009, Vol. 23, No. 2, published by the New York State Bar Association, One Elk Street, Albany, NY 12207 © 2009 New York State Bar Association. Reprinted with permission.

Tenure by estoppel

Tenure by estoppel

Dembovich v Liberty CSD, App. Div., 296 AD2d 794 

The basic rule concerning granting tenure to a probationary teacher or administrator is that although a school board may reject a superintendent's recommendation to grant the probationer tenure, a school board may not grant a probationary employee tenure unless the superintendent recommends that it do so.

Under certain circumstances, however, the teacher may attain tenure by estoppel. As the court said in Pascal v Board of Education, 100 AD2d 622, tenure by estoppel results when a school board fails to take the action required by law to grant or deny tenure and, with its full knowledge and consent, permits a teacher to continue to teach beyond the expiration of his or her probationary period.

Consideration of these two propositions were elements in resolving the Dembovich case.

Shiri Dembovich was appointed as a teacher by the Liberty Central School District. Her appointment was subject to her satisfactorily completing a two-year probationary period that was to end August 31, 2000. By letter dated March 30, 2000, the Superintendent of Schools, Brian Howard, notified Dembovich he would not recommend her for tenure and that her employment would be terminated effective June 23, 2000. Dembovich asked for, and received, the reasons for Howard's decision not to recommend her for tenure.*

In September of 2000, Dembovich asked the superintendent to obtain a substitute "to fill in for her" until September 11. Howard immediately responded, informing her that she had been terminated effective June 23, 2000 and that she should not report for work.

Dembovich disagreed, claiming that the district had failed to provide her with the procedural rights to which she was entitled under Education Law §3031 and thus she had not been properly terminated from her position. In effect, Dembovich contended that she had attained tenure by estoppel because the district had not properly terminated her prior the end of her probationary period and she had "continued in service" beyond the end of her probationary period.

§3031 of the Education Law requires that the board of education review "all recommendations not to appoint a person on tenure." The individual is to be advised of the date on which the board will consider the recommendation at least 30 days prior to the date of the meeting. Another procedural requirement: the individual "may, not later than 21 days prior to such meeting" ask for a written statement setting out the reasons for the superintendent's recommendation and may file a response to such reasons "not later than 7 days prior to the day of the board meeting."

On September 8, 2000, the school's attorney wrote to Dembovich advising her that the school board would hold the required §3031 meeting to consider the superintendent's recommendation that she not be granted tenure on September 11 and would, on that date, adopt a resolution terminating her employment retroactive to August 31, 2000.

Dembovich sued the school district contending that it had unlawfully denied her the §3031 rights to which she was entitled. Supreme Court agreed. It annulled the district's resolution and directed it to comply the procedures set out in §3031. Liberty appealed.

After dismissing the district's technical arguments concerning the timeliness of Dembovich's filing her Article 78 action, the Appellate Division addressed the merits of her claims.

The arguments advanced by the parties in support of their respective positions:

1. Dembovich contended that September 8, 2000 letter violated §3031 because it only gave Dembovich three days notice rather than the required 30 days notice.

2. The district argued that its complying with the §3031 procedure is moot because it could not grant Dembovich tenure in the absence of the Superintendent's affirmative recommendation that it do so.

The Appellate Division disagreed with the district's position as to mootness, pointing out that §3031 is very specific as to the procedure that must be followed by a school board in the event a superintendent recommends against granting tenure to a probationary teacher and a school board must be comply with these statutory mandates.

The court, however, did not go so far as to hold that Dembovich had attained tenure by estoppel because she had not been "terminate" on or before August 31, 2002, presumably because the district "had not accepted" her services after that date. All the Appellate Division ordered was that the school board to follow the procedures set out in §3031.

What is the potential impact on a school district if it is found that it did not comply with the provisions set by §3031?

In Tucker v Bd. of Education SD #10, 189 AD2d 704, the court found that Tucker, a probationary teacher, was advised that she was to be denied tenure 22 days before her probationary period was to end. As a result, the court ruled that Tucker was entitled to an award of pay for each day the district's notice to her that she would not be granted tenure was late. In other words, Tucker was entitled to pay corresponding to the number of days for which she was not provided the statutory days of notice.

