Employer Law Report

Tag Archives: v

Court Holds That Employer Did Not Have “Possession, Custody or Control” of Text Messages Sent or Received on its Employees’ Personal Cell Phones

In an employment race discrimination case, a federal court recently held that the defendant-employer did not have “possession, custody, or control” over text messages sent or received by its employees on their personal cell phones. The court denied the plaintiff’s motion to compel the production of these text messages because there was no evidence that:

  • the employer issued the cell phones to the employees;
  • the employees used the cell phones for any work-related purpose; or
  • the employer otherwise had any legal right to obtain employee text messages on demand.

Cotton v. Costco Wholesale Corp., Case No. 12-2731, slip op. …

Court Denies Employer’s Access to Social Media Posts in FLSA Collective Action and Sends Warning: If You Want Access to Social Media, Come with Both Barrels Loaded … Leave the Water Gun at Home

A federal court has denied a defendant-employer’s request that plaintiffs sift through and turn over all their social media posts made during their work hours in an FLSA collective action in which the plaintiffs claim their employer failed to give them meal breaks. How did that happen? I thought you’d never ask.

By way of background, Jewell v. Aaron’s Inc., is a nationwide,1,700+ FLSA collective action pending in the Northern District of Georgia. In the suit (Complaint accessible here), the class plaintiffs (current and former employees of Aaron’s) claim they were not paid for their 30-minute meal periods. …

Court Decides LinkedIn Ownership Case and Finds for Plaintiff But Refuses to Show Her the Money

The infamous LinkedIn ownership case, Eagle v. Edcomm, is over, and for the plaintiff, Dr. Linda Eagle, it was a win and a loss. We told you about this case in the post: "In the Social Media Battle Over Who Owns a LinkedIn Account, the Greatest Threat is State Law Claims – How Employers Can Protect Themselves in Light of Eagle v. Morgan as 11 State Law Claims Proceed to Trial." The case did go to trial, and the Eastern District of Pennsylvania decided that while Dr. Eagle proved three claims against her former employer, Edcomm, she was …

Ohio Federal District Court Rejects Public Policy Wrongful Termination Claim Against Private Employer Based On First Amendment

The summary judgment decision issued on October 31st by Ohio federal district court judge David Dowd in Barnett v. Aultman Hospital contains important reminders for both private employers and their employees. For employers, there is the reminder that they are not bound by the First Amendment’s protections for free speech. And for employees: Always remember to confirm that your supervisor actually has been fired before going to Facebook to celebrate.

In January 2011, after receiving the erroneous information that her supervisor had been fired, the plaintiff, Wendy Barnett, a registered nurse at Aultman Hospital sent an email through Facebook to …

Sutton v. Tomco Machining, Inc.: Ohio Supreme Court Expands Workers’ Compensation Retaliation Protection

On June 9, 2011, the Ohio Supreme Court issued its long awaited decision in Sutton v. Tomco Machining, Inc., in which the Court expanded the scope of workers’ compensation retaliation protection to include employees who are injured on the job but have not yet filed an actual workers’ compensation claim.

On April 14, 2008, DeWayne Sutton injured his back while working at Tomco Machining, Inc. ("Tomco”). He allegedly reported the injury to Tomco’s president and within one hour of reporting the injury, Sutton was fired. According to Sutton’s complaint, the president did not give him a reason for the …

Reverse Race Discrimination Case Before U.S. Supreme Court Raises Burning Issues

Yesterday, the U.S. Supreme Court heard oral arguments in Ricci v. DeStefano, a case in which several white and Hispanic New Haven firefighters claim that they were discriminated against when the city refused to certify promotion test results based on a concern that the test may have been flawed.  Attorneys for the firefighters contend that the city improperly refused to certify the test results because the test did not generate a sufficient number of African-American candidates for promotion. Attorneys for the city contend that the city properly took a second look at the validity of the test when it appeared …

Reminder to Unionized Businesses: You May Have a Duty to Bargain With Union Over Layoff Decisions

The recent decision by the United States Court of Appeals for the First Circuit in Pan American Grain Co. v. NLRB serves as a good reminder for unionized businesses contemplating layoffs: They may be obligated to bargain with the union that represents their employees not only over the effects of the layoff on employees but, possibly, the decision itself.

