Articles Posted in Labor & Employment Law

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Milwaukee County hired Thicklen in 2012 as a jail corrections officer. A zero-tolerance policy forbids corrections officers from having any sexual contact with inmates. The county repeatedly instructed Thicklen not to engage in any such contact and trained him to avoid it. Thicklen gave answers to quizzes indicating he understood the training. He nonetheless raped Shonda Martin in jail. Martin sued him and sued the county for indemnification under Wisconsin Statute 895.46. A jury awarded her $6,700,000 against the county, finding that the assaults were in the scope of employment. The Seventh Circuit reversed. Even viewing the evidence in the light most favorable to Martin and the verdict, no reasonable jury could find the sexual assaults were in the scope of Thicklen’s employment; that the sexual assaults were natural, connected, ordinary parts or incidents of contemplated services; that the assaults were of the same or similar kind of conduct as that Thicklen was employed to perform; or that the assaults were actuated even to a slight degree by a purpose to serve County. No reasonable jury could even regard the sexual assaults as improper methods of carrying out employment objectives. Martin presented no evidence that his training was deficient or that Thicklen did not understand it. View "Martin v. Milwaukee County" on Justia Law

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In 2015, Wis. Stat. 111.01, changed many provisions of state labor laws. One provision purported to change the rules for payroll deductions that allow employees to pay union dues through dues‐checkoff authorizations. By signing an authorization, the employee directs the employer to deduct union dues or fees routinely from the employee’s paycheck and to remit those funds to the applicable union. The union itself is not a party to the authorization, which is effective if and only if the employee wishes. Federal law allows unions to bargain collectively with employers over the standard terms of dues‐checkoff authorizations: the authorization must be individual for each employee, in writing, and irrevocable for no longer than one year, 29 U.S.C. 186(a)(2), (c)(4). Wisconsin attempted to shorten this maximum period to 30 days. The district court found the matter preempted by federal law and issued a permanent injunction barring enforcement of the provision. The Seventh Circuit affirmed, citing the Supreme Court’s summary affirmance in a case finding a nearly identical state law preempted. Wisconsin’s attempt to short‐circuit the collective bargaining process and to impose a different dues‐checkoff standard is preempted by federal law. View "International Association of Machinists District 10 v. Allen" on Justia Law

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Hotel Coleman owned a Holiday Inn Express franchise. Vaughn ran daily operations, including hiring, supervising, and discharging employees, and determining compensation. Frey and other Hotel workers were on Hotel Coleman’s payroll; the management agreement stated that all personnel “are in the employ of” the Hotel. Vaughn hired Frey in 2008. Frey alleged that Vaughn subjected her to unwelcome sexual comments and advances. Frey objected and complained to the housekeeping manager, but the behavior went unchecked. After Frey informed Vaughn that she was pregnant, Vaughn reduced her hours and took other steps in retaliation. During Frey’s maternity leave, she filed a charge with the EEOC. One week after she returned from leave, Vaughn fired her for allegedly stealing another employee’s phone. Frey sued under Title VII of the Civil Rights Act, 42 U.S.C. 2000e. The court accepted Vaughn’s argument that it was not an employer; granted Vaughn summary judgment on Frey’s sexual harassment, pregnancy discrimination, and Title VII retaliation claims; and entered summary judgment against Hotel Coleman. A jury awarded Frey $45,000 in compensatory damages; the court awarded her $13,520 in back pay. The Seventh Circuit vacated, finding that Vaughn was a joint employer. The existence of a joint employment relationship is analyzed under an “economic realities” test which considers the extent of the employer’s control over the worker; the kind of occupation and skill required; responsibility for the costs of operation; method of payment and benefits; and length of job commitment or expectations. View "Frey v. Hotel Coleman" on Justia Law

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Suppo, a Costco employee, was stalked by Thompson, a Costco customer, and secured a plenary no-contact order from an Illinois state court. Traumatized by the experience, she also took an unpaid medical leave. When she did not return to work, Costco terminated her employment. The Equal Employment Opportunity Commission (EEOC) sued Costco on Suppo’s behalf, alleging that Costco had subjected her to a hostile work environment by tolerating Thompson’s harassment. After the jury rendered a verdict in the EEOC’s favor. The Seventh Circuit affirmed in part. A reasonable jury could conclude that Thompson’s conduct was severe or pervasive enough to render Suppo’s work environment hostile. Suppo cannot recover backpay for the period of time after Costco fired her, but the court should have considered whether Suppo was entitled to backpay for some or all of her time on unpaid medical leave. View "Equal Employment Opportunity Commission v. Costco Wholesale Corp." on Justia Law

