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1 Westlaw Journal EMPLOYMENT Litigation News and Analysis Legislation Regulation Expert Commentary VOLUME 28, ISSUE 15 / FEBRUARY 19, 2014 WHAT S INSIDE WAGE AND HOUR 7 Court tosses claims airlines underfunded LAX security guard contracts Hawkins v. TACA Int l Airlines (Cal. Ct. App.) 8 NFL team raids pay, cheerleaders say Lacy T. v. Oakland Raiders (Cal. Super. Ct.) 9 Siemens cheats California workers out of rest, meal breaks, suit says Whitley v. Siemens Indus. (E.D. Cal.) BACKGROUND CHECKS 9 U.S. EEOC blasts Texas AG s suit over background check guidance State v. EEOC (N.D. Tex.) INFLUENZA VACCINE 10 Nurse s $100 billion suit says government pushes toxic flu shots Bashista v. St. Joseph Hosp. Sys. (E.D. Mich.) ASBESTOS EXPOSURE 11 Tennessee appeals court orders judge to decide damages in asbestos case Payne v. CSX Transp. (Tenn. Ct. App.) 12 Judge revives San Quentin inmate s suit over lead paint, asbestos exposure Spells v. Smith (N.D. Cal.) 13 Wisconsin appeals court revives insulation worker s asbestos suit Viola v. Wis. Elec. Power Co. (Wis. Ct. App.) FAIR LABOR STANDARDS ACT No pay for time union workers spend changing clothes, Supreme Court says In a unanimous ruling, the U.S. Supreme Court defined the meaning of changing clothes under a unionized worker wage provision of the Fair Labor Standards Act and clarified if workers should be paid for time spent donning and doffing protective clothing. Sandifer et al. v. U.S. Steel Corp., No , 2014 WL (U.S. Jan. 27, 2014). Employers need not pay unionized workers for the time spent on this activity unless such compensation is part of the terms of their collective bargaining agreement, the high court ruled Jan. 27, affirming decisions by an Indiana federal trial court and the 7th U.S. Circuit Court of Appeals. Section 203(o) of the FLSA provides an exception to the wage provision of the federal law in unionized facilities, stating that an employer need not compensate for time spent changing clothes if a collective bargaining agreement does not require it, the high court said. In a dispute between U.S. Steel and 800 current and former workers, the plaintiffs proposed a COMMENTARY Given claws by Staub, cat s paw reaches into state courts REUTERS/Peter Andrews The U.S. Supreme Court recently ruled that employers need not pay unionized workers for the time spent putting on and removing protective equipment unless such compensation is part of the terms of their collective bargaining agreement. In this photo, a miner wears a protective breathing mask. narrow definition of clothes to exclude protective equipment, while the company suggested that employee clothes are anything they need to wear to perform work. Justice Antonin Scalia, writing for the court, examined the dictionary definition of clothes at the time Section 203(o) was adopted in According to the opinion, clothes are defined as items that are both designed and used to cover CONTINUED ON PAGE 14 Adam Augustine Carter and R. Scott Oswald of The Employment Law Group examine how a 2011 U.S. Supreme Court ruling in an employment discrimination case is increasingly being used in state courts. SEE PAGE 3

2 Westlaw Journal Employment Published since May 1986 Publisher: Mary Ellen Fox Executive Editor: Donna M. Higgins Managing Editor: Tricia Gorman Managing Desk Editor: Robert W. McSherry Senior Desk Editor: Jennifer McCreary Desk Editor: Sydney Pendleton Westlaw Journal Employment (ISSN X) is published biweekly by Thomson Reuters. Thomson Reuters 175 Strafford Avenue, Suite 140 Wayne, PA Fax: Customer service: For more information, or to subscribe, please call or visit west.thomson.com. Reproduction Authorization Authorization to photocopy items for internal or personal use, or the internal or personal use by specific clients, is granted by Thomson Reuters for libraries or other users registered with the Copyright Clearance Center (CCC) for a fee to be paid directly to the Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923; ; How to Find Documents on Westlaw The Westlaw number of any opinion or trial filing is listed at the bottom of each article available. The numbers are configured like this: 2013 WL Sign in to Westlaw and on the Welcome to Westlaw page, type the Westlaw number into the box at the top left that says Find this document by citation and click on Go. TABLE OF CONTENTS Fair Labor Standards Act: Sandifer v. U.S. Steel Corp. No pay for time union workers spend changing clothes, Supreme Court says (U.S.)...1 Commentary: By Adam Augustine Carter, Esq., and R. Scott Oswald, Esq., The Employment Law Group Given claws by Staub, cat s paw reaches into state courts... 3 Wage and Hour: Hawkins v. TACA Int l Airlines Court tosses claims airlines underfunded LAX security guard contracts (Cal. Ct. App.)... 7 Wage and Hour: Lacy T. v. Oakland Raiders NFL team raids pay, cheerleaders say (Cal. Super. Ct.)...8 Wage and Hour: Whitley v. Siemens Indus. Siemens cheats California workers out of rest, meal breaks, suit says (E.D. Cal.)...9 Background Checks: State v. EEOC U.S. EEOC blasts Texas AG s suit over background check guidance (N.D. Tex.)...9 Influenza Vaccine: Bashista v. St. Joseph Hosp. Sys. Nurse s $100 billion suit says government pushes toxic flu shots (E.D. Mich.) Asbestos Exposure: Payne v. CSX Transp. Tennessee appeals court orders judge to decide damages in asbestos case (Tenn. Ct. App.)...11 Asbestos Exposure: Spells v. Smith Judge revives San Quentin inmate s suit over lead paint, asbestos exposure (N.D. Cal.)...12 Asbestos Exposure: Viola v. Wis. Elec. Power Co. Wisconsin appeals court revives insulation worker s asbestos suit (Wis. Ct. App.)...13 Recently Filed Complaints from Westlaw Court Wire...15 Labor and Public Employment News...17 News in Brief...19 Case and Document Index WESTLAW JOURNAL n EMPLOYMENT 2014 Thomson Reuters

3 COMMENTARY Given claws by Staub, cat s paw reaches into state courts By Adam Augustine Carter, Esq., and R. Scott Oswald, Esq. The Employment Law Group In its March 2011 decision in Staub v. Proctor Hospital, 131 S. Ct (2011), the U.S. Supreme Court increased the bank of evidence that employment plaintiffs may rely upon when proving discrimination or retaliation cases. The court endorsed the cat s paw theory of liability, holding that an employer can be liable for discrimination or retaliation if the employer acts innocently but based on input from a biased supervisor. The term cat s paw comes from one of Aesop s fables, in which a monkey flatters a cat into extracting roasting chestnuts from a fire in other words, using the cat s paw to do that which the monkey could not or did not want to do. In Staub a hospital vice president fired a U.S. Army reservist who worked as an angiography technician. While the VP herself had no anti-military bias, she relied partly on disputed reports and warnings from the reservist s supervisors, who were hostile to his Army obligations. The reservist sued, claiming a breach of the Uniformed Services Employment and Reemployment Rights Act, which bans workplace discrimination based on military service. In an 8-0 decision, the Supreme Court ruled that the VP s actions could indeed violate USERRA. In the main opinion, Justice Antonin Scalia ruled that employers may escape liability as a matter of law only if the ultimate decision-maker has conducted an investigation and acted for reasons unrelated to the supervisor s original biased action a fact that is the employer s burden to establish. Otherwise, Justice Scalia said, a court must assess whether the original biased action was intended to cause an adverse employment action and, if so, whether it was a proximate cause of the action under litigation generally a matter for a jury. Adam Augustine Carter (L), a principal of The Employment Law Group in Washington, has more than 20 years of courtroom experience. Carter represents employees who bring claims against their employers for wrongful termination, leave violations, contract disputes, discrimination and other violations of workplace laws. He is recognized by Super Lawyers and the Top 100 Trial Lawyers. R. Scott Oswald (R) is managing principal of The Employment Law Group. He has brought more than three dozen trials to verdict and has recovered more than $90 million in judgments and settlements for clients nationwide. Oswald has been honored as one of the Best Lawyers in America and as a Super Lawyer in the category of employment litigation. 232 cases, 16 are from state courts and the rest from federal courts. State law claims have also been litigated in federal courts, alongside claims based on federal laws. Staub s impact has reached through various federal statutes and is moving into state statutes as well. Over time, Staub s influence and reasoning will continue to spread across the nation into state and local statutes. THE JACKSON CASE In Edgewood Management Corp. v. Jackson, 212 Md. App. 177 (2013), the Maryland Court The court endorsed the cat s paw theory of liability, holding that an employer can be liable for discrimination or retaliation if the employer acts innocently but based on input from a biased supervisor. Justice Scalia indicated that the same cat s-paw standard would apply to any antidiscrimination statute similar to USERRA, including Title VII of the Civil Rights Act of Since the March 2011 decision, Staub has been cited in 365 cases, 232 of which cite directly to the cat s paw analogy. Of those of Special Appeals held that Staub s cat s paw theory applied to Montgomery County s antidiscrimination statutes, which are authorized by Section of the State Government Article in the Maryland state code. At the time of her resignation in March 2010, Donna Jackson had worked for Edgewood since 1979 in multiple positions. In September 2009, Arturo Reyes became Jackson s direct supervisor. In December 2009, Jackson reported her subordinate s complaint of gender discrimination, against Reyes, to Reyes supervisor, Norman Azouqha. Within a month, Jackson said, Reyes began retaliating against her, first proposing a disciplinary memo and recommending her termination. Azouqha issued Jackson a disciplinary action memorandum instead Jan. 25, Jackson promptly rebutted the criticisms in the memo and questioned whether there were other reasons as to why Mr. Reyes found it necessary to put in writing these accusations. Reyes continued to encourage Azouqha to terminate Jackson s employment and also 2014 Thomson Reuters FEBRUARY 19, 2014 n VOLUME 28 n ISSUE 15 3