Implicit in the ruling is that in the event a probationary teacher is not provided with timely notice that he or she is to be denied tenure, the failure to provide such notice is not a fatal defect insofar as any defense to the individual’s claiming tenure by estoppel or by default is concerned, provided the teacher was given formal written notice of this decision by the appropriate party prior to expiration of his or her probationary period and receives payment for each day that the notice was "late."

By the same token, a probationary period termination does not have to take effect on or before the last day of the applicable probationary period.

In Mendez v Valenti, 101 AD2d 612, the Appellate Division held that retaining Mendez on the payroll until the end of payroll period for administrative convenience did not result in his attaining tenure in the position. The Court held that under the circumstances, keeping Mendez on the payroll was permissible in view of the fact that it was of a short duration; for "administrative convenience;" and he was provided with timely notice of his probationary termination prior to the end of his probationary period.

Stated another way, the appointing authority has until the last day of the individual's probationary period to decide whether to retain the employee, extend the employee's probationary period, or to terminate the employee from his or her position. Although the employee's removal from the payroll may occur after this date, the required notice of the termination delivered to the employee before the end of his or her probationary period is deemed timely notice of termination for the purposes of determining if the individual attained tenure by estoppel.

Addressing another variation concerning the individual's employment obligation in relation to his or her tenure status, in Yastion v Mills, 229 AD2 775, the Appellate Division held that a teacher may work on a year-to-year contractual basis and never acquire tenure even after three years of continuous service. The decision points out that Yastion's continued employment was contingent on the district's receiving federal funding to support the position and his annual employment contracts specifically indicated that "tenure does not apply to this position."

* It is well settled that a probationary teacher may be dismissed from his or her position at any time during the probationary period without notice and hearing provided that such termination is not for an unlawful reason.

Suspension of retirement allowance upon post-retirement employment

Suspension of retirement allowance upon post-retirement employment

Matter of Grella v Hevesi, 38 AD3d 113

Philip M. Grella retired effective January 1, 2003 after serving as an Assistant District Attorney in Nassau County for 24 years and six years as a Judge of the Nassau County District Court.

Grella was appointed as a Court of Claims Judge effective June 30, 2003 and administratively assigned to Supreme Court. The Retirement System notified Judge Grella that his retirement allowance would be suspended because of his post-retirement employment once his earnings reached $25,000. He was also told that because he had been reemployed by the same employer from which he had retired, he could earn up to $36,000 without any diminution of his retirement allowance if he obtained a so-called 211 waiver [see Retirement and Social Security Law § 211].

In addition, the Retirement System decided that the nature of Grella post-retirement employment made him ineligible for the Civil Service Law §150 elective office exception.

The public policy in New York is that in the event a retired member of a public retirement system of this State returns to public service for the State or a political subdivision of the State, his or her retirement allowance is suspended until he or she again retires.*.

The major exceptions to this policy: Retirement and Social Security Law §212 sets forth limits on annual earnings which a retiree under the age of 65 may earn in public employment without diminution of his or her retirement allowance.

1. Section 150 of the Civil Service Law, which generally provides for the suspension of pension and annuity during a retiree’s post-retirement employment by the state, or of any municipal corporation, or political subdivision of the state, for compensation, does not apply where such compensation is paid in connection with jury duty, or serving in the office of inspector of election, poll clerk or ballot clerk under the election law, or received for serving as a notary public or commissioner of deeds, or an elective public office.

2. The Section 150 exception for election to public officer does not apply in situations where the individual “subsequent to his or her retirement from an elective public office, accepts appointment, is re-elected or takes a new oath of office to the same elective public office from which he or she retired.” In such cases the retiree’s retirement allowance is suspended until the date he or she vacates such elective public office, unless the amount earned for any calendar year for that elective public office does not exceed the earning limitation provided for retired persons in section two hundred twelve of the retirement and social security law.”

