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Category Archives: FMLA violations

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An employee being seven months into her pregnancy, coupled with her supervisor’s awareness of her pregnancy and consequent FMLA leave request, is enough to raise a genuine dispute of material fact whether she was terminated because of the leave request.

Posted in FMLA violations
“The Defendants also claims [sic] that the Plaintiff could not satisfy the third prong of the prima facie case [for FMLA retaliation] and could not establish a causal connection that her pregnancy caused her to get fired. The Defendants contend that there is no indication [Defendant] was aware that the Plaintiff was pregnant or wanted… Continue Reading

An employee who can perform the essential functions of her job with the use of a cane is a qualified individual under the Americans with Disabilities Act.

Posted in FMLA violations
“A ‘qualified individual’ means ‘an individual who, with or without reasonable accommodations, can perform the essential functions of the employment position that such individual holds or desires.’ In Plaintiff’s Third Amended and Restated Complaint, Plaintiff adds the allegation that she ‘required the cane to perform the tasks within the course and scope of employment at… Continue Reading

Evidence that a plaintiff worked offsite and from home via telecommunication to the employer’s corporate office which has more than 50 employees raises a genuine dispute of material fact as to whether she is an eligible employee under the Family and Medical Leave Act.

Posted in FMLA violations
“The plaintiff attested that, as a Technical Support Specialist, she worked offsite and from home through telecommunication and reported to the Tampa, Florida corporate office, which has more than 50 employees . . . . Here, the plaintiff provides sufficient evidence to support her claim that she is an eligible employee under the FMLA. Because… Continue Reading

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… Continue Reading

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… Continue Reading

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.).… Continue Reading

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… Continue Reading

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… Continue Reading

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… Continue Reading

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,… Continue Reading

: 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… Continue Reading

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… Continue Reading

Testimony from Plaintiff that she was told the reason she was not selected for a promotion because the department’s executive was suspected of sexually harassing female employees serves as direct evidence of sex discrimination to defeat a motion for summary judgment.

Posted in FMLA violations
“The Magistrate Judge found that Plaintiff’s Title VII discrimination claim is supported by direct evidence, based upon her conversation with Mr. Nowzaradan, wherein he stated she was not promoted to the development department due to his concern that she would be sexually harassed there. While Defendants offered evidence to rebut this conclusion, it is not… Continue Reading

The employer’s decision not to rehire Plaintiff shortly after she complained about being paid as an independent contractor and not an employee establishes a causal connection between the decision not to rehire Plaintiff and her protected activity under the FLSA.

Posted in FMLA violations
“While Plaintiff was employed by Defendants, she complained to her supervisors that she should be paid as an employee, rather than an independent contractor, because she was treated as an employee. (Id. ¶ 26.) Subsequently, Defendants offered to extend the contracts of every other coordinating producer besides Plaintiff who had worked on the fifth season… Continue Reading

Inconsistent deposition testimony as to the reason Defendant did not rehire Plaintiff may be used to establish pretext.

Posted in FMLA violations
“The Magistrate Judge found that Plaintiff successfully made a prima facie case, and that Defendants articulated a non-discriminatory reason for their failure to extend Plaintiff’s contract by stating she was unhappy producing Shipping Wars, shifting the burden back to Plaintiff. (Dkt. # 52 at 5.) The Magistrate Judge found that Plaintiff raised a genuine issue… Continue Reading

Employees who merely utilize materials of commerce in their job can satisfy the first prong of the Enterprise Test under the FLSA.

Posted in FMLA violations
Plaintiffs allege that Rite–Way was an enterprise covered by the FLSA because (1) its employees handled materials such as “mops, brooms, towels, soap, chemicals, vacuum cleaners, and other cleaning materials, supplies, and equipment” that had moved in interstate commerce, and (2) its annual gross volume of sales exceeded $500,000. Therefore, as held persuasively by the… Continue Reading

Evidence of temporary employees being brought on in Defendant’s position can create an issue of fact as to whether an employee was replaced by someone outside the protected class.

Posted in FMLA violations
Plaintiff contends that she “was succeeded by one or more of three new male MEs and so was replaced by someone outside her protected class.” There is evidence that Defendant had “three temporary or agency MEs” but didn’t know if they were actually hired and was not sure of their race. Defendant argues that evidence… Continue Reading

In claims seeking lost wages and compensatory damages, documents showing Plaintiff’s earnings while working for any previous employers are not relevant.

Posted in FMLA violations
Plaintiff’s earnings prior to her employment with Defendant are not relevant to this cause of action. Therefore, the temporal scope of the financial information relevant to Plaintiff’s case is limited to the time period during and after her employment with Defendant. Because Plaintiff was hired by Defendant in June of 2014, only Plaintiff’s earnings (and… Continue Reading

An employee’s denial that they received notice of an arbitration agreement posted in online employee portal raises a genuine issue of fact to the enforceability of the arbitration agreement.

Posted in FMLA violations
Despite the fact that the employer posted an arbitration agreement with a 30 day opt out clause the Court held “that is a gamble every employer takes any time it foregoes an employee signature and instead hangs its hat on a fact finder’s determination of whether it met Halliburton ‘s notice requirements.” The Court further stated even… Continue Reading

Assertion of Faragher-Ellerth defense based in part on internal investigation waives work product and attorney-client privileges for all documents created as part of the internal investigation.

Posted in FMLA violations
Even if the attorney-client or work-product privileges were to apply, Herzing waived the privileges by asserting the Faragher-Ellerth defense. When a Title VII defendant affirmatively invokes a Faragher-Ellerth defense that is premised at least in part on an internal investigation, the defendant waives the attorney-client privilege and work- product doctrine for all documents created as… Continue Reading

Notes taken during investigation of sexual harassment complaint are not protected by work product doctrine if company has policy of investigating all complaints of sexual harassment.

Posted in FMLA violations
It is clear that, pursuant to Herzing’s policy, the investigation would have been conducted regardless of whether litigation ensued. As a result, the investigation was conducted in the ordinary course of business.  Accordingly, the work-product privilege does not apply to Baiocchi’s notes. Ambrose-Frazier v. Herzing Inc, No. 15-1324, 2016 WL 890406 at *4 (E.D. La.… Continue Reading

Evidence that employee had previously taken 21 weeks off for an injury without consequence creates fact issue over whether employee would have been fired for needing more than 12 weeks of FMLA leave.

Posted in FMLA violations
Defendant has presented no evidence that it would have immediately terminated Plaintiff once she expended all her FMLA leave. In fact, Plaintiff declared that she was injured in an automobile accident in 2010, that she missed approximately twenty-one weeks of work, and that Defendant granted her nine weeks of non-FMLA leave after she exhausted her… Continue Reading

Supervisor or management knowledge that employee intended to take medical leave is evidence that employer’s advanced notice policy was not violated.

Posted in FMLA violations
In the Court’s opinion, the evidence cited above is sufficient to create a genuine dispute of material fact as to whether Plaintiff actually violated the advance notice policy, which only requires that an employee provide notice to her supervisor. The record contains evidence that Plaintiff’s immediate supervisors and the director of her department knew that… Continue Reading

An arbitration agreement that the employer can unilaterally modify or terminate without notice is illusory and unenforceable.

Posted in FMLA violations
“There is no dispute here that Watch House’s Arbitration Plan satisfies the second prong of Lizalde by applying equally to claims made by both Watch House and Nelson. Rather, Nelson focuses our attention on the following language in the Plan: This agreement may not be altered except by consent of the Company and shall be… Continue Reading