4 planned her transfer to another location with a much longer commute. On Feb. 24, 2010, Reyes rejected Jackson s rebuttal of the disciplinary memo and informed her of the transfer and a salary reduction. The next day, Jackson submitted her resignation. In her resignation letter, Jackson stated that she believed the transfer was retaliatory. Jackson filed a complaint of retaliation under Md. Code Ann. State Gov t , asserting a violation of Section 27 19(c) of the Montgomery County Code for retaliation after opposing gender discrimination. After a trial on Jackson s retaliation claims, the jury awarded her a $650,000 verdict. Edgewood appealed, arguing that Jackson s evidence at trial was insufficient to sustain her retaliation claim. The Court of Special Appeals denied Edgewood s appeal and reinstated the jury s verdict. Edgewood argued that Jackson could not state a retaliation claim because Scott Jones, a regional vice president, was the person who approved Jackson s transfer and salary decrease and did not have knowledge of Jackson s report at the time. The Jackson court took notice of the Staub holding, which considered claims brought under Title VII of the Civil Rights Act of [I]f a supervisor performs an act motivated by [discriminatory] animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer may be held liable, The court said. Edgewood, 212 Md. App. at , citing Staub, 131 S. Ct. at 1194 (footnote omitted). The Jackson court also noted that the Staub decision supported a finding that: if a supervisor submits a biased report urging an adverse employment action, even if the decision-maker conducts an independent investigation in response to the report and concludes that termination is justified, an employee still may show that the biased report was the proximate cause of the adverse employment action if it was one of many factors considered by the decision-maker. Edgewood, 212 Md. App. at 205, citing Staub, 131 S. Ct. at Thus, despite Reyes claims that Jackson had performance deficiencies, his actions were based in retaliatory intent and thus supported Jackson s legal claims of retaliation. OTHER COURTS APPLYING STAUB The U.S. District Court for the District of Maryland has confirmed its commitment to applying the Staub and Jackson decisions to state law claims. See Allen v. Dorchester County, Md., 2013 WL (D. Md. Sept. 30, 2013) (same standards apply to race discrimination claims under state law as under Title VII). Staub s impact has reached through various federal statutes and is moving into state statutes as well. Similarly, Ohio state courts have applied the Staub standard to its antidiscrimination law. See Smith v. Ohio Dep t of Pub. Safety, 997 N.E.2d 597 (Ohio Ct. App. Sept. 26, 2013). Willie Smith Jr., who is black, worked as a state trooper from October 1998 through October In June 1999 he began working with Joseph Dragovich, who frequently criticized Smith s work. Smith was initially terminated in June 2000, but was reinstated after a union grievance. Upon his reinstatement, Smith was assigned to meet with Dragovich for policy and procedure updates. He said Dragovich was very hostile to him during that meeting and continued to criticize his performance over the next several years. In July 2006, Smith met with Dragovich and other leadership and stated that Dragovich was racially biased. Smith subsequently filed a charge of discrimination and retaliation against the Department of Public Safety under Title VII and Ohio law. Alleging performance deficiencies, the department assigned Dragovich to investigate and subsequently discharged Smith. Smith then filed a claim of discrimination and retaliation under Title VII and state law. After a bench trial, the court dismissed Smith s claims, finding that he could not establish a prima facie case and could not prove that the defendants discharged him for retaliatory reasons. Smith appealed, arguing that the trial court failed to consider and apply the cat s paw theory of liability. The Smith court noted the differences in the standards of causation in Uniform USERRA claims (which were the underlying claims in Staub) and Title VII and/or claims under Ohio state law for retaliation: The former has a motivating factor standard and the latter has a but for standard. The Smith court then held that the defendants could be liable under the cat s paw theory if Dragovich performed an act motivated by retaliatory animus that was intended to cause an adverse employment action and that act was the but-for cause of Smith s discharge. Id. at *13. Although Dragovich had caused various personnel actions against Smith to be implemented, the appeals court refused to reverse the trial court s dismissal of his discrimination claims for lack of evidence supporting. Although Smith did not prevail, the Smith court clearly applied Staub s analysis to Smith s Title VII and Ohio state law claims, without distinction. Likewise, California courts have adopted the Staub standard. See McGrory v. Applied Signal Tech., 212 Cal. App. 4th 1510, 1536 (Cal. Ct. App., 6th Dist. Jan. 24, 2013) (noting that the employer could be liable under the state s Fair Employment and Housing Act for the supervisor s discriminatory motivation if decision-makers were merely the cat s paws of a biased investigator), citing Staub, 131 S. Ct. at 1194; Reeves v. Safeway Stores, 121 Cal. App. 4th 95, 116 (Cal. Ct. App., 6th Dist. 2004); see Young v. Dillon Companies Inc., 468 F.3d 1243, 1253 (10th Cir. 2006)).. MICHIGAN COURT OF APPEALS Michigan s courts have also applied the Staub standard to its state antidiscrimination laws. In Clum v. Jackson National Life Insurance Co., 2013 WL (Mich. Ct. App. Nov. 5, 2013), Michael Clum, who is white, claimed that Jackson National Life had terminated his employment because of his race. A jury awarded Clum more than $1 million in damages and JNL appealed. JNL argued that it could not be held liable for Clum s termination even if it were motivated by race-based concerns. 4 WESTLAW JOURNAL n EMPLOYMENT 2014 Thomson Reuters