When Grella challenged the Retirement System’s determination, State Supreme Court Justice George B. Ceresia, Jr. ruled that Grella “did not accept elective public office within the meaning of Civil Service Law §150 when he was appointed by the Governor to the New York State Court of Claims.”

Justice Ceresa said that Grella’s was appointed, rather than elected to his position and this was not converted to elective office merely by reason of his assignment to New York State Supreme Court, an elective position. The Appellate Division agreed and dismissed Grella’s appeal.

On another point, Judge Grella had argued that the Retirement System should be “equitably estopped” from suspending his retirement benefits because he claimed that he relied on erroneous advice from an Office of Court Administration [OCA] representative regarding his entitlement to receive benefits” if he accepted postretirement employment with OCA.

Although acting on this advise may have proven detrimental to Grella, the Appellate Division said the doctrine estoppel “generally cannot be invoked against the state or its agencies” because erroneous advice provided by a government employee” as “this does not constitute the type of unusual circumstance” triggering application of the doctrine.

* The retiree’s retirement allowance is typically not affected in the event he or she accepts employment with a private sector employer, with the federal government or with another State or undertakes self-employment.

Application for employment as a correction officer rejected because of a conviction of a misdemeanor

Application for employment as a correction officer rejected because of a conviction of a misdemeanor

Matter of Little v County of Westchester, 2007 NY Slip Op 00140, Decided on January 9, 2007, Appellate Division, Second Department

Kith Little was disqualified for employment as a Westchester County corrections officer because he had been earlier convicted of misdemeanors.*

He sued Rocco Pozzi, the Westchester County Commissioner of Correction, seeking a court order directing his appointment as a corrections officer. The court sustained the Commissioner’s determination that Little’s previous misdemeanor convictions rendered him unfit for the position of correction officer.

The Appellate Division said that the appointing authority has wide discretion in determining the fitness of candidates, “which discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied.”

Finding that Pozzi’s decision was neither irrational nor arbitrary, the court dismissed Little’s appeal.

Another case, Carchietta v Department of Personnel, 568 NYS2d 386, involved the disqualification of a candidate for appointment to police officer positions based on information revealed in the course of a pre-employment checking the applicant's background.

Carchietta was disqualified by the New York City Department of Personnel for appointment as a police officer. The Department had disqualified him on the grounds of "character" following a background investigation. According to the report, Carchietta, as a youth, had been arrested in connection with his alleged participation in the transfer of a forged prescription for illicit drugs. Apparently the Department decided that his explanation of his involvement in the incident was "questionable."

Claiming that the Department's decision to disqualify him was arbitrary and capricious, Carchietta sued. Rejecting his appeal, the Appellate Division said that Carchietta had failed to present evidentiary facts from which an inference of bad faith, illegality or arbitrary or capricious conduct can be drawn. The court said that record supported the Civil Service Commission's "exercise of its broad discretion" in disqualifying Carchietta for the position of police officer on the basis of his "character."

* Section 50.4 of the Civil Service Law permits the State Department of Civil Service or a municipal commission or personnel officer to "investigate the qualifications and background of an eligible after he [or she] has been appointed ... and upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification ... direct that his [or her] employment be terminated." Except in cases of fraud, there is a three year statute of limitation on disqualifications pursuant to Section 50.4.”

Decisions of interest concerning Labor and Employment Law

Decisions of interest concerning Labor and Employment Law
Source: Justia October 28, 2011

Nat'l Labor Relations Bd. v. U.S. Postal Serv.

Court: U.S. 1st Circuit Court of Appeals

Docket: 11-1225

October 27, 2011

Judge: Lynch

Areas of Law: Government & Administrative Law, Labor & Employment Law

The union that represents postal workers raised concerns that newly hired non-veteran employees had begun work earlier, and thus received higher seniority rankings, than veteran employees, despite the fact that the veteran employees had applied for their positions earlier than had the non-veterans. Because the post office hiring register includes tests scores and other confidential, USPS keeps the information confidential under the Privacy Act,5 U.S.C. 552a and refused to disclose information requested by the union. In a claim under the NLRA, 29 U.S.C. 158(a)(5), an ALJ ordered USPS to furnish the union with the complete 2007 hiring register. The NLRB narrowed the order to the records of 22 employees at issue. The First Circuit vacated, holding that the employees have a legitimate, substantial privacy interest in the records, so that the Board was required to engage in a balancing of interests that was not part of its original analysis.

http://j.st/GZS

Ramos-Echevarria v. Pichis, Inc.