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Cleven worked as a City of Madison stagehand, classified as an independent contractor and not enrolled in the Wisconsin Retirement System. In 2006, a union sought to represent the stagehands. The Employment Relations Commission found that they were not independent contractors and ordered an election. The city agreed to review the stagehands’ hours to determine whether they qualified for enrollment in the System, determined that Cleven qualified as of December 2009, and agreed to pay the stagehands’ share of the required contribution starting in 2010. There was no agreement concerning the period before the labor agreement. The state Employee Trust Funds Board concluded that Cleven was eligible to enroll in 1983, but declined to decide who was responsible for paying the past‐due employee contribution. State courts declined his efforts to seek judicial review. In the meantime, the city did not report his hours and earnings. Cleven sought mandamus relief. In 2016, the state court ordered the city to “immediately” report his enrollment as a participating employee as of 1983. The city complied; the System invoiced the city for the employer and employee contributions. After the city paid, it joined parallel litigation about whether the stagehands owed the past‐due employee contribution; its appeal is pending. Cleven sued the city and city employees under 42 U.S.C. 1983, alleging that they violated his due process rights because he wanted to retire in 2011, but the delay in reporting his hours forced him to wait until 2016, holding his benefits "hostage” without a pre-deprivation hearing. The Seventh Circuit affirmed summary judgment for the city. If there was a deprivation of property, Cleven’s ability to seek a writ of mandamus was adequate post-deprivation process. View "Cleven v. Soglin" on Justia Law

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In 2008 Indiana University hired Haynes, who is black, as an assistant professor, funding most of his salary through the Strategic Recruitment Fund, which facilitates "recruitment of underrepresented minorities and women into the professoriate.” Haynes had a six-year probationary contract. Tenure candidates are evaluated on research, teaching, and service and must be “excellent” in one area and “satisfactory” in the others. In 2013, Haynes submitted his tenure dossier, selecting research as his "excellence" performance area. The committee voted 6–3 against tenure. The dean wrote that “the committee questioned the extent of Dr. Haynes’[s] impact based on low citation numbers and low numbers of publications in high-quality journals” and that Haynes’s “evaluations ha[d] been mixed[] and particularly low in the online courses” and failed to show “significant improvement.” The university-wide Tenure Advisory Committee voted unanimously against tenure; 18 of 27 faculty members found his teaching unsatisfactory and 19 found his research not excellent. Haynes sued under the Civil Rights Act of 1866, 42 U.S.C. 1981, and the Civil Rights Act of 1964, 42 U.S.C. 2000e. The Seventh Circuit affirmed summary judgment in favor of the University, upholding the exclusion of Haynes’s proffered expert reports for lack of “specialized knowledge.” A plaintiff needs compelling evidence that “clear discrimination” pervasively infected the tenure decision; this case was “not a close one.” Regardless of the finer points of academic tenure and its intersection with anti-discrimination law. Haynes lacks any evidence that the University denied tenure because he is black. View "Haynes v. Indiana University" on Justia Law

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Allied offered Robertson a job, but ran a background check before she reported to work. Under the Fair Credit Reporting Act (FCRA) 15 U.S.C. 1681a(d)(1), Robertson claims that Allied violated a requirement to notify her “clear[ly] and conspicuous[ly],” in writing, unadorned by additional information, of its intent to obtain the report and to secure her consent (notice claim). Non‐conviction information appeared in Robertson’s background check. Allied revoked its offer. An employer that relies on a background check for an adverse employment decision must provide the applicant with a copy of the report and a written description of her rights under FCRA before acting. Allied provided neither (adverse action claim). After mediation, the parties reached a tentative settlement. Months later, the Supreme Court held that federal jurisdiction exists only if the plaintiff has alleged an injury that is concrete and particular. Months later, Robertson moved under Federal Rule of Civil Procedure 23(e) for preliminary approval of the settlement and for certification of two settlement classes. The court rejected, as “simply wrong,” Robertson’s assertion that it could approve the settlement without jurisdiction over the underlying case and dismissed the case for lack of standing. The Seventh Circuit reversed as to the adverse action claim. Allied’s alleged violations of the Act caused Robertson concrete injury. Dismissal of the notice claim was proper because authority to adjudicate must exist before a court can resolve the case, even if that resolution is only a Rule 23(e) fairness hearing, followed by approval of a settlement. View "Robertson v. Allied Solutions, LLC" on Justia Law

