Westlaw Topical Highlights: Labor and Employment, August 7, 2013

August 7, 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

Wrongful Discharge: Public-policy exception to at-will employment doctrine applied so as to give rise to wrongful termination claim.  Dorshkind v. Oak Park Place of Dubuque II, L.L.C., 2013 WL 3958293 (Iowa) .   An assisted living facility’s retaliatory discharge of an at-will employee following the filing of an internal complaint by the employee against the facility concerning forged state-mandated training documents certifying dementia training violated public policy, and therefore gave rise to a wrongful-termination action. The Supreme Court noted that the statute governing assisted living programs demonstrated a clearly defined and well-recognized public policy to make assisted living available throughout the state and to ensure the safety of persons residing in assisted living facilities. Further, the administrative rule mandating dementia training specifically articulated a concern for health, safety, and welfare of dementia patients in assisted living facilities. Also, the employee’s reporting of the forgery of the training documents advanced this policy and the employee’s termination chilled reporting by other employees.  2013 WL 3958293  (The full-texts of the rest of the Topical Highlights are available within Westlaw Next, subscription required)

Discrimination: Employee’s procedural error did not bar his Title VII hostile work environment, race discrimination, and retaliation claims. Clay v. Consol Pennsylvania Coal Co., LLC, 2013 WL 3364475 (N.D.W.Va.)

 Public Employment: Federal employee failed to show sufficient evidence supporting application for disability retirement benefits.  Christopherson v. Office of Personnel Management 2013 WL 3878687, (M.S.P.B.)

Hours and Wages: Driver of commercial vehicle with gross weight rating of more than 10,000 pounds was not entitled to overtime compensation.  2013 McCall v. Disabled American Veterans, 2013 WL 3924323 (C.A.8 (Mo.))

Discrimination: Accommodating employee’s religious beliefs would not have created undue hardship on employer.  Adeyeye v. Heartland Sweeteners, LLC, 2013 WL 3928168 (C.A.7 (Ind.))

 Discrimination: Employee failed to establish prima facie case of retaliation under Title VII.  Whethers v. Nassau Health Care Corp., 2013 WL 3423111 (E.D.N.Y.)

 Discrimination: Employer was not entitled to summary judgment on terminated male employee’s Title VII and MHRA gender discrimination claims.  Mudrich v. Wal-Mart Stores, Inc. 2013 WL 3380996 (D.Minn.)

Public Employment: Policy against sexual harassment in the workplace required dismissal of corrections officer who sexually harassed complainant. State v. AFSCME, Council 4, Local 391, 2012 WL 8701238 (Conn.)

Workers’ Compensation: Workers’ Compensation Board’s variance process properly shifted burden to providers to demonstrate medical necessity of care.  Kigin v. State Workers’ Compensation Bd., 2013 WL 3744093 (N.Y.A.D. 3 Dept.)

Attorney Fees: ALJ did not abuse his discretion in determining prevailing market rates to be applied to services of claimant’s counsel. Eastern Associated Coal Corp. v. Director, Office of Workers’ Compensation Programs, 2013 WL 3929100 (C.A.4)

Public Employment: Federal employee was entitled to corrective action under Federal Erroneous Retirement Coverage Corrections Act (FERCCA).  Archer v. Office of Personnel Management, 2013 WL 3943500 (M.S.P.B.)

Discrimination: Employee’s merely being told that she was being reassigned due to her pregnancy was not an adverse employment action. Cunningham v. Tennessee Cancer Specialists, PLLC 2013 WL 3716877 (E.D.Tenn.)

Arbitration: Dispute re application of CBA’s terms and conditions to nonunion workers was arbitrable because companies were single employer.  Lippert Tile Co., Inc. v. International Union of Bricklayers and Allied Craftsmen, Dist. Council of Wisconsin and Its Local 5, 2013 WL 3942909 (C.A.7 (Wis.))

Arbitration: Arbitrator’s refusal to issue subpoenas did not deny parties a fair hearing.  Doral Financial Corp. v. Garcia-Velez 2013 WL 3927685 (C.A.1 (Puerto Rico))

Workers’ Compensation: Coming and going rule did not bar recovery for on-call claimant.  Shannon v. Roane Medical Center 2013 WL 1003473 (Tenn.Workers Comp.Panel)

Venue: Once court dismissed employee’s action based on improper venue, it could not then reach the merits of case. Bourke v. Grey Wolf Drilling Co., LP 2013 WL 3935073 (Wyo.)

Contracts: Covenant not to compete invalidly imposed far broader restriction on employee than employer’s legitimate interest. Westlaw Topical Highlights Summary Added August 04, 2013 B.O. Technology, L.L.C. v. Dray 2013 WL 3770689 (N.Y.Sup.)

Whistleblowing: Failure to give “upper management” instruction was reversible error in New Jersey whistleblower action.  Longo v. Pleasure Productions, Inc., 2013 WL 3811800 (N.J.)

Whistleblowing: Chapter 13 debtor retained standing to maintain Whistleblower claim against former employer.  Aery v. Wallace Lincoln-Mercury, LLC, 2013 WL

Public Employment: Class of deaf and hearing-impaired employees could settle Rehabilitation Act claims against United States Postal Service for $4.55 million.  Hubbard v. Donahoe 2013 WL 3943495 (D.D.C.)

 Benefit Plans: Representations made to SSA that were inconsistent with denial of LTD benefits did not provide basis for judicial estoppel. Frazier v. Life Ins. Co. of North America, 2013 WL 3968766 (C.A.6 (Ky.))

Arbitration: Union did not waive its right to rely on res judicata effect of prior arbitration n proceeding.  Carlisle Power Transmission Products, Inc. v. United Steel, Paper and Forestry, Rubber, Mfg., Energy, Allied Indus. and Service Workers Intern. Union, Local Union No. 662, 2013 WL 3970231 (C.A.8 (Mo.))

Workers’ Compensation: Proceeds from claimant’s recovery from third-party tortfeasor’s insurance carrier were subject to subrogation by employer.  Kennedy v. W.C.A.B. (Henry Modell & Co., Inc.) 2013 WL 3943264 (Pa.Cmwlth.)