5 State court cases referring to Staub v. Proctor Hospital 2011 Dantzler v. Elliott, 2011 WL (Mich. Ct. App. 2011): Plaintiff claimed an adverse employment action arising from pregnancy discrimination. Hertz Equipment Rental Corp. v. Barousse, 365 S.W.3d 46 (Tex. App.-Houston 2011): Former employee brought action against employer alleging retaliation for his filing of a workers compensation claim. Toy v. AT&T Inc., 2011 WL (Cal. Super. Ct., Alameda County 2011): The action alleges defendants discriminated against plaintiff based on his age and Chinese race or national origin. Walsh v. Town of Millinocket, 28 A.3d 610 (Me. 2011): Upon the elimination of her position, a former town employee claimed a violation of the Whistleblower Protection Act Andoh v. Connecticut Commission on Human Rights and Opportunities, 2012 WL (Conn. Super. Ct., New Britain Jud. Dist. 2012): Plaintiff alleged discrimination after defendant failed to appoint him interim dean of the university s school of business. Chandler v. CSC Applied Technologies, 376 S.W.3d 802 (Tex. App.-Houston 2012): Former employee sued his employer for race discrimination and retaliation. Gonzalez v. Champion Technologies, 384 S.W.3d 462 (Tex. App.- Houston 2012): Former employee brought action against his employer for employment discrimination, retaliation and fraud. Lemay v. State, 191 Vt. 635 (Vt. 2012): Former state trooper sued the state of Vermont for gender discrimination. Lentine v. State, 282 P.3d 369 (Alaska 2012): Former employee of the state of Alaska alleged the state violated the implied covenant of good faith and fair dealing in her termination. Ofori v. University of Medicine and Dentistry of New Jersey, 2012 WL (N.J. Super. Ct. App. Div. 2012): Defendant was accused of workplace discrimination based on racial animus. Semple v. Kofax Inc., 2012 WL (Cal. Ct. App., 4th Dist. 2012): Former employee of a computer software company accuses it of sex discrimination in the termination of her employment. Steele v. City of Southlake, 370 S.W.3d 105 (Tex. App.-Fort Worth 2012): Former police officer sued claiming retaliation in violation of the Whistleblower Act. Stelly v. San Antonio Aerospace, 2012 WL (Tex. App.-San Antonio 2012): Plaintiff made claims against defendant for racial and sexual harassment Alagok v. State, 2013 WL (Minn. Ct. App. 2013): Plaintiff, a former employee of the Minnesota Department of Transportation, asserted that her termination was the result of discrimination based on national origin, religion and gender. Battaglia v. United Parcel Service Inc., 214 N.J. 518 (N.J. 2013): Employee brought action against employer, claiming that his demotion was in retaliation for comments that he made. Case was remanded for further proceedings. Booker v. City of Austin, 2013 WL (Tex. App.-Austin 2013): Aspirant firefighter alleges she was terminated because of racial and gender discrimination and retaliation. Brown v. State, 2013 WL (Vt. 2013): Plaintiff filed a complaint against the state of Vermont, claiming that its failure to promote him and its eventual termination of him were based on his membership in the Vermont National Guard. Clum v. Jackson National Life Insurance Co., 2013 WL (Mich. Ct. App. 2013): Former maintenance worker claimed wrongful termination because of his race. Edgewood Management Corp. v. Jackson, 212 Md. App. 177 (Md. Ct. Spec. App. 2013) Former manager alleged that her termination was in retaliation for her reporting a sex discrimination complaint made by a subordinate. Harris v. City of Santa Monica, 56 Cal. 4th 203 (Cal. 2013): Former bus driver accused the city of Santa Monica of pregnancy discrimination in her termination. Hung v. Kaiser Permanente et al., 2013 WL (Cal. Ct. App., 6th Dist. 2013): After a forced retirement, a former pharmacist sued for damages. McGrory v. Applied Signal Technology, 212 Cal. App. 4th 1510 (Cal. Ct. App., 6th Dist. 2013): Supervisor brought action against his former employer for wrongful termination after the employer determined that he had violated its policies on sexual harassment and business and personal ethics. Nelson v. James H. Knight DDS P.C., 834 N.W. 2d 64 (Iowa 2013): Former dental assistant alleged sex discrimination in her termination. Rochat v. L.E.K. Consulting, 83 Mass. App. Ct (Mass. App. Ct. 2013): Plaintiff alleged the termination of her employment was motivated by discrimination on the basis of gender. Sanks-King v. University of Medicine and Dentistry of New Jersey, 2013 WL (N.J. Super. Ct. App. Div. 2013): Former general counsel to medical school alleges that her employment was terminated on grounds of discrimination and that her constitutional rights to due process were violated. Savoie v. Lawrenceville School, 2013 WL (N.J. Super. Ct. App. Div. 2013): Plaintiff, a former teacher, alleges that defendant s adverse employment actions were the result of discrimination on the basis of sexual orientation and sexual activity. Smith v. Ohio Department of Public Safety et al., 997 N.E.2d 597 (Ohio Ct. App. 2013): Former Ohio state trooper filed suit for race discrimination and retaliation. Winston v. Countrywide Financial Corp., 2013 WL (Cal. Ct. App., 2d Dist. 2013): Human resources executive accused his former employer of wrongful termination and fraud Thomson Reuters FEBRUARY 19, 2014 n VOLUME 28 n ISSUE 15 5

6 Clum and James DeMyers, who is black, were colleagues for years, but did not get along, according to the appeals court opinion. On one occasion, they nearly got into a fight. DeMyers accused Clum of asking him to take it outside. DeMyers requested that their team leader, Mark Middaugh, report the incident to management. Middaugh reported the incident to the facilities manager, Vince Vilona, about two weeks later. Clum asked to meet with Vilona about the incident first though, and Vilona delayed that meeting. Vilona asked Middaugh to prepare a written statement about the incident. Middaugh reported that DeMyers asked Clum if he wanted to step outside. Vilona and Tim Dooling, the director of facilities, reported the incident to the head of the human resources department, who later interviewed Clum, DeMyers and Middaugh. DeMyers told Bruce Raak from HR that Clum commented to him, You need to do something about your boy. Clum denied making the statement. After DeMyers requested to meet with Raak to discuss why his complaint had not been resolved, Raak, along with Vilona and Dooling, decided to terminate Clum s employment for engaging in violent behavior at work. They also demoted Middaugh over his delay in reporting the incident. In his suit under Michigan s Civil Rights Act, Clum alleged that JNL was overly sensitive to race issues and thus treated DeMyers preferentially. Clum recounted a previous incident where the company terminated an employee for commenting that the police likely made a traffic stop based on DeMyers; race and noted that after that incident, Middaugh repeatedly stated that DeMyers liked to play the race card. Clum argued that Middaugh gave a skewed report to management to avoid DeMyers potential race discrimination claims if he were upset with the outcome of the incident. Clum also provided evidence that he had a better work record than DeMyers. DeMyers had multiple performance-related problems, but had not been disciplined. In contrast, JNL terminated Clum without giving him a final warning. The jury awarded Clum about $1 million. The appeals court upheld Clum s verdict, noting that Middaugh s report was biased against Clum based on Clum s race and was an important factor in the decision by Raak, Dooling and Vilona to terminate Clum. The court recited the holding in Staub and noted that the 6th U.S. Circuit Court of Appeals had repeatedly applied the cat s paw doctrine to hold employers liable for discrimination by non-decision-makers. The court also explicitly found that the trial court s cat s paw instruction was not reversible error, even in light of the fact that there were no published state court decisions adopting the cat s paw theory of liability, thus adopting the Staub standard to state law claims of discrimination. CONCLUSION Staub and the resulting decisions give plaintiffs a new mechanism to demonstrate that their protected class or activity caused the adverse action in question when an actor even one far down the chain of command sets in motion intentionally an employer s disciplinary mechanisms that lead, even much later, to an adverse action. WJ WESTLAW JOURNAL INTELLECTUAL PROPERTY This publication keeps corporations, attorneys, and individuals updated on the latest developments in intellectual property law. The reporter covers developments in state and federal intellectual property lawsuits and legislation affecting intellectual property rights. It also covers important decisions by the U.S. Justice Department and the U.S. Patent and Trademark Office. Coverage includes copyright infringement, Lanham Act, trademark infringement, patent infringement, unfair competition, and trade secrets Call your West representative for more information about our print and online subscription packages, or call to subscribe. 6 WESTLAW JOURNAL n EMPLOYMENT 2014 Thomson Reuters

7 WAGE AND HOUR Court tosses claims airlines underfunded LAX security guard contracts A former Los Angeles International Airport security guard did not provide enough evidence to support her claim that three airlines knowingly underfunded its security contracts, causing her employer to underpay guards, a California appeals court has decided. TACA International Airlines, Volaris and LAN Airlines knew Sereca would be unable to pay its guards based on their lowball contracts, Hawkins claimed. The airlines filed separate demurrers, arguing that Hawkins had offered only general statements about the law without including any specific contract information. Hawkins conceded that she had never seen the contracts in question and had been unable to obtain a copy from Sereca, according to the appellate opinion. The Superior Court dismissed her claims in June 2012, denying Hawkins motion to file a fourth amended complaint that would clarify her allegations. The appeals court affirmed. Hawkins had other ways of providing contract specifics besides proffering the contracts themselves, the panel said, noting that she could have used oral and written third-party depositions to obtain the contracts after Sereca failed to produce them. Without the contracts, Hawkins could only make general allegations that were insufficient to support her claims, the appeals court said. REUTERS/Fred Prouser The appeals court said the wage-based allegations against three airlines, filed by a former security guard at Los Angeles International Airport, were not specific enough to support her claims. An area outside the airport is shown here. The panel also found that Hawkins allegations against Sereca contradicted her claims against the airlines. In her original complaint, Hawkins claimed that Sereca could pay the guards but did not. Hawkins v. TACA International Airlines S.A. et al., No. B242769, 2014 WL (Cal. Ct. App., 2d Dist., Div. 4 Jan. 27, 2014). A three-judge panel of the 2nd District Court of Appeal affirmed the trial court s dismissal order Jan. 27, agreeing that Arlette Hawkins allegations were not specific enough to support her claims. Hawkins, who never had a copy of the allegedly flawed contracts, could not possibly offer legally sufficient allegations, the panel noted. Hawkins, who says she worked as an LAX security guard for Sereca Security Corp. from May 2007 to September 2009, sued the company in 2010 on behalf of nearly 300 former guards, accusing Sereca of failing to pay them overtime, reimburse them for uniforms or provide itemized pay stubs. The security company had the ability to pay all wages but intentionally adopted 2014 Thomson Reuters Without submitting the contracts at issue, the plaintiff was limited to making conclusory allegations against the airline defendants, the appeals court said.... policies or practices incompatible with the requirements of Labor Code 201 and 202, the suit said. The Los Angeles County Superior Court certified the class in December 2011, two months before the company defaulted without replacing its counsel, who had left, citing irreconcilable differences. Hawkins then sued three airlines that used Sereca guards, citing Section 2810 of the state labor law, which authorizes a services contractor s employees to sue the party hiring the contractor if the hiring party knowingly pays a contract price insufficient to permit the contractor to comply with the law in performing the contract. If that was true, then the contracts with the airlines could not have been underpaid, the appeals court said. WJ Attorneys: Appellant: Ellen Lake, Los Angeles; Michael Nourmand, Nourmand Law Firm, Los Angeles Respondent (TACA): Mark D. Kemple and Karin L. Bohmholdt, Greenberg Traurig, Los Angeles Respondent (LAN): Maria C. Rodriguez and Benjamin M. Gipson, DLA Piper, Los Angeles Respondent (Volaris): Stephen T. Owens and Emily L. Wallerstein, Squire Sanders, Los Angeles Opinion: 2014 WL See Document Section B (P. 31) for the opinion. FEBRUARY 19, 2014 n VOLUME 28 n ISSUE 15 7

