Employment Law Memo
First in Employment Law
*** Capsules ***
23 LTD v. Herman
(Colorado Ct App 07/25/2019)
The employer sued
Herman, a legal recruiter, for violating a nonsolicitation agreement.
The trial court declined to exercise its discretion to blue pencil the
agreement and entered judgment against the employer. The Court of
Herman worked for
the employer as a legal recruiter and started her own recruiting
business after terminating her employment. The employer sued Herman for
violating a nonsolicitation agreement after she started working with a
client of the employer. The trial court held the nonsolicitation
agreement invalid under state law and refused to blue pencil the
agreement to make it enforceable.
The Court of
Appeals affirmed and rejected the employer's argument that the
severability provision obligated the court to blue pencil the agreement.
The court stated parties to a contract cannot compel a court to exercise
its blue pencil authority and that it is not the function of the courts
to write or rewrite contracts for parties to allow enforcement of
contracts that, as written, violate public policy.
Adia v. Grandeur
Management (2nd Cir 07/25/2019)
Adia sued the
hotel services employers alleging causes of action for forced labor and
human trafficking under the Trafficking Victims Protection Act (TVPA)
and the Alien Tort Statute (ATS), and a claim for unpaid overtime under
the New York Labor Law. The
trial court granted the employer's motion to dismiss. Adia appealed only
the dismissal of his TVPA claim. The 2nd Circuit vacated the portion of
the judgment dismissing Adia's TVPA claims, and the case was remanded
for further proceedings, including the exercise of supplemental
The issue on
appeal was whether the provisions of the TVPA creating a civil remedy,
18 USC Section 1595, for violating the criminal provisions prohibiting
forced labor and human trafficking, Sections 1589 and 1590, applied to
an immigrant lawfully in this country on a temporary guest worker visa
alleging that his employers threatened to revoke their sponsorship,
thereby subjecting him to deportation.
In the context of
Adia's circumstances, the employers' alleged threat to cancel their
sponsorship if he left them constituted abuse of legal process of
subsection 1589(a)(3). The court found that Adia's had plausibly pled a
claim for forced labor under subsection 1589(a)(3). For the same reasons
Adia had plausibly stated a claim for relief under subsection
trafficking claim, the employer recruited him from South Dakota
promising him to transfer and sponsor his H-2B visa. If an employer
violated section 1589, he also violates section 1590 if he recruited the
person to perform forced labor. The court found that Adia plausibly
alleged a claim for trafficking under section1590.
Louisiana Small Business Devel Ctr (5th Cir 07/24/2019)
The 5th Circuit
affirmed the district court's FRCP 12(b)(6) dismissal of Edmiston's ADEA
claims against the Louisiana Small Business Development Center (Center)
on the campus of Northwestern State University. Edmiston, 71, alleged
she was fired due to her age. The district court dismissed Edmiston's
claim on the ground the Center was not a juridical entity. The 5th
Circuit affirmed and held the Center is not an independent juridical
entity under Louisiana law. By statute, the Center is subject to the
authority of the Board of Supervisors for the university system, which
would have been the proper defendant.
Washington University (8th Cir 07/25/2019)
assistant, sued her hospital employers alleging they discharged her in
retaliation for exercising her rights under the Family and Medical Leave
Act (FMLA) and the Missouri Human Rights Act (MHRA). The trial court
granted the hospitals summary judgment. The 8th Circuit affirmed.
Lovelace had back
surgery, and required certain minor work accommodations, taking breaks
to stand, stretch, or walk. While concern was raised about her
performance after her return from FMLA leave, she was discharged for her
behavior on July 31, 2015, disrupting the office.
