Westlaw Topical Highlights: Labor and Employment, September 25, 2013

September 25, 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: Phantom units in partnership that were part of executive incentive plan did not constitute wages under the Protection of Labor Act.   Coen v. SemGroup Energy Partners G.P., LLC, 2013 WL 4525726 (Okla.Civ.App. Div. 4).  In a matter of first impression, an Oklahoma appellate court held that phantom units in a limited partnership that were part of an executive incentive plan did not constitute wages under the Protection of Labor Act. A participant’s expectation of entitlement to the phantom units, and the number of units, derived exclusively from the terms of the plan and did not depend on a participant’s own performance. Furthermore, entitlement to the units was triggered upon a change in control of the partnership, making entitlement based on factors outside the scope of executives’ labor or services rendered, rather than based on their own productivity.2013 WL 4525726(The full-texts of the rest of the Topical Highlights are available within Westlaw Next, subscription required).

Discrimination: Chairman of board that oversaw regulatory agency was not liable under DCHRA on theory that he aided and abetted in retaliation.   Martin v. District of Columbia 2013 WL 5106074 (D.D.C.)

. Jurisdiction: Dismissal based on CAFA “home state exception” nearly three years after complaint was filed was not abuse of discretion.   Gold v. New York Life Ins. Co. 2013 WL 5226183 (C.A.2 (N.Y.))

Discrimination: Hospital, which was a non-profit corporation, did not show that it was exempt as an employer under Missouri Human Rights Act.   Farrow v. Saint Francis Medical Center 2013 WL 4520993 (Mo.)

Hours and Wages: Cable technicians were “similarly situated,” as required to maintain FLSA collective action.  Thompson v. Bruister and Associates, Inc. 2013 WL 4507740 (M.D.Tenn.)

Hours and Wages: “Federal purposes,” under apprenticeship regulations referred to laws or actions that in some way addressed apprenticeship.   Independent Training and Apprenticeship Program v. California Dept. of Indus. Relations 2013 WL 5227069 (C.A.9 (Cal.))

Public Employment: Sheriff was entitled to qualified immunity concerning deputies’ First Amendment claims.   Bland v. Roberts 2013 WL 5228033 (C.A.4 (Va.))

Discrimination: Federal agency’s failure to promote employee was not retaliation in violation of Title VII.   Arnold v. Salazar 2013 WL 5273369 (D.D.C.)

Benefit Plans: Substantial credible evidence supported determination by administrator that claimant did not have cognitive dysfunction of lasting effect as result of traumatic brain injury.   Atkins v. Guardian Life Ins. Co. of America 2013 WL 4520995 (E.D.Ky.)

Discrimination: Black female employee was subjected to hostile work environment based on racially and sexually derogatory comments.   Joseph v. HDMJ Restaurant, Inc. 2013 WL 4811225 (E.D.N.Y.)

Public Employment: Federal employee seeking review of furlough was not entitled to discovery of agency’s spending decisions.   Chandler v. Department of the Treasury 2013 WL 5273920 (M.S.P.B.)

Public Employment: Department of Labor had good cause to furlough administrative law judges (ALJs) for 5.5 days.  Department of Labor v. Avery 2013 WL 5273808 (M.S.P.B.)

Arbitration: Securities broker/dealer’s post-termination defamation claim touched on his employment contract, so as to be arbitrable.  Davidson v. A.G. Edwards & Sons, Inc. 2013 WL 5273105 (Ga.App.)

Discrimination: “Escalator principle” and “reasonable certainty” test applied to automatic or non-automatic “discretionary” promotions.   Rivera-Melendez v. Pfizer Pharmaceuticals, LLC 2013 WL 5290017 (C.A.1 (Puerto Rico))

Discrimination: Foreman’s single use of racial epithet was not evidence of discrimination in employer’s reduction in force 20 years later.   Fuller v. Edward B. Stimpson Co., Inc. 2013 WL 4710863 (S.D.Fla.)

Unions: Competitor’s privilege applied to collective bargaining by active employees that was at expense of retirees.  Eller v. National Football League Players Ass’n 2013 WL 5302711 (C.A.8 (Minn.))

Unemployment Compensation: Wages of a self-employed person or independent contractor include “any and all compensation” received in a week, not net income after expenses.  Natkin v. California Unemployment Insurance Appeals Board 2013 WL 5273824 (Cal.App. 2 Dist.)

Employer’s Liability: Respondeat superior applied to employee’s collision during slight deviation from commute in required vehicle.   Moradi v. Marsh USA, Inc. 2013 WL 5203485 (Cal.App. 2 Dist.)