Westlaw Topical Highlights: Labor and Employment, August 21, 2013

August 21, 2013

Labor and EmploymentTopical Highlights for Labor and Employment provides summaries of significant federal and state judicial decisions and legislative and administrative activities affecting labor and employment law. A Westlaw subscription is required to access the documents linked from this page.

Privileges: Police officers’ assertion of mental anguish claims in employment discrimination action did not waive physician privilege.  Kennedy v. Municipality of Anchorage, 2013 WL 4399118  (Alaska).  Two police officers’ garden-variety mental anguish claims in an employment discrimination action against a municipality did not waive the physician and psychotherapist privilege. The Alaska Supreme Court noted that garden-variety claims were sufficiently limited in scope to alleviate defendants’ concerns regarding fairness to defendants. Further, wide-ranging inquiry into an individual’s medical and psychiatric history could have deterred legitimate discrimination claims. Finally, litigants should not have been forced to choose between disclosing highly personal medical information and asserting claims for distress that any healthy individual would have likely suffered as a result of discrimination. This was an issue of first impression. 2013 WL 4399118   (The full-texts of the rest of the Topical Highlights are available within Westlaw Next, subscription required).

 Benefit Plans: Side letters that “capped” employer’s contribution toward cost of retiree health care benefits were not part of prior CBA.  Tackett v. M & G Polymers USA, LLC 2013 WL 4045989 (C.A.6 (Ohio)).

 Public Employment: Federal employee showed that her medical condition rendered her unable to work, as required to entitle her to disability retirement.  Bemiller v. Office of Personnel Management 2013 WL 4069469 (M.S.P.B.)

Discrimination: Offering correctional officer a transfer from sex offender unit of youth facility was reasonable remedy for harassment by inmate.   Puskas v. Pine Hills Youth Correctional Facility 2013 WL 4080726 (Mont.)

Public Employment: Provision of the Whistleblower Protection Enhancement Act providing for compensatory damages did not apply retroactively. King v. Department of Air Force 2013 WL 4083292 (M.S.P.B.)

Arbitration: Port authority was entitled to reserve right to appeal imposition of interest arbitration with union.  Fraternal Order of Police, Penn-Jersey Lodge 30 v. Delaware River Port Authority 2013 WL 3786293 (D.N.J.)

Arbitration: Labor arbitration had res judicata effect precluding wrongful termination cause of action.  Wade v. Ports America Management Corp. 2013 WL 3963965 (Cal.App. 2 Dist.)

Workers’ Compensation: Questions were certified regarding workers’ compensation carrier’s subrogation rights when multiple beneficiaries recovered from third-party tortfeasors.  Carty v. State Office of Risk Management 2013 WL 4234029 (C.A.5 (Tex.))

Hours and Wages: Construction laborers’ FLSA collective action was conditionally certified for three-year period based on willfulness.  Ramirez v. Ghilotti Bros. Inc. 2013 WL 1786636 (N.D.Cal.)

Discrimination: African-American job applicants had right to intervene in EEOC race discrimination action filed on their behalf.  E.E.O.C. v. Stone Pony Pizza, Inc. 2013 WL 4046643 (N.D.Miss.)

Arbitration: Employer waived its right to arbitrate former employee’s wrongful termination claims. Cole v. Jersey City Medical Center 2013 WL 4081057 (N.J.)

Transportation Workers: Federal air marshall had no due process rights with respect to procedures used to suspend his security clearance.  Gargiulo v. Department of Homeland Sec. 2013 WL 4258098 (C.A.Fed.)

 Public Employment: Federal employee was entitled to introduce evidence of retaliation in proceedings on whistleblower claim.  Herman v. Department of Justice 2013 WL 4047532 (M.S.P.B.)

Public Employment: Civil Service Retirement System (CSRS) survivor annuity could not be reduced based on eligibility for Social Security Administration (SSA) survivor benefits.  Hughes v. Office of Personnel Management 2013 WL 4131224 (M.S.P.B.)

Benefit Plans: Employer’s package of insurance benefits constituted a unitary ERISA plan.  Gross v. Sun Life Assur. Co. of Canada 2013 WL 4305006 (C.A.1 (Mass.))

Collective Bargaining: Bus drivers did not have to seek arbitration pursuant to CBAs’ grievance provisions before proceeding with their FLSA claim.  Bell v. Southeastern Pennsylvania Transp. Authority 2013 WL 4405690 (C.A.3 (Pa.))

Workers’ Compensation: Commissioner erred in concluding that AMA Guides precluded consideration of any evidence of impairment associated with CRPS.  Brown v. W.T. Martin Plumbing & Heating, Inc. 2013 WL 3110140 (Vt.)

Hours and Wages: Employees were entitled to overtime pay at one-half their regular rate of pay under fluctuating workweek damages method.  Ransom v. M. Patel Enterprises, Inc. 2013 WL 4402983 (C.A.5 (Tex.))

Public Employment: Finding of due process violation in federal agency’s removal of employee was required to be supported by showing that official relied on ex parte information.  Bennett v. Department of Justice 2013 WL 4399239 (M.S.P.B.)

Public Employment: Former federal employee sufficiently exhausted administrative remedies on race discrimination claim against agency.  Ortiz-Diaz v. U.S. Dept. of Housing and Urban Development 2013 WL 4400386 (D.D.C.)

Public Employment: Federal agency did not violate Veterans Employment Opportunities Act of 1998 (VEOA).  Asatov v. Agency for Intern. Development 2013 WL 4399240 (M.S.P.B.)