With respect to
her FMLA discrimination claim, Lovelace must show that the exercise of
her FMLA rights played a part in the employers' decision to discharge
her. Lovelace's "intervening unprotected conduct" – i.e., her refusal to
engaged with Supervisor Brinkley and Resources Consultant Sledge on July
31 and her subsequent outburst – ended any connection there might have
between her FMLA leave and her eventual discharge. The court determined
the trial court did not err in granting the hospitals summary judgment
on Lovelace's FMLA discrimination claims.
retaliation claims: (1) Lovelace did not claim she was discriminated
against because of the color of her skin, she had no legitimate basis
for believing Brinkley was discriminating against her on the basis of
her race when Brinkley asked her whether she had made a comment based on
Butcher's race; (2) evidence of generally temporary work restrictions,
without more, was insufficient to constitute a disability. The court
concluded the trial court did not err in granting the hospitals summary
judgment on Lovelace's MHRA retaliation claim.
Higgins v. Union
Pacific Railroad (8th Cir 07/24/2019)
locomotive engineer, entered into a settlement agreement in 1992 with
the railroad company for two spine-related injuries while performing job
duties, where he released his personal injury claims against the
railroad in exchange for payment and "the right to lay off whenever his
back bother[ed] him." On
March 12, 1992, Higgins's physician wrote a letter to the railroad that
Higgins was cleared to work "with the only restriction being that he
should not go out more than often then every 24 hours." In December 4,
2014, the railroad determined that Higgins's restrictions interfered
with his essential job functions and could not be reasonably
accommodated, and he was not permitted to safely return to work.
Higgins sued the
railroad for violation of the Americans with Disabilities Act (ADA) and
other claims. The trial court granted the railroad's motion for summary
judgment. The 8th Circuit affirmed.
challenged whether attendance was an essential function of the job and
that he could perform the essential functions of the job with a
description listed attendance as an essential job function; the
railroad's repeated warnings to Higgins that his poor attendance was
unacceptable; and, while the railroad's accommodation of Higgins's back
pain may not have been temporary, it did not alter the court's essential
function analysis in this case.
requested accommodation – "laying off as necessary" and receiving "24
hours of rest per shift (between shifts)" – was unreasonable. The court
found that Higgins's requested accommodation essentially amounted to an
"unlimited absentee policy," which was unreasonable as a matter of law.
The court noted that the railroad's previous generosity to accommodate
Higgins's disability must not be deemed to have conceded the
reasonableness of so far-reaching an accommodation as proposed here. The
court concluded that Higgins could not establish a prima facie case of
discrimination under the ADA.
Jefferson County 911 Dist (11th Cir 07/24/2019)
The 11th Circuit
vacated the district court's judgment dismissing McAdams' ADA claim
against the employer on sovereign immunity grounds. The district court
held the employer was an arm of the State of Alabama entitled to
immunity under the 11th Amendment. Using a four-factor test, 11th
Circuit held the employer did not act as an arm of the state and was,
therefore, not entitled to 11th Amendment immunity. The court emphasized
that the state Supreme Court had previously held a similar
communications entity was not an arm of the state.
Iglesias v. City
of Hialeah (Florida Ct App 07/24/2019)
and the City employer settled Iglesias's Florida Public Whistleblower
Act (FPWA) with Iglesias allowed to appeal the trial court's ruling not
allowing for noneconomic damages and the City to appeal the trial
court's denial of its motion for summary judgment. The Florida Court of
Appeal reversed the trial court's ruling denying noneconomic damages
under the FPWA, and affirmed as to the trial court's denial of the
City's motion for summary judgment.
observed that the FPWA's language was a floor, rather than a ceiling, on
the types of relief that a party could seek, and that a remedial statute
like the FPWA should be construed liberally in favor of the party
seeking relief. The FPWA mandated that an award include the remedies
explicitly identified within the statute, but, the court explained, did
not expressly exclude other recoverable damages, thereby allowing other
forms of relief as may be appropriate under the applicable law. The
court reversed the trial court's denial of recovery of noneconomic
compensatory damages under the FPWA and remanded the case for a trial on
Iglesias's noneconomic compensatory damages.
Polk County Civil Service (Iowa Ct App 07/24/2019)
The Court of
Appeals affirmed the district court's judgment upholding the decision of
the Polk County Civil Service Commission (Commission) terminating deputy
sheriff Charleston's employment. Charleston was fired after repeatedly
changing officer assignments for transporting prisoners to court after
being ordered not to do so and contributing to a hostile workplace. The
court