Court: U.S. 1st Circuit Court of Appeals

Docket: 10-1522

October 21, 2011

Judge: Thompson

Areas of Law: Health Law, Labor & Employment Law

Plaintiff, who suffers epilepsy, began working as a part-time kitchen assistant in 1999. His episodes would cause him to leave work three to six times each year, but generally he just stepped back and resumed work after the episode passed. He was denied a full-time position, filed a complaint with the EEOC, and obtained a right-to-sue letter. The court rejected his suit under the Americans With Disabilities Act, 42 U.S.C. 12101, Title VII, and 42 U.S.C. 1983. The First Circuit affirmed, concluding that plaintiff was not substantially limited in his ability to work or in other work activities, within the meaning of the ADA,.

http://j.st/prB

Garriott v. NCsoft Corp.

Court: U.S. 5th Circuit Court of Appeals

Docket: 10-50939

October 21, 2011

Judge: Elrod

Areas of Law: Contracts, International Law, Labor & Employment Law

Defendant appealed a jury verdict awarding damages to its former employee for breach of a stock options contract. Defendant argued that the jury instruction misstated the governing Korean law, that the jury's verdict relied on legally insupportable evidence, and that the district court applied the wrong law when determining attorney's fees. The court held that defendant failed to prove that the district court abused its discretion in excluding a requirement of coercion or intimidation from the jury instructions. Moreover, the district court did not abuse its discretion in denying defendant's motion for a new trial on damages. Finally, the award of attorney's fees would be permitted under either Texas or Korean law. Therefore, the judgment of the district court was affirmed.

http://j.st/pHX

Hutchins v. Clarke

Court: U.S. 7th Circuit Court of Appeals

Docket: 10-2661

October 24, 2011

Judge: BAUER

Areas of Law: Civil Rights, Communications Law, Labor & Employment Law

During a radio call-in show, plaintiff, a deputy sheriff, called in response to critical comments regarding defendant's (county sheriff) involvement with an African-American community organization dedicated to reducing crime and indicating that defendant was not a good fit for his position. Defendant called in and retorted by describing plaintiff as a "slacker" and mentioning a disciplinary action taken in 2004 against plaintiff for "sexual harassment." In actuality, the disciplinary action was for violation of a department rule that prohibited offensive conduct or language. The district court granted summary judgment in favor of the plaintiff on a claim under 42 U.S.C. 1983 for disclosure of plaintiff's disciplinary history, a claim under Wisconsin's Open Records Law, and a claim under Wisconsin's Right of Privacy statute. The Seventh Circuit reversed. There was no Records Act violation; there was no request to inspect a disciplinary record, no permission granted, and no balancing test undertaken. The information at issue is a matter of public record, so there was no Privacy Act violation. Rejecting a First Amendment retaliation claim, the court noted that there was no threat, coercion, or intimidation.

