Westlaw Topical Highlights: Labor and Employment, July 10, 2013

July 10, 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.

Hours and Wages: Under statute regarding gratuities, employees with limited supervisory duties may participate in employer-mandated tip pools.  Barenboim v. Starbucks Corp. 2013 WL 3197602 (N.Y.)  Under the Labor Law statute governing gratuities, and pursuant to a New York Department of Labor (DOL) wage order and its reasonable and consistent application of that order, an employee whose personal service to patrons is a principal or regular part of his or her duties may participate in an employer-mandated tip allocation arrangement, even if that employee possesses limited supervisory responsibilities. However, an employee granted meaningful authority or control over subordinates is no longer similar to a waiter or busboy within the meaning of that statute and, consequently, is not eligible to participate in the tip pool. Such authority and control includes the ability to discipline subordinates, assist in performance evaluations or participate in the hiring or firing process, and have input in the creation of employee work schedules. This decision may not yet be released for publication. 2013 WL 3197602  (The full-texts of the rest of the Topical Highlights are available within Westlaw Next, subscription required).

Benefit Plans: Subjective evidence is more than ample to establish a disability under an ERISA plan, if believed.  Miles v. Principal Life Ins. Co. 2013 WL 3197996 (C.A.2 (N.Y.))

Hours and Wages: Employer had not shown plain and unmistakable application of Motor Carrier Act (MCA) exemption to FLSA overtime requirement.  Foreman v. Five Star Food Service, Inc. 2013 WL 3187081 (M.D.Tenn.)

Benefit Plans: Denial of dependent-life-benefits insurance plan benefits upon the death of a common-law spouse was arbitrary and capricious.  Moore v. Metropolitan Life Ins. Co. 2013 WL 2555475 (M.D.Ala.)

Unions: Employer’s assistance to union organizing as prohibited “thing of value” under Labor Management Relations Act—Certiorari Granted Unite Here Local 355 v. Mulhall 2013 WL 3155255 (U.S.)

Public Employment: ALJ’s APA claims dealt with “personnel actions” that fell within exclusive scope of Civil Service Reform Act.  Mahoney v. Donovan 2013 WL 3239663 (C.A.D.C.)

Arbitration: Arbitration agreement rolled out at conditional certification stage of FLSA collective action was unenforceable.  Billingsley v. Citi Trends, Inc. 2013 WL 2350163 (N.D.Ala.)

Jurisdiction: Removal outside of two 30-day periods specified in CAFA was not barred.  Roth v. CHA Hollywood Medical Center, L.P. 2013 WL 3214941 (C.A.9 (Cal.))

Whistleblowing: Provisions of Whistleblower Protection Act clarifying what is a protected “disclosure” applied retroactively.  Day v. Department of Homeland Sec. 2013 WL 3204514 (M.S.P.B.)

Hours and Wages: DOL regulations prohibiting employers from including non-tipped employees in tip pool were invalid under .  Oregon Restaurant and Lodging v. Solis 2013 WL 2468298 (D.Or.)

Hours and Wages: Under three-prong test, work on city-owned vessels qualified as “public works” to which prevailing wage law applied.  De La Cruz v. Caddell Dry Dock & Repair Co., Inc. 2013 WL 3213308 (N.Y.)

Workers’ Compensation: Retroactive application of amendments to Black Lung Benefits Act (BLBA) did not violate due process.  U.S. Steel Min. Co., LLC v. Director, OWCP 2013 WL 3213132 (C.A.11)

Arbitration: Arbitration agreement in employment contract was not substantively unconscionable.  Leos v. Darden Restaurants, Inc. 2013 WL 3179157 (Cal.App. 2 Dist.)

Hours and Wages: Motion picture distribution company was unpaid interns’ joint employer under the FLSA and New York Labor Law.  Glatt v. Fox Searchlight Pictures Inc. 2013 WL 2495140 (S.D.N.Y.)

Workers’ Compensation: Coal miner could be allowed to establish previously deficient element through change in applicable law.  Consolidation Coal Co. v. Director, Office of Workers’ Compensation Programs 2013 WL 3215666 (C.A.7)

Discrimination: Release of terminated employee’s claims under ADA, ERISA, and NJLAD was valid under “totality of the circumstances” test.  Recchia v. Kellogg Co. 2013 WL 3214931 (D.N.J.)

Benefit Plans: ERISA participant was not entitled to equitable tolling of contractual limitations period due to lack of diligence.  Engleson v. Unum Life Ins. Co. of America 2013 WL 3336741 (C.A.6 (Ohio))

Workers’ Compensation: Subsequent automatic survivors benefit claims arose from operative facts that were separate and distinct from initial claims.  Union Carbide Corp. v. Richards 2013 WL 3358994 (C.A.4)

Public Employment: Puerto Rico Ports Authority (PRPA) employee stated plausible First Amendment political discrimination claim under § 1983.  Falcon-Cuevas v. Puerto Rico Ports Authority 2013 WL 3270420 (D.Puerto Rico)

Workers’ Compensation: Payment of SEB interrupted prescription as to injured worker’s claim to recover TTD benefits.  Paul v. Jefferson Parish Public School System 2013 WL 3336721 (La.App. 5 Cir.)

Whistleblowing: Thirty-day time limitation in whistleblower statute did not deprive referee of subject matter jurisdiction to hear claims.  Commissioner of Mental Health and Addiction Services v. Saeedi 2013 WL 3336950 (Conn.App.)

Public Employment: Existence of statutory remedies did not preclude police officer from suing city for wrongful discharge in violation of public policy.  Piel v. City of Federal Way 2013 WL 3377417 (Wash.)