8 WAGE AND HOUR NFL team raids pay, cheerleaders say Two Oakland Raiders cheerleaders have filed a class-action lawsuit alleging the football team is flagrantly violating California pay and labor laws. Lacy T. et al. v. Oakland Raiders et al., No. RG , amended complaint filed (Cal. Super. Ct., Alameda County Feb. 4, 2014). Cheerleader Lacy T., one of about 40 Raiderettes during the football season, filed the suit in Alameda County Superior Court on Jan. 22, alleging long hours and low pay sometimes no pay for cheer squad members. Another cheerleader, Sarah G., joined the suit in an amended complaint filed Feb. 4. The plaintiffs seek to represent past and present Oakland Raiderettes. The suit says Raiderettes are required to attend all of the team s preseason, regular season and post-season home football games; two to three rehearsals a week for about three hours per session; fittings; photo sessions; meetings; and workouts. They earn a flat fee of $125 per game for the home games at which they perform, the women say. They may not have the opportunity to earn even that if they are benched, the suit says. Benching is a punishment that may be doled out for infractions ranging from failing to attend the final rehearsal before a game, to appearing soft or gaining as little as five pounds, the complaint says. Raiderettes earn a flat fee of $125 per game for the home games at which they perform, the suit says. A benched Raiderette may be required to perform pregame and at halftime, but may then be instructed to remain in the dressing room for the game itself, resulting in a day with no pay, the plaintiffs say. And cheer squad members are expected to make 10 charitable appearances per season, along with appearances at various Raider events, all without pay, the suit says, and it is up to the Raiders to determine if a Raiderette will attend a paid appearance. The women also allege that even when Raiderettes earn compensation, there is no guarantee they will keep it. The organization deducts fines from the cheerleaders pay for such things as forgetting to bring the right pom-poms to practice, wearing the wrong workout clothing to rehearsals, arriving late to practice, or missing rehearsals, the suit says. Raiderettes are not compensated for overtime or expenses and do not get meal and rest breaks either, the suit says. The women are required to pay for their own travel to appearances, for expensive appointments with stylists selected by the team, and for replacement of special team cosmetics, uniforms or other equipment, according to the suit. Lacy T. says she spent about $650 meeting the requirements for just one season of work with the Raiderettes. Sarah G. says she spent an average of $1,125 per season on business expenses. According to the suit, the cheerleaders are paid only once a season, at the conclusion of all of the Raiders home games, which occurs at least eight months after they begin working. The suit alleges the team s pay policies and work practices failure to pay minimum wages and overtime and unlawful wage deductions violate Order No of the California Industrial Welfare Commission, and the state s labor and business laws. The women seek unpaid wages, restitution and unspecified damages, along with declaratory and injunctive relief. WJ Attorneys: Plaintiffs: Sharon R. Vinick, Darcie Burrell and Leslie F. Levy, Levy Vinick Burrell Hyams LLP, Oakland, Calif. Original complaint: 2014 WL REUTERS/Kirby Lee/USA TODAY Sports Oakland Raiders quarterback Terrelle Pryor (2) runs in front of Denver Broncos defensive tackle Terrance Knighton (94) in a game Dec. 29. The Raiders are facing a lawsuit alleging the team s pay policies and work practices for its cheerleaders violate California law. 8 WESTLAW JOURNAL n EMPLOYMENT 2014 Thomson Reuters

9 WAGE AND HOUR Siemens cheats California workers out of rest, meal breaks, suit says Technology company Siemens Industry fails to give hundreds of its hourly laborers at it California plants rest and meal breaks when they work more than 10 hours a day, a Sacramento federal court lawsuit says. Whitley v. Siemens Industry Inc. et al., No , complaint filed (E.D. Cal. Jan. 15, 2014). The suit, filed in the U.S. District Court for the Eastern District of California, also alleges the company s repeated violations of California labor laws constitutes an unfair business practice under the state s Business Code, Cal. Bus. & Prof. Code Jarrid Whitley, a former welder at the Siemens Rail Systems plant in Sacramento, filed the suit on behalf of as many as 600 current and former hourly employees who were allegedly denied breaks in the last four years. The plant is operated by Siemens USA, an affiliate of Germany-based Siemens Global, a worldwide supplier of technology systems in the production, building and transportation sectors, according to the complaint. Whitley alleges the company fails to provide a second rest or meal break when an hourly employee works more than 10 hours in a day and also fails to compensate the worker for missed breaks. This failure to pay for additional, untaken breaks also results in inaccurate pay statements, the complaint says. Additionally, the suit says, before late 2013, Siemens never told employees they were entitled to an additional break and did not tell workers when they could take their breaks. REUTERS/Fabrizio Bensch The suit seeks more than $10 million in general, nominal and compensatory damages. WJ Attorney: Plaintiff: Anthony M. Perez Jr., Sacramento, Calif. Complaint: 2014 WL BACKGROUND CHECKS U.S. EEOC blasts Texas AG s suit over background check guidance (Reuters) The U.S. Equal Employment Opportunity Commission has issued a sharply worded rebuke to a challenge by Texas attorney general to the agency s criminal background check guidance, the latest in a continuing back-and-forth between the EEOC and Republican state attorneys general on the issue. State v. Equal Employment Opportunity Commission et al., No , motion to dismiss filed (N.D. Tex., Lubbock Div. Jan. 27, 2014). Texas Attorney General Greg Abbott, who is running for governor of that state, in November sued the EEOC in federal court in Lubbock, Texas, saying the agency s April 2012 guidance on using criminal background checks in hiring violates the U.S. Administrative Procedure Act and undermines Texas sovereignty. The lawsuit seeks a judgment saying that the guidance is unlawful, as well as an injunction. The suit followed a July 2013 letter by nine state AGs, all Republicans, blasting the EEOC s policy and calling it, as well as two recent lawsuits the EEOC had filed, gross federal overreach. The EEOC responded with its own letter, defending its guidance. In a motion to dismiss the Texas lawsuit filed Jan. 27, the EEOC echoed its earlier defense, attacking both the timing and substance of the Texas lawsuits and saying that the complaint had threshold problems and shortcomings; that it lacked standing; that the lawsuit s timing was not ripe; and that it fundamentally misunderstood the role of the EEOC in administering Title VII of the 1964 Civil Rights Act, the key federal workplace antidiscrimination law. The claimed injury is illusory, the EEOC wrote. The EEOC s guidance warns employers that certain uses of criminal background checks can violate Title VII. It is only advisory, the agency wrote in its response. Numerous federal courts have noted that EEOC guidance on various topics regarding Title VII does not have the force of law, the EEOC wrote in the motion. Moreover, the agency wrote, Texas suit is misguided because the EEOC does not actually have jurisdiction over state hiring practices, the agency wrote. Importantly, with respect to states, the EEOC plays a more limited role in implementing Title VII than it does with private employers, the agency wrote. The EEOC is prohibited by statute from bringing enforcement actions against states. WJ (Reporting by Carlyn Kolker) Attorneys: Plaintiff: Jonathan Mitchell, Andrew Oldham and Arthur D Andrea, Office of the Texas Attorney General, Austin, Texas Defendant (EEOC): Justin Sandberg, U.S. Department of Justice, Washington Memorandum in support of motion to dismiss: 2014 WL Thomson Reuters FEBRUARY 19, 2014 n VOLUME 28 n ISSUE 15 9