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Sloan began working for the Association in 2014. She received multiple merit raises. In 2016 she was promoted, making her an exempt salaried employee under the Fair Labor Standards Act (FLSA), 29 U.S.C. 213. Sloan’s relationship with Wilson, the Association’s president-CEO, deteriorated. Wilson became confrontational, unfairly criticized Sloan, and antagonized her in front of colleagues. At a meeting, Wilson asserted that Sloan “bring[s] [her] personal problems to work.” Sloan complained that the Association did not have a human resources department to help resolve the conflict. Wilson sent Sloan home and informed Sloan that she was suspended for six days without pay. Sloan stated, “I don’t even know if you can do this.” Wilson replied: “I’m the President ... I can do whatever I want.” Days later, Sloan emailed the Board of Directors, stating that she believed Wilson’s actions violated federal law and attacking Wilson’s leadership. Sloan's attorney emailed the Board regarding “potential legal claims” and “actionable defamation.” Wilson sent an email to the entire staff stating that "Sloan is no longer employed. Sloan alleged that she was fired in violation of the FLSA’s anti-retaliation provision. The Seventh Circuit affirmed the dismissal of the suit. Sloan attacked the substantive basis for her suspension, criticized Wilson’s leadership, and protested the absence of a human-resources department. These complaints expressed Sloan’s frustrations with Wilson and the Association, but no reasonable employer would recognize them as assertions of FLSA-protected rights concerning wages and hours. View "Sloan v. American Brain Tumor Association" on Justia Law

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Rowlands worked at the UPS for 25 years before she was fired in 2012, for changing her time card. Rowlands filed an EEOC Charge and a union grievance. She was reinstated. Rowlands had suffered several injuries, starting in 2005 when she was hit by a semi-truck and needed a hip replacement. Immediately before her firing, Rowlands suffered three knee injuries, one at work, and required surgery. Rowlands returned to work but her employee ID was never reactivated and UPS allegedly established new rules that applied only to Rowlands. Rowlands claims that she requested accommodations for her knee injuries, which were not granted. In January 2013 Rowlands was fired for violating UPS’ “zero tolerance” Violence Prevention Policy by brandishing a taser before she walked to the distant, dimly-lit parking lot. Rowlands’ coworkers corroborated that for 10 years she had carried the taser as personal protection. Rowlands’ car had been broken into twice. According to her co-workers, other employees carried similar devices on a regular basis, believing that the Policy prohibited only firearms. The district court rejected her suit under the Americans with Disabilities Act, 14 U.S.C. 12111 on summary judgment, finding that she did not have a disability, had waived her failure to accommodate claim and failed to establish a prima facie case for retaliation. The Seventh Circuit reversed. There are genuine disputes of material fact on Rowlands’ failure to accommodate and retaliation claims, neither of which were waived. View "Rowlands v. United Parcel Service, Inc." on Justia Law

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For more than 50 years, Caterpillar paid unemployment benefits to laid-off employees at its Joliet, Illinois manufacturing plant. Caterpillar and the local union agreed to end the program in their 2012 collective-bargaining agreement. In exchange for the elimination of the benefits, Caterpillar distributed $7.8 million to certain employees who had participated in the plan. Retirement-eligible employees received a pro rata share if they agreed to retire. Those who were ineligible to retire received the same pro rata share of the fund but with no strings attached. O’Brien and 47 other retirement-eligible employees who refused to retire brought suit under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 621. The Seventh Circuit affirmed summary judgment for Caterpillar,. Though the liquidation plan has a disparate impact on older workers, it was justified by several “reasonable factors other than age.” The plan achieved one of Caterpillar’s long-standing financial objectives— the elimination of costly unemployment benefits. It also saved money by incentivizing early retirement and reducing administrative expenses, and contributed to labor peace between Caterpillar and the union. View "O'Brien v. Caterpillar Inc." on Justia Law