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Discrimination, Retaliation, Wrongful Termination, and Unpaid Wages

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Emails from non-lawyer employees of a company hired to provide legal and regulatory guidance to that company’s customer are not protected by attorney-client privilege.

Posted in FMLA violations

“[Defendant] was not acting as AUM’s agent in any respect. Instead, [Defendant] was AUM’s customer. The proper description of the facts here is not that [Defendant] was acting as an agent of AUM, and AUM was passing on legal advice to [Defendant] in the context of a principal-agent relationship; rather, [Defendant] was AUM’s customer, and AUM employees sought legal advice from their legal counsel on questions related to the services AUM was providing to [Defendant], and then shared those opinions in their communications with [Defendant] . . . . The evidence, including the Court’s review of the subject emails, demonstrates that any legal or business advice given by AUM’s in-house counsel was given to AUM’s employees, for the benefit of AUM. AUM’s employees’ decision to share that information with their customer did not extend any privilege that might exist to that customer.” 2016 WL 3211992, at *3.

 

Schilling v. Mid-America Apartment Cmtys., Inc., No. A-14-CV-1049-LY, 2016 WL 3211992 (W.D. Tex. June 9, 2016).

There is no requirement that employees of open-enrollment charter schools exhaust administrative remedies pursuant to the Texas Education Code before filing suit for breach of contract.

Posted in FMLA violations

“[D]espite there being instances, such as in Section 12.1056(d), where an open- enrollment charter school is treated in the same manner as a school district, nothing in the Texas Education Code or the common law dictates that open-enrollment charter schools and school districts are universally equivalent.”

Section 7.057(a)(2)(B) sets forth the process by which a person must appeal to the commissioner a grievance caused by a provision of a written employment contract between the school district and a school district employee. See id. § 7.057(a)(2)(B). But Section 7.057 makes no provision for the inclusion of open-enrollment charter schools, nor does any other section or rule suggest that they should be included under that rule as are school districts. See id.

 

Azleway Charter School v. Hogue, No. 12-15-00257-CV, 2016 WL 2585963, (Tex. App. – Tyler May 4, 2016)

 

Where an investigation revealed that there was overbilling for activities such as arriving late, leaving early, and breaks that were not permitted by the contract between the company and its customer, there is sufficient evidence that the acts occurred.

Posted in FMLA violations

“[The investigator] testified that a portion of the hours she found Dow to have been overbilled was in the form of employees arriving late, leaving early, and taking breaks. (Id. at pp. 113—15). [The investigator] stated that the contract between Axion and Dow did not permit Axion to bill Dow for its employees’ breaks. (Id.). [The investigator] further testified, and Axion has admitted, that Ms. Miller improperly billed hours to Dow to compensate for her mileage.”

 

Richardson v. Axion Logistics, LLC, Civil Action No. 13-00302-BAJ-RLB, 2016 WL 2595105 (M.D. Louisiana, May 4, 2016)

 

When Plaintiff actions are consistent with the instruction of her manager, there is a question of fact as to whether the employer’s asserted reason for termination is “false or ‘unworthy of credence’” when the employer alleges those actions as the basis for termination.

Posted in FMLA violations

“[Plaintiff] testified that [manager] Young instructed her to refuse [the customer’s] attempted return, and that she was disciplined for doing just that. [Plaintiff] explained that [customer] requested her termination, and that [manager] Young responded “don’t you worry sir. I’m fixing to take care of her right now.” And according to [customer], his complaint to co-manager Copeland was only made at [manager] Young’s behest. This evidence creates a question of fact as to whether Wal-Mart’s asserted reason is “false or ‘unworthy of credence.’” Moss, 610 F.3d at 922 (internal citation and quotation omitted).”

Morris v. Derrick Young, Wal-Mart Stores East, L.P., and Steven Lane, Civil Action No. 1:14-cv-136-SA-DAS, 2016 WL 2354642 (N.D. Miss., May 3, 2016)

 

Certifying only part of a store can satisfy the Community Interest Test.

Posted in Collective Bargaining Agreements

Macy’s, Inc. v. Nat’l Labor Relations Bd., No. 15-60022, 2016 WL 3124847 (5th Cir. June 2, 2016).

Judges: Dennis, Benavides, Costa.

While Macy’s argued that the NLRB disregarded the law when it only certified a portion of one store’s employees, stating that the entire store would be the correct class, the Court nonetheless held that “the Board may certify a unit’ that is appropriate—not necessarily the single most appropriate unit. Although the unit composition argued for by Macy’s may have also been an appropriate bargaining unit we cannot say that the one approved by the NLRB was clearly not appropriate based on the employees community of interests. Macy’s, Inc. v. Nat’l Labor Relations Bd. at *6 (internal quotations omitted).