10 INFLUENZA VACCINE Nurse s $100 billion suit says government pushes toxic flu shots A nurse at an Ann Arbor, Mich., hospital who allegedly was fired for refusing a flu shot alleges in a proposed class action that the federal government has fraudulently represented that the vaccinations are safe. Bashista et al. v. St. Joseph Hospital System et al., No. 2:14-CV-10001, complaint filed (E.D. Mich., S. Div. Jan. 1, 2014). Karen Bashista seeks to recover $100 billion on behalf of millions of people nationwide who have been forced to take the influenza vaccine or face employment termination or threats to their well-being. The suit, filed in the U.S. District Court for the Eastern District of Michigan, says Bashista worked for the St. Joseph Hospital System from 2002 until 2011, when she was fired without cause for refusing a flu vaccination based on religious objections. St. Joseph, a nonprofit corporation that operates several hospitals in Michigan, said the vaccination was mandatory, but it never disclosed that policy when it hired Bashista, according to the complaint. Bashista claims that at least two other Michigan hospital operators, defendants REUTERS/Andrew Kelly People enter a pharmacy next to a sign promoting flu shots in New York. A lawsuit seeks to recover $100 billion on behalf of millions of people nationwide who have been forced to take the influenza vaccine or face employment termination or threats to their well-being. The suit says the government coerces the taking of flu shots, which are made from sources including animal parts and aborted humans, and often contain toxic mercury. Mercy Hospital Group and Trinity Health Systems, also have demanded that their employees and agents receive a flu shot or face penalties. The Michigan Department of Community Health works with the federal government to coerce the taking of flu shots, which are made from multiple sources including animal parts and aborted humans, and often contain toxic mercury, the complaint says. Federal agencies including the U.S. Centers for Disease Control and Prevention use the media to pump up citizens fear of contracting the flu, but the vaccination works only about two-thirds of the time and can actually cause the flu, according to the suit. Bashista alleges fetal death rates have risen because of filthy flu shots and that the vaccine for the H1N1 virus is suspected to cause narcolepsy. The federal government, which has incorrectly asserted the safety of vaccines in the past, will force adults to be flu-vaccinated or face ineligibility for health benefits under Obamacare starting in 2015, the complaint says. Bashista claims her employer terminated her without just cause, in violation of her employment contract and antidiscrimination laws. All of the defendants have fraudulently misrepresented that flu shots are good for all and interfered with protections of religion and speech under the U.S. and Michigan constitutions, according to the suit. Bashista seeks a declaratory judgment that the defendants violated her constitutional rights, plus $10 million in compensatory and exemplary damages, lost wages, and job restoration. She requests class certification and $100 billion in class damages. Additionally, she seeks equitable relief to force the defendants to prove the efficacy and safety of flu shots and to inform all employees of the risks of vaccination. WJ Attorney: Plaintiff: James L. Elsman, Birmingham, Mich. Complaint: 2014 WL WESTLAW JOURNAL n EMPLOYMENT 2014 Thomson Reuters

11 ASBESTOS EXPOSURE Tennessee appeals court orders judge to decide damages in asbestos case The Tennessee Court of Appeals has ruled that a trial court was wrong to order a new trial after a jury returned a verdict for the plaintiff in a railroad worker s asbestos exposure case. Payne v. CSX Transportation Inc., No. E COA-R3-CV, 2013 WL (Tenn. Ct. App. Dec. 27, 2013). The case involved rulings by two different Knox County judges in a case brought by railroad worker Winston Payne against CSX Transportation Co., according to an opinion issued by the appeals court. In the first, a jury awarded him $8.6 million but Judge Harold Wimberly granted CSX s motion for a new trial. The appeals court ordered the trial judge to act as a 13th juror and determine whether the jury s original $8.6 million damages award was justified. The second ruling occurred after the case was transferred to Judge Dale C. Workman. CSX filed a motion for summary judgment based on allegedly deficient expert testimony at the trial stage, and Judge Workman granted it, the opinion says. The appeals court set aside Judge Wimberly s decision to grant a new trial and Judge Workman s summary judgment against the railroad worker, ordering Judge Wimberly to act as a 13th juror and determine whether the jury s original $8.6 million damages award was justified. According to the opinion, Payne worked as a trainman and switchman for CSX from 1962 to He sued the railroad company for allegedly negligently exposing him to asbestos, diesel fumes and radioactive material. Payne filed his suit in the Knox County Circuit Court in 2007 after being diagnosed with lung cancer, the opinion said. During the trial, Payne admitted he smoked a pack of cigarettes a day for about 26 years and quit in 1988, according to the opinion. He died in February 2010 and his wife, Anne, was substituted as plaintiff. The jury found: CSX was negligent in causing Payne s injuries. The company violated the Federal Locomotive Inspection Act, 49 U.S.C.A Payne s own negligence caused 62 percent of the harm. Adequate compensation, without any deduction for the plaintiff s own negligence, should be $8.6 million. According to the opinion, Judge Wimberly informed the jury after the verdict that under the Federal Employers Liability Act, 45 U.S.C. 51, if the defendant violated a safety law an award is reduced by a REUTERS/Gary Cameron The plaintiff, who worked as a trainman and switchman for CSX from 1962 to 2002, sued the railroad company for exposing him to asbestos, diesel fumes and radioactive material. plaintiff s own negligence. He asked if the jury wanted to reconsider. After an eight-minute discussion, the jury returned with a revised award of $3.2 million, the opinion said. Later, when CSX moved for a judgment not withstanding the verdict or for a new trial, Judge Wimberly ordered a new trial, saying his jury instructions in particular were incomplete. The case then was transferred to Judge Workman, who granted CSX s motion to exclude the plaintiff s expert witness testimony on the cause of Payne s illness. Then, after CSX moved for a summary judgment on the basis that there was no expert testimony establishing causation, Judge Workman dismissed the case. Anne Payne appealed. The appeals court ruled that Judge Wimberly had correctly instructed the jury under provisions in FELA prior to the first verdict and award. However, the court said his sua sponte remarks to the jury after it reached a verdict and decided an award were a prejudicial abuse of discretion. Invoking a 13th juror rule, the appeals court ordered Judge Wimberly to weigh the evidence as did the jury and either approve or disapprove the jury s original $8.6 million award. If the judge disapproves the initial award as unjustified, he should enter a judgment for the revised $3.2 million award, the appeals court said. WJ Opinion: 2013 WL Thomson Reuters FEBRUARY 19, 2014 n VOLUME 28 n ISSUE 15 11

12 ASBESTOS EXPOSURE Judge revives San Quentin inmate s suit over lead paint, asbestos exposure An inmate at San Quentin State Prison may continue to pursue allegations that his supervisors at a state-operated mattress factory failed to protect him from exposure to lead paint and asbestos, a federal magistrate judge in California has ruled. Spells v. Smith et al., No. 4:13-cv-04102, 2013 WL (N.D. Cal. Dec. 27, 2013). Evert Spells amended complaint states a cognizable claim that five factory employees were deliberately indifferent to his safety and medical needs and failed to obtain asbestos testing for him, U.S. Magistrate Judge Kandis A. Westmore of the Northern District of California said. Judge Westmore granted Spells motion for reconsideration of a prior ruling dismissing his suit, but said the allegations did not support civil rights claims against four of the defendants. Spells filed suit pro se in the District Court under the Civil Rights Act, 42 U.S.C. 1983, alleging various San Quentin employees ignored dangerous conditions posed by hazardous materials at the prison mattress factory. The factory is one of 57 factories operated by the California Prison Industry Authority, which provides work assignments to inmates. The complaint says mattress factory supervisor Joe Dobie ordered Spells to remove lead-based paint from windows over several weeks in 2012 but failed to provide him with personal protective equipment. Dobie also had Spells work in an area where untrained inmate employees were using a high-pressure washer to clean pipes encased with asbestos but did not provide respirators, protective clothing or other equipment, according to the suit. Spells says he complained to factory supervisors and managers of his chronic eye problems, chest pain, coughing and headaches but was denied testing for asbestos exposure. Factory managers Gary Loredo and Philip Earley filled out fraudulent or incomplete workers compensation forms on Spells behalf that minimized the effect of his workplace asbestos exposure and barred him from obtaining future relief, the complaint says. The suit also names factory manager Jeremy Young, factory maintenance supervisor Luu Rogers, branch manager Brad Smith, factory hazmat material specialist Elizabeth Babcock, health and safety manager John Walker and correctional officer K.A. Davis. Magistrate Judge Westmore dismissed the case Oct. 11 with leave to amend. She said the complaint failed to identify which state and federal regulations the defendants allegedly violated and did not include specific allegations pertaining to each defendant. She gave Spells 21 days to correct the deficiencies in his pleading. Judge Westmore entered judgment dismissing the suit Nov. 27, the same day Spells attempted to file a first amended complaint, according to the order. Spells filed a motion for reconsideration asking the magistrate judge to review the amended complaint, which alleged Young knowingly instructed Spells to continue working in hazardous conditions and Smith made false and misleading statements about asbestos. Judge Westmore granted the motion Dec. 27, finding Spells stated a cognizable claim for relief against Dobie, Loredo, Earley, Young and Smith. Spells may also continue to pursue fraud claims against Loredo and Earley for their role in filling out his workers compensation forms, the magistrate judge said. Judge Westmore dismissed the claims against the remaining defendants, finding the amended complaint shows they attempted to rectify the situation and did not deny medical attention to Spells. WJ REUTERS/Lucy Nicholson Inmates are escorted by a guard through San Quentin State Prison in California. In a lawsuit a San Quentin inmate says his supervisor at a prison mattress factory ordered him to work in an area where employees were using a high-pressure washer to clean pipes encased with asbestos but did not provide him with protective equipment. Order: 2013 WL WESTLAW JOURNAL n EMPLOYMENT 2014 Thomson Reuters