In Pan American, the court affirmed the NLRB’s ruling that a Puerto Rico grain company violated federal labor law by laying off 15 striking workers in February 2002 without giving their union an opportunity to bargain over the decision. Approximately 40 …

Revenue-Sharing of 401(k) Plan Fees Did Not Breach Fiduciary Duty Under ERISA

In the first federal appellate decision addressing the new breed of ERISA “excess fee” cases, the U.S. Court of Appeals for the Seventh Circuit last week held, in Hecker v. Deere & Co that the Employee Retirement Income Security Act (“ERISA”) does not require an employer that sponsors 401(k) plans for its employees to disclose to plan participants that the plans’ investment advisor shared revenue with the affiliated plan trustee. According to the court, nothing in ERISA prohibits a fiduciary from selecting funds from one management company, or requires a fiduciary to scour the market to find the cheapest funds. The court …

Recent Sixth Circuit Decision Authorizes Creative Solution to Address Runaway Intermittent Leave

Many employers have been pulling their hair out attempting to address runaway intermittent leave under the FMLA. The Sixth Circuit’s decision in Davis v. Michigan Bell authorizes one creative solution – change your 12-month FMLA period to a calendar-year basis.

On September 24, 2004, – the first day she became eligible for FMLA leave after having worked for her employer since 1997 – Candice Davis was granted FMLA intermittent leave for chronic depression certified by her health care provider. Between September 24 and December 13, 2004, she took several discrete absences from work due to her depression and each absence …

Suspected FMLA Fraud Results in Termination

Employers required to comply with the requirements of the Family and Medical Leave Act often are concerned about the fraudulent use of such leave by employees. Because employees taking intermittent leave under the FMLA are not required to provide certification from a healthcare provider for each incident of leave, the potential for fraud is even higher when intermittent leave is at issue. A recent decision from the U.S. Court of Appeals for the Seventh Circuit may provide more hope for employers seeking to minimize employees’ fraudulent use of FMLA intermittent leave.

The employer in Vail v. Raybestos Products Company had received tips …

Two Supreme Court Decisions Expand Retaliation Claims

On March 27, 2008, the Supreme Court released two opinions addressing discriminatory retaliation in the workplace. In the pair of opinions, the Court broadened the scope of potential claims for retaliatory conduct by holding that: (1) employees may bring a private action for discriminatory retaliation under §1981; and (2) the Age Discrimination in Employment Act (ADEA) prohibits retaliation against federal employees who complain of age discrimination.

In CBOCS West, Inc. v. Humphries, the Supreme Court held 7-2 that under 42 U.S.C. §1981, retaliation itself is a form of prohibited discrimination when contractual rights are at stake, even though §1981 does not …

Ninth Circuit Panel Again Upholds Granting of Class Action Status to Wal-Mart Female Workers; Wal-Mart Again Petitions For En Banc Review

In an unusual procedural move, a Ninth Circuit panel issued a revised opinion and rejected—for the second time—Wal-Mart’s request to overrule a lower court decision granting class action status to a lawsuit by six women representing a class of more than 1.5 million female workers. Dukes v. Wal-Mart, Inc., Case Nos. 04-16688 and 04-16720, 2007 U.S. App. LEXIS 28551 (9th Cir. Dec. 11, 2007). The class includes all female workers—from part-time, entry-level hourly employees to full-time, salaried managers—at Wal-Mart stores from December 1998 to the present “who have been or may be subjected to Wal-Mart’s challenged pay and management …

Equal Opportunity Spanking Nets New Trial

This case exemplifies our reason for creating the Employment Outtakes category. 

A California (where else?)appellate court (see Orlando v. Alarm Onehas overturned a jury award of $500,000 in compensatory and $1 million in punitive damages to a 52 year old female on sexual battery and sex harassment claims that  arose out of spankings that she received during the course of "motivational meetings" to encourage the sale of security systems. Apparently, the spankings, among other rather unique motivational techniques, were administered to both male and female employees who performed poorly (for instance, by arriving at work late or not selling

Sixth Circuit Holds That Gas Station Manager Is An Executive Employee Under the FLSA

Adding clarity to an often-litigated area of wage and hour law, the Sixth Circuit recently held that a small store manager was exempt from the FLSA’s overtime requirements despite her performance of non-managerial tasks and close supervision by her district manager. The case – Thomas v. Speedway SuperAmerica, LLC, No. 04-00147 (6th Cir. 2007) – involved a Speedway  gas station and convenience store manager who Speedway claimed was an exempt “executive employee” under the Fair Labor Standards Act. Even though the store manager was the most senior employee at the store, she was supervised by a district manager who visited the store twice …

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