Plaintiffs need only allege facts that are within the reasonable scope of their EEOC investigation may later add more detailed facts in a lawsuit so long as they are within the reasonable scope of the investigation.

Posted in FMLA violations

“Plaintiff merely provides additional facts in her complaint that were not in her EEOC charge. In particular, she identifies the individuals mentioned in her charge who were allegedly promoted over her and who received higher wages for the same work. This is not an issue in which the Plaintiff is attempting to assert wholly new claims and the Court must determine whether the new allegations were reasonably expected to grow out of the EEOC charge.” Id. at 5 (internal citations omitted).

 

Carasha Isaac v. Wal-Mart Stores, Inc., 2016 WL 1660216 (E.D. LA April 27, 2016).

Judge: Karen Wells Roby

A Plaintiff need not allege each separate and distinct discriminatory act in an EEOC charge of discrimination in order to exhaust administrative remedies, but instead must only plead sufficient facts to inform the defendant of the possible claims that are intended to be pursued.

Posted in FMLA violations

“Plaintiff states during her employment she was paid less than her male counterparts with equal or less experience. She cites three examples: (1) an unidentified male employee, who worked at the vision center for a month longer than her, told her that he made two dollars more per hour; (2) an unidentified male employee made four dollars more per hour when he was in the manager training program; and (3) after she became a salaried employee a male employee named Chris, whose last name is unknown, was making six thousand more than her.” Carasha Isaac v. Wal-Mart Stores, Inc., 2016 WL 1660216, *4 (E.D. LA April 27, 2016). “Based on the above case law, the Plaintiff has sufficiently plead facts to inform the Defendant of the claims she intends to pursue.” Id.

 

Carasha Isaac v. Wal-Mart Stores, Inc., 2016 WL 1660216 (E.D. LA April 27, 2016).

Judge: Karen Wells Roby

 

If an employer’s motive behind an adverse employment action is to retaliate against actions it reasonable considered to be protected by the 1st Amendment, it does not matter if the employee actually engaged in the protected activity.

Posted in FMLA violations

“Heffernan’s supervisors demoted Heffernan from detective to patrol officer and assigned him to a “walking post.” In this way they punished Heffernan for what they thought was his “overt involvement” in Spagnola’s campaign.” Heffernan v. City of Paterson, New Jersey, et al., 2016 WL 1627953 *3 (2016). “In a word, it was the employer’s motive, and in particular the facts as the employer reasonably understood them, that mattered….Here the employer mistakenly thought that the employee had engaged in protected speech. If the employer’s motive (and in particular the facts as the employer reasonably understood them) is what mattered in Waters, why is the same not true here? After all, in the law, what is sauce for the goose is normally sauce for the gander.” Id. at *5.

 

Heffernan v. City of Paterson, New Jersey, et al., 2016 WL 1627953 (2016).

Justice Breyer

 

: In FLSA Collective Action, potential defenses showing that plaintiffs are not similarly situated are only addressed at the decertification stage, not during the initial conditional certification inquiry.

Posted in FMLA violations

Defendant contends that even if there was a common illegal policy, the suit cannot proceed as a collective action because Defendant will assert defenses that require individualized analysis for each putative class member (Dkt. #22 at p. 12). Challenges in litigating the suit or a particular need to address each perspective member of the collective action as an individual will be addressed in the second stage. Stier v. Great Plains National Bank, No. 4:15-cv-519, 2016 WL 1572194 at *2 (E.D.Tex. April 19, 2016).

Stier v. Great Plains National Bank, No. 4:15-cv-519, 2016 WL 1572194 (E.D.Tex. April 19, 2016).

 

in FLSA Collective Action, Declarations from Plaintiff and other individuals detailing similar primary job duties and that they did not receive overtime pay is sufficient to conditionally certify class.

Posted in FMLA violations

Plaintiff offers testimony that he performed the duties of a mortgage loan officer working for Defendant . . . . Plaintiff provides declarations of other individuals who claim the same primary job duty. Further, Plaintiff asserts that the “same pay practice” is Defendant failing to pay loan officers compensation tied to actual hours worked, denying them overtime pay required under the FLSA. Plaintiff submits declarations identifying this “same pay practice.” The Court finds that Plaintiff has shown a sufficient factual nexus which binds the proposed class to a particular policy or practice. Stier v. Great Plains National Bank, No. 4:15-cv-519, 2016 WL 1572194 at *2 (E.D.Tex. April 19, 2016).

Stier v. Great Plains National Bank, No. 4:15-cv-519, 2016 WL 1572194 (E.D.Tex. April 19, 2016).