13 ASBESTOS EXPOSURE Wisconsin appeals court revives insulation worker s asbestos suit A trial court wrongly dismissed an insulation worker s lawsuit against Wisconsin Electric Power Co. for allegedly operating an unsafe workplace that exposed him to asbestos dust, a state appeals court has ruled. Viola v. Wisconsin Electric Power Co., No. 2013AP22, 2013 WL (Wis. Ct. App. Dec. 27, 2013). The Court of Appeals, 1st District, reversed the trial court s grant of summary judgment, saying the worker presented ample evidence to claim his exposure did not stem from his own negligence or that of co-workers but rather from unsafe operating conditions at Wisconsin Electric. According to the appellate court s unpublished opinion, Robert Viola worked for independent contractors as a pipe coverer from the mid-1950s to the early 1980s, including on projects at Wisconsin Electric facilities. When Viola was diagnosed with malignant mesothelioma, an asbestos-related lung cancer, in May 2009, he sued various defendants, including Wisconsin Electric, for negligence related to his asbestos exposure. Viola claimed that he was exposed to asbestos dust at, among other locations, the power company s Oak Creek Unit 5, where he replaced asbestos-containing pipe insulation for 12 hours a day for eight months, the opinion said. After Viola died, his son Anthony, as administrator of the estate, submitted an amended complaint under Wisconsin s safe place statute, Wis. Stat , which requires employers to provide a safe workplace, according to the opinion. When the case was brought to trial in the Milwaukee County Circuit Court, Wisconsin Electric moved for a summary judgment. asbestos was necessarily disturbed as part of the maintenance and/or repair work required at the premises. The appeals court said the plaintiff s claim offered sufficient evidence to allege that Viola was exposed to asbestos dust The plaintiff claimed that he was exposed to asbestos dust when he replaced asbestos-containing pipe insulation for 12 hours a day for eight months, the opinion said. According to the opinion, the trial judge found that the amended complaint did not allege unsafe physical conditions at Wisconsin Electric but rather suggested the unsafe activity of removing and replacing insulation without proper protection caused the asbestos exposure. The judge held that the unsafe condition resulting in asbestos exposure was caused by worker negligence. The trial judge dismissed the case, saying that because the safe-place statute only governs unsafe physical conditions, not reckless or negligent acts, the claim did not allege a liability under the statute. The plaintiff appealed the ruling. The appeals court disagreed with the trial court that Viola s or his co-workers negligent actions created the unsafe conditions, saying at Wisconsin Electric facilities, that the company knew the release of asbestos dust was from the normal practice of insulating power equipment and that it was aware of the health dangers of asbestos but did not act to alleviate the exposure. Therefore, because the complaint does properly allege a claim under the safeplace statute, and because the evidence submitted does create issues of material fact, we conclude that summary judgment in Wisconsin Electric s favor is inappropriate, the appeals court said. The appeals court reversed the trial court s judgment and remanded the case for further proceedings. WJ Opinion: 2013 WL Thomson Reuters FEBRUARY 19, 2014 n VOLUME 28 n ISSUE 15 13

14 Changing clothes CONTINUED FROM PAGE 1 the body and are commonly regarded as articles of dress. The high court rejected the plaintiffs argument that a later definition of clothes, which describes covering worn for comfort, excludes protective gear. The definition does not exclude, either explicitly or implicitly, items with a protective function, since protection and comfort are not incompatible and are often synonymous, Justice Scalia wrote. Labor and employment attorney Louis R. Lessig, a partner at Brown & Connery, said in a phone interview that the high court s opinion raises interesting questions that could evolve in other industries. While the questions of clothing and equipment may be easy to answer in this industry, the tech industry and future use of Google Glass, for example, could raise new issues, Lessig said. The question of how much are workers putting on and what does it do remains after this ruling, and the answers will likely be industry-specific, he added. WORKERS SOUGHT OVERTIME Clifton Sandifer sued U.S. Steel in 2007 on behalf of production and maintenance workers at several of the company s facilities, including the largest steel mill in North America, located in Gary, Ind. The collective action alleged the company violated the FLSA, 29 U.S.C. 201, by not paying unionized workers for all hours they worked, including time spent putting on and taking off protective equipment. According to the suit, employees were required to wear safety gear, including fireretardant jackets and pants, safety goggles, earplugs, and other job-specific equipment. U.S. Steel filed a motion for summary judgment, arguing that under the collective bargaining agreement, workers were paid starting when they arrive at their assigned workstation. An Indiana federal court partially granted the company s motion, finding that time spent changing into the safety equipment was covered under Section 203(o) of the FLSA and need not be compensated. On U.S. Steel s interlocutory appeal, the 7th Circuit affirmed, citing the de minimis doctrine. The panel said that while not all the workers gear, such as safety goggles and earplugs, can be considered clothes, the time is so minimal that the FLSA does not provide for compensation. INSIGNIFICANT PERIODS OF TIME The high court rejected the 7th Circuit s application of the de minimis doctrine to specific items. All the equipment here (the protective clothing, goggles and earplugs) involve relatively insignificant periods of time, the opinion said. Justice Scalia noted that the court s definition of clothes is narrower than one proposed by several appeals courts, which would include everything needed for work. The opinion said that the time spent donning and doffing equipment, such as the goggles and earplugs, is all part of changing clothes and should not be separated from unpaid time. Finally, the court rejected the plaintiffs argument that the term changing in Section 302(o) does not include putting protective equipment over workers clothing. The Supreme Court rejected the plaintiffs bid to use a definition of clothes that describes it as covering worn for comfort but excludes protective gear. Again citing the dictionary definition, Justice Scalia said changing means both to substitute and to alter. The object of Section 203(o) is to permit collective bargaining over the compensability of clothes-changing time and to promote the predictability achieved through mutually beneficial negotiation. There can be little predictability, and hence little meaningful negotiation, if changing means only substituting, Justice Scalia wrote. WJ Attorneys: Petitioner: Eric Schnapper, University of Washington, Seattle Respondent: Lawrence C. DiNardo, Jones Day, Chicago Opinion: 2014 WL See Document Section A (P. 23) for the opinion. 14 WESTLAW JOURNAL n EMPLOYMENT 2014 Thomson Reuters

15 RECENTLY FILED COMPLAINTS FROM WESTLAW COURT WIRE* Case Name Court Docket # Filing Date Allegations Damages Sought Lalli v. General Nutrition Centers D. Mass. 3:13-cv /31/13 Class action. General Nutrition Centers stiffs workers for overtime. Class certification, liquidated damages, treble damages, interest, fees and costs Equal Employment Opportunity Commission v. NFI Industries N.D. Tex. 3:14-cv-181 1/17/14 The Equal Employment Opportunity Commission says NFI Road Rail and NFI Industries engaged in gender-based wage discrimination by paying a female director less than the salaries paid to two males for doing the same job. Declaratory judgment, permanent injunction, punitive and actual damages, interest and costs Franklin v. California Department of Transportation Cal. Super. Ct. (Sacramento) /17/14 The California Department of Transportation harassed, discriminated against and fired plaintiff in retaliation for taking protected medical leave.. Compensatory damages, back pay, reimbursement, expungement of records, lost wages, fees and costs Peralta v. LQ Management 2014 WL Cal. Super. Ct. (San Diego) /28/14 Class action. LQ Management fails to provide workers with rest breaks. Class certification, injunctive relief, disgorgement, actual damages, interest, fees and costs Tobia v. Adesa California Cal. Super. Ct. (San Diego) /28/14 Class action. Adesa California fails to pay workers earned overtime. Class certification, injunctive relief, disgorgement, actual damages, earned wages, interest, fees and costs Lucero v. Sears Holding Management Corp. Cal. Super. Ct. (San Diego) /29/14 Class action. Sears fails to pay workers earned overtime. Class certification, injunctive relief, disgorgement, actual damages, earned wages, interest, fees and costs Smith v. Sprint/United Management Co WL E.D. Cal. 2:14-cv-327 1/31/14 Class action. Sprint/United Management Co. makes employees work off-the-clock without compensation. Class certification, compensatory damages, declaratory relief, restitution, interest, fees and costs *Westlaw Court Wire is a Thomson Reuters news service that provides notice of new complaints filed in state and federal courts nationwide, sometimes within minutes of the filing Thomson Reuters FEBRUARY 19, 2014 n VOLUME 28 n ISSUE 15 15