http://j.st/pjU

United Parcel Service, Inc. v. Jones

Court: U.S. 10th Circuit Court of Appeals

Docket: 09-3275

October 24, 2011

Judge: Briscoe

Areas of Law: Civil Rights, Labor & Employment Law

Defendant United Parcel Service, Inc. (UPS) appealed a jury verdict that awarded Plaintiff Keith Jones $2.5 million in actual and punitive damages based on UPS's retaliatory discharge in violation of Kansas common law. Plaintiff alleged, and the jury found, that UPS terminated Jones in retaliation for filing a workers' compensation claim. UPS alleged on appeal that (1) it was entitled to judgment as a matter of law on Jones's retaliation claim; (2) the district court erred in giving two improper jury instructions; (3) it was entitled to judgment as a matter of law on Jones's claim for punitive damages; (4) the district court erred in allowing the jury to decide the amount of punitive damages; and (5) the jury's award of $2 million in punitive damages violated its federal due process rights. Upon review, the Tenth Circuit affirmed in part and reversed in part, and remanded the case for further proceedings. The Court found that the evidence presented supported a reasonable inference in support of Plaintiff's retaliation claim. Therefore, the Court affirmed the district court's conclusion that UPS was not entitled to judgment as a matter of law on Plaintiff's retaliation claim. The Court also concluded that the jury instructions in this case, "although not a model of clarity," were not improper and that UPS, based on the evidence presented, was not entitled to judgment as a matter of law on Plaintiff's claim for punitive damages. The Court ultimately concluded the district court did not err in instructing the jury to determine the proper amount of punitive damages in this case. Finally, the Court concluded that the jury's $2 million punitive damage award was excessive and violated UPS's federal due process rights. The Court reversed and remanded on this limited issue to permit Plaintiff to choose between a new trial solely to determine punitive damages or acceptance of a remittitur to be determined by the district court.

http://j.st/pj6

Boroski, et al. v. DynCorp Int'l, et al.

Court: U.S. 11th Circuit Court of Appeals

Docket: 11-10033

October 27, 2011

Judge: Hopkins

Areas of Law: Injury Law, Insurance Law, Labor & Employment Law

This case arose when plaintiff, who was exposed to various chemicals during his employment with defendant and subsequently became legally blind in both eyes, sought workers compensation benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. 901-950. At issue was which date - the date on which disability occurred, or the date one which the injured employee was awarded benefits for such disability - determined the maximum weekly rate of compensation for a permanently totally disabled employee who was "newly awarded compensation." The court applied long-standing principles of statutory construction and found that the maximum weekly rate of compensation was governed by the rate in effect at the time of the award. Therefore, the court reversed the decision of the district court and remanded for calculation of the sum to be paid.

http://j.st/GkX

Ramos-Barrientos, et al. v. Bland, et al.

Court: U.S. 11th Circuit Court of Appeals

Docket: 10-13412

October 27, 2011

Judge: Pryor

Areas of Law: Agriculture Law, Immigration Law, Labor & Employment Law

Migrant workers who worked for defendant appealed a summary judgment in favor of defendant and against their complaint that defendant violated the Fair Labor Standards Act (Act), 29 U.S.C. 203(m). At issue was whether an employer that hired migrant farm workers through the H-2A visa program was entitled to wage credits under the Act for housing and meals that federal law required the employer to provide the workers. The court deferred to the Secretary of Labor's interpretation that defendant could not credit the cost of housing in the wages paid to the workers and agreed with defendant that it was entitled to wage credits for the costs of meals for the workers. The court also concluded that defendant was not liable under principles of agency law for the fees that third parties charged the workers related to their efforts to obtain employment with defendant. Accordingly, the court affirmed in part, reversed in part, and remanded.

http://j.st/GkR

McGahuey v. Whitestone Logging, Inc.

Court: Alaska Supreme Court

Docket: S-13742

October 21, 2011

Judge: Stowers

Areas of Law: Insurance Law, Labor & Employment Law, Public Benefits

A worker was involved in a fight in a logging camp bunkhouse. He did not file a report of injury related to the fight for over a year. When he finally filed a report of injury, he alleged that he had injured his hip, lower back, and ear in the fight. His employer denied the worker benefits because he did not give timely notice of the injury. The worker then alleged that he had verbally informed his supervisor of the injuries. After a hearing, the Alaska Workers’ Compensation Board determined that the worker’s claim was barred because he did not give his employer timely notice of the injury. The Board performed an alternative analysis assuming the worker had given timely notice and decided that the claim was not compensable. The Alaska Workers’ Compensation Appeals Commission affirmed the Board’s decision. Because the Commission correctly determined that substantial evidence in the record supports the Board’s decision on the compensability of the claim, the Supreme Court affirmed the Commission’s decision.