16 RECENTLY FILED COMPLAINTS FROM WESTLAW COURT WIRE* Magee v. The Glen Mills Schools Pa. Ct. Com. Pl. (Delaware) /4/14 The Glen Mills Schools violated Pennsylvania law by retaliating and discriminating against and terminating plaintiff, who reported to state authorities that he witnessed his supervisor strike a student in the face. In excess of $50,000, interest and costs Anderson v. Chicago Housing Authority Ill. Cir. Ct. (Cook) 2014-L /6/14 Chicago Housing Authority wrongfully terminated plaintiff after he communicated with the alleged victim of sexual misconduct by a supervisor. Compensatory and punitive damages, interest, fees and costs Maor v. Guastavino s Inc. N.Y. Sup. Ct. (New York) / /7/14 Class action. Guastavino s Inc. unlawfully withheld and retained portions of the gratuities and service charges earned by employees. Class certification, monetary damages, interest, fees and costs Yanez v. Merchant Building Maintenance LLC Cal. Super. Ct. (Los Angeles) BC /7/14 Merchant Building Maintenance wrongfully terminated plaintiff in retaliation for complaining about the company s failure to pay minimum and overtime wages. General, special, punitive and compensatory damages; interest; penalties; fees and costs Chan v. The Tinsley Group Inc. Fla. Cir. Ct. (Hillsborough) 14-CA /7/14 Plaintiff s general manager at T.G.I. Friday s discriminated against her because of her age and then falsely accused her of selling prescription medication after she filed a complaint with the Equal Employment Opportunity Commission. More than $15,000, back pay and benefits, punitive damages, injunctive relief, interest, fees and costs Taras v. California Drop Forge Inc. Cal. Super. Ct. (Los Angeles) BC /10/14 California Drop Forge Inc. wrongfully terminated plaintiff because of his medical condition involving flatulence. Compensatory and punitive damages, interest, expenses, fees and costs Cooper v. Quickstart Intelligence Corp. Cal. Super. Ct. (Santa Clara) 1-14-CV /10/14 Quickstart Intelligence Corp. discriminated against plaintiff because of her gender and refused to hire her because she was pregnant. Compensatory, special, actual, nominal and punitive damages; back pay; interest; fees and costs Nizzari v. Davel Reservation System Inc. N.Y. Sup. Ct. (New York) / /10/14 Davel Reservation System violated the New York Human Rights Law by terminating plaintiff because of religion, creed and gender. No less than $25,000 in actual, compensatory and punitive damages; declaratory relief; fees and costs Mizell v. McClatchy Bros Inc. Tex. Dist. Ct. (Harris) /10/14 McClatchy Bros. terminated plaintiff after he filed a claim for benefits under the Texas Workers Compensation Act. Actual, compensatory and exemplary damages; interest; fees and costs *Westlaw Court Wire is a Thomson Reuters news service that provides notice of new complaints filed in state and federal courts nationwide, sometimes within minutes of the filing. 16 WESTLAW JOURNAL n EMPLOYMENT 2014 Thomson Reuters

17 LABOR AND PUBLIC EMPLOYMENT NEWS MATERIAL FACTUAL DISPUTES PRECLUDE SUMMARY JUDGMENT ON UNFAIR-PRACTICE CHARGE Ruling: The New Jersey Public Employment Relations Commission denied a health care employer s summary judgment motion with respect to an amended unfair-practice charge. In that charge, the union alleged that the employer violated its good-faith bargaining duty by unilaterally creating new part-time positions for registered nurses in order to alleviate overstaffing. PERC concluded that there were material facts in dispute and that it was unable to weigh the parties interests. What it means: Under New Jersey and PERC case law concerning work schedule negotiability, the work schedules of individual employees are generally held to be mandatorily negotiable, unless the facts prove a particularized need to preserve or change a work schedule to effectuate governmental policy. University of Medicine and Dentistry of New Jersey and Health Professionals and Allied Employees, Local 5089, 40 NJPER 108 (N.J. Pub. Employment Relations Comm n Dec. 19, 2013). PERB INTERPRETS MMBA SECTION IN DISMISSING UNFAIR-PRACTICE CHARGE Ruling: The California Public Employment Relations Board adopted the chief administrative law judge s dismissal of an unfair-practice charge, despite the individual charging party s contention that the employer, a water district, violated Meyers-Milias-Brown Act provisions by denying his request for reclassification. PERB determined that the charging party engaged in conduct protected by MMBA Section The board engaged in an extensive interpretation of MMBA Section PERB concluded that, absent a demonstration that the employer was aware of charging party s protected activity, the charge must be dismissed. What it means: PERB interpreted the terms of MMBA Section , which specifically prohibits public employers from taking punitive actions, denying promotions or threatening to take such actions against an employee for the exercise of lawful action as an elected, appointed, or recognized representative of any employee bargaining unit. PERB found that, by enacting this statutory provision, the state Legislature wished to clarify and reinforce the rights of employees guaranteed by the MMBA. Coleman v. Santa Clara Valley Water District, 38 PERC 96 (Cal. Pub. Employment Relations Bd. Dec. 19, 2013). ON REMAND, PERC MUST RECONSIDER DISPUTE OVER CITY S DECLARATION OF FINANCIAL URGENCY Ruling: The Florida 4th District Court of Appeal reversed a Public Employees Relations Commission majority s dismissal of an unfairpractice charge. In that dismissal, the PERC majority determined that a municipal employer committed no unfair practice by declaring financial urgency pursuant to Fla. Stat The appeals court decided that PERC erred in failing to apply a portion of the test enumerated in Chiles v. United Faculty of Florida, 615 So. 2d 671 (Fla. 1993). The court remanded the case with directions for PERC to apply the Chiles standard in determining whether the employer engaged in an unfair practice. What it means: The appeals court noted that district courts may not alter the holding of Chiles with respect to the government s authority to impair a contract and violate the union s right to collectively bargain (see Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)). Hollywood Fire Fighters, Local 1375 v. City of Hollywood, 40 FPER 239 (Fla. 4th Dist. Ct. App. Jan. 8, 2014). CARE FACILITY PROPERLY DISCHARGED EMPLOYEES WHO DELAYED IN REPORTING ABUSE Ruling: The Michigan Employment Relations Commission adopted an administrative law judge s recommended dismissal of an unfairpractice charge, in which a registered nurse and a social worker at a long-term-care facility disputed their respective terminations. The employer discharged the workers after a resident s abuse allegations were reported to the state in an untimely manner. MERC agreed with the ALJ s conclusion that the workers respective terminations comported with Public Employment Relations Act provisions because they were discharged for misconduct rather than any protected concerted activity. It concluded that the employer s no-discussion directive for employees also comported with PERA provisions. What it means: In determining whether a public employer s statement constitutes a violation of PERA Section 10(1)(a), both the content and context of the employer s statement must be examined. The test is whether a reasonable employee would interpret the statement as an express or implied threat. Grandvue Medical Care Facility and Renkiewicz et al., 27 MPER 37 (Mich. Employment Relations Comm n Dec. 16, 2013) Thomson Reuters FEBRUARY 19, 2014 n VOLUME 28 n ISSUE 15 17

18 LABOR AND PUBLIC EMPLOYMENT NEWS COURT FINDS OFFICER S EXPLETIVE-LADEN TIRADE SUPPORTS DISPARATE DISCIPLINE Ruling: The Pennsylvania Commonwealth Court found insufficient evidence to support the determination of the state Civil Service Commission that a police officer s five-day suspension for initiating an expletive-laden public exchange with a co-worker was arbitrary, discriminatory and an abuse of discretion. What it means: The appellate court determined the commission exceeded its authority when it reduced the penalty to a letter of reprimand because there was no evidence that the five-day suspension was punitive or in retaliation for the officer s request for an investigation into a co-worker s failure to respond to a gun call. Municipality of Bethel Park v. Bethel Park Civil Service Commission, 45 PPER 75 (Pa. Commw. Ct. Jan. 27, 2014). RETROACTIVE SUSPENSION, NOT REMOVAL, APPROPRIATE FOR JAILED EMPLOYEE, COURT RULES Ruling: The Pennsylvania Commonwealth Court affirmed the decision of the state Civil Service Commission to reverse a state employer s removal of a senior civil engineer supervisor for violating the employer s AWOL policy. Based on record evidence that several extraordinary circumstances led to the employee s extended absence from work his arrest for violating a protection-from-abuse order and the 13-day wait for arraignment following an out-of-state second arrest the appellate court concluded the supervisor missed eight days of work because of circumstances beyond his control. Therefore, the court reasoned that the commission properly reversed the removal decision and ordered the employee retroactively suspended without pay pending the investigation and final resolution of charges filed against him. What it means: The employer failed to establish just cause for the employee s removal because the eight days of missed work occurred during a period when the employee was subject to suspension under the Governor s Code, and thus if suspended would not be considered AWOL during the majority of the period in question. Pennsylvania Department of Transportation v. State Civil Service Commission, 45 PPER 77 (Pa. Commw. Ct. Jan. 28, 2014). PA. APPELLATE COURT ENJOINS EXTRA DUTY ASSIGNMENTS BY SHERIFF S DEPARTMENT Ruling: A Pennsylvania Commonwealth Court majority affirmed a trial court s order preliminarily enjoining a county sheriff s department and its deputy sheriffs from performing official services and duties for outside entities. The court concluded the performance of those extra duty assignments violated Section 1210(a) of the County Code, which prohibits deputy sheriffs from performing extra duty assignments, including law enforcement or security work, for outside persons, associations or corporations. Although the county sheriffs association argued the county did not suffer irreparable harm for purposes of a preliminary injunction, the appellate court found reasonable grounds to support the trial court s issuance of the preliminary injunction. What it means: Injunctive relief is appropriate if the injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages, and if a greater injury would result from refusing to grant the injunction. Here, the deputy sheriffs performed the extra duty assignments in uniform, using the department s marked vehicles, and the department paid the deputies at their regular overtime rate. Although the County Code does not define period of official services, the appellate court determined that the use of department equipment in the performance of services for outside entities, while in uniform, constituted the performance of official services. Therefore, the lower court had reasonable grounds for determining that the county was likely to prevail on the issue of whether the extra duty assignments violated the County Code. Beaver County v. Beaver County Deputy Sheriffs Association, 45 PPER 74 (Pa. Commw. Ct. Jan. 7, 2014) LOW GROSS REVENUES BRING MEDICAL MARIJUANA DISPENSARY OUTSIDE NLRB S JURISDICTION Ruling: The National Labor Relations Board Division of Advice recommended the declination of jurisdiction over an enterprise in the medical marijuana industry, ruling the enterprise did not meet the $500,000 threshold needed to meet the NLRB s monetary jurisdictional standards and was not liable as a Golden State successor because the predecessor employer, A List MMJ, did not meet the board s jurisdictional standards. Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973). What it means: The limited earnings of the predecessor employer, which had gone out of business, could not be projected or combined with the successor s revenue for purposes of asserting jurisdiction. A List MMJ, 41 NLRB AMR 26 (N.L.R.B. Dec. 16, 2013). 18 WESTLAW JOURNAL n EMPLOYMENT 2014 Thomson Reuters

19 NEWS IN BRIEF POSTAL SERVICE CONTRACTOR TO PAY $2 MILLION IN UNPAID 401(K) BENEFITS A government contractor has agreed to restore nearly $2 million to the 401(k) pension plans of more than 500 drivers who worked on a contract with the U.S. Postal Service, according to a Jan. 14 statement by the Department of Labor. According to the department, an investigation by the agency s wage and hour division in San Francisco found that Lange Trucking Inc. failed to fully fund the retirement plan. Hoovestol Inc., which has since acquired the trucking company, has agreed to restore the funds, correct record-keeping processes and ensure timely benefit payments going forward. Because of the funding violations, Lange and its executives are ineligible for government contracts for three years, the Labor Department said. CARGILL AGREES TO PAY $2.2 MILLION OVER DISCRIMINATION CHARGES Cargill Meat Solutions has agreed to pay $2.2 million in back pay to settle Labor Department charges its hiring practices discriminated based on race and sex. According to a Jan. 22 Labor Department statement, Cargill Meat discriminated against nearly 3,000 female white, Hispanic and black job applicants at its facilities in Illinois, Arkansas and Colorado between 2005 and In addition to the back pay and interest, the company has agreed to provide 354 job offers to the rejected applicants as production positions become available. Cargill has held more than $1.4 billion worth of government contracts since 2005, the Labor Department statement said. J.C. PENNEY SETTLES PREGNANCY DISCRIMINATION SUIT Retailer J.C. Penney Corp. has agreed to pay $40,000 to settle Equal Employment Opportunity Commission charges it discriminated against a pregnant job applicant. The EEOC sued the company in Georgia federal court, alleging it failed to hire an applicant for a hair salon position in its Brunswick, Ga., store after she told the manager that she was pregnant. In addition to the monetary payment, the consent decree settling the suit calls for J.C. Penney to provide antidiscrimination training, according to a Jan. 16 statement by the EEOC. PLAINTIFFS, DAMAGES ADDED TO MERCK DISCRIMINATION SUIT A federal class-action lawsuit that says Merck & Co. discriminates against female sales representatives is now worth $250 million in damages and seeks to represent a class of thousands of women. An amended complaint filed Jan. 16 added four named plaintiffs and higher damages to the suit against the New Jersey-based pharmaceutical giant. The suit, filed last May in Trenton federal court, named one former female Merck employee and listed damages as simply exceeding $100 million. The suit alleges Merck female sales representatives face discrimination and retaliation for pregnancy leaves, including lower pay and fewer promotions. Merck s sales incentive plan, which ties manager and sales division compensation to sales figures, encourages discrimination against women, the suit says. The suit seeks back pay, lost benefits and damages for a class of past and present female sales representatives employed by Merck since October Smith v. Merck & Co., No , amended complaint filed (D.N.J. Jan. 16, 2014). Amended complaint: 2014 WL AEROSPACE COMPANY FIRED WORKERS WITHOUT WARNING, SUIT SAYS AAR Manufacturing Inc. fired 33 percent of the workforce at its Huntsville, Ala., facility in the last 90 days of 2013 without warning, as required by the Worker Adjustment and Retraining Notification Act, an Alabama federal court class action says. According to the complaint, plaintiff Barry Wright was fired from his job as an AAR assembly worker, with many other employees, on Dec. 30 without warning. The company conducted a similar mass layoff in October, the suit says. The suit alleges AAR management knew it was going to reduce the workforce, as the layoffs were not a result of unforeseen business circumstances or a natural disaster. Wright seeks back pay and benefits, plus injunctive relief, on behalf of a proposed class of thousands of AAR workers fired in the last 90 days of Wright v. AAR Manufacturing Inc., No , complaint filed (N.D. Ala. Jan. 14, 2014). Complaint: 2014 WL Thomson Reuters FEBRUARY 19, 2014 n VOLUME 28 n ISSUE 15 19

20 CASE AND DOCUMENT INDEX A List MMJ, 41 NLRB AMR 26 (N.L.R.B. Dec. 16, 2013) Bashista et al. v. St. Joseph Hospital System et al., No. 2:14-CV-10001, complaint filed (E.D. Mich., S. Div. Jan. 1, 2014) Beaver County v. Beaver County Deputy Sheriffs Association, 45 PPER 74 (Pa. Commw. Ct. Jan. 7, Coleman v. Santa Clara Valley Water District, 38 PERC 96 (Cal. Pub. Employment Relations Bd. Dec. 19, 2013)...17 Grandvue Medical Care Facility and Renkiewicz et al., 27 MPER 37 (Mich. Employment Relations Comm n Dec. 16, 2013)...17 Hawkins v. TACA International Airlines S.A. et al., No. B242769, 2014 WL (Cal. Ct. App., 2d Dist., Div. 4 Jan. 27, 2014)... 7 Document Section B...31 Hollywood Fire Fighters, Local 1375 v. City of Hollywood, 40 FPER 239 (Fla. 4th Dist. Ct. App. Jan. 8, 2014)...17 Lacy T. et al. v. Oakland Raiders et al., No. RG , amended complaint filed (Cal. Super. Ct., Alameda County Feb. 4, 2014)...8 Municipality of Bethel Park v. Bethel Park Civil Service Commission, 45 PPER 75 (Pa. Commw. Ct. Jan. 27, 2014) Payne v. CSX Transportation Inc., No. E COA-R3-CV, 2013 WL (Tenn. Ct. App. Dec. 27, 2013) Pennsylvania Department of Transportation v. State Civil Service Commission, 45 PPER 77 (Pa. Commw. Ct. Jan. 28, 2014) Sandifer et al. v. U.S. Steel Corp., No , 2014 WL (U.S. Jan. 27, 2014)...1 Document Section A...23 Smith v. Merck & Co., No , amended complaint filed (D.N.J. Jan. 16, 2014) Spells v. Smith et al., No. 4:13-cv-04102, 2013 WL (N.D. Cal. Dec. 27, 2013) State v. Equal Employment Opportunity Commission et al., No , motion to dismiss filed (N.D. Tex., Lubbock Div. Jan. 27, 2014)...9 University of Medicine and Dentistry of New Jersey and Health Professionals and Allied Employees, Local 5089, 40 NJPER 108 (N.J. Pub. Employment Relations Comm n Dec. 19, 2013)...17 Viola v. Wisconsin Electric Power Co., No. 2013AP22, 2013 WL (Wis. Ct. App. Dec. 27, 2013)...13 Whitley v. Siemens Industry Inc. et al., No , complaint filed (E.D. Cal. Jan. 15, 2014)...9 Wright v. AAR Manufacturing Inc., No , complaint filed (N.D. Ala. Jan. 14, 2014) WESTLAW JOURNAL n EMPLOYMENT 2014 Thomson Reuters