http://j.st/prK

Wolfe Elec., Inc. v. Duckworth

Court: Kansas Supreme Court

Docket: 99536

October 21, 2011

Judge: Nuss

Areas of Law: Antitrust & Trade Regulation, Business Law, Contracts, Injury Law, Labor & Employment Law

The case involved a manufacturer of conveyor pizza ovens, Wolfe Electric, its former employee, Terry Duckworth, and the competing business Duckworth helped form, Global Cooking Systems. Wolfe Electric brought suit against Duckworth and Global Cooking for misappropriation of secrets under the Kansas Uniform Trade Secrets Act. Wolfe Electric also separately alleged Duckworth breached his fiduciary duty and his employment contract while Global allegedly tortiously interfered with Duckworth's employment contract. A jury found for Wolfe Electric on all causes of action and awarded damages in a variety of categories. Both parties appealed. The Supreme Court reversed, holding that multiple erroneous jury instructions and a verdict that failed to specify which of the innumerable acts alleged actually caused which of the particular damages awarded required reversal. Remanded.

http://j.st/pHC

Appeal of Town of Deerfield

Court: New Hampshire Supreme Court

Docket: 2010-764

October 27, 2011

Judge: Dalianis

Areas of Law: Government & Administrative Law, Labor & Employment Law

Respondent Town of Deerfield (Town) appealed a Public Employee Labor Relations Board (PELRB) decision that certified Petitioner New England Police Benevolent Association (Association) as the exclusive bargaining representative for a police department bargaining unit. The Town objected to the Association's petition, arguing that the proposed bargaining unit did not include the statutory minimum of ten employees because three of the proposed members were not proper members. After unsuccessful appeals to the PELRB, the Town appealed to the Supreme Court. Upon review, the Supreme Court disagreed with Petitioner's contention that the PELRB could lawfully decide that as long as there were ten employees in a proposed unit, the ten-employee rule was satisfied. Here, the applicable statute plainly stated that the PELRB could not "add to, detract from, or modify the statute which they are intended to implement" by certifying a bargaining unit that contained fewer than ten employees. Accordingly, the Court reversed the PELRB's decision.

http://j.st/G4o

Holmes v. National Service Industries

Court: South Carolina Supreme Court

Docket: 27059

October 24, 2011

Judge: Pleicones

Areas of Law: Government & Administrative Law, Injury Law, Insurance Law, Labor & Employment Law

Petitioner Carolyn Holmes began working for linen company Respondent National Service Industries (National). According to Petitioner, the work environment at the facility was "very hot" and "sticky" with "a lot of lint and dust in the air," and was poorly ventilated. Petitioner was exposed to the fumes of bleach and did not wear a protective mask. In 1992, she began experiencing breathing and sinus problems. Petitioner never experienced breathing or sinus problems prior to working for National. In 1995, Petitioner was diagnosed with sarcoidosis, a respiratory and pulmonary condition. Petitioner testified that her doctor did not know what caused her sarcoidosis and that, in light of this statement, she took no further steps to determine the cause of her condition. In July 2005, Petitioner got a second opinion. Petitioner's second doctor stated in his report that it was unclear whether Petitioner's work exposure at National caused her sarcoidosis, but that it was more likely that her exposure to the airborne particles and fumes worsened her condition, which had previously developed. Based on this, Petitioner filed a workers' compensation claim alleging a compensable injury by accident to her lungs and respiratory system arising out of and in the scope of her employment with National on July 12, 2005, the date she alleges she first discovered her sarcoidosis was related to her employment. A single commissioner found Petitioner sustained a compensable injury. The full commission reversed the commissioner, finding petitioner's claim was barred by a two-year statute of limitations. Specifically, the full commission found petitioner was aware of her working conditions and, with some diligence on her part, could have discovered she had a claim more than two years before her filing date. Petitioner appealed. The circuit court and Court of Appeals affirmed the full commission's determination that petitioner failed to file her claim within the statute of limitations. Upon review, the Supreme Court found that the trial and appellate courts correctly found substantial evidence in the record to support the full commission's findings that Petitioner's claim was barred by the statute of limitations. Accordingly, the Court affirmed the appellate courts' decisions.

http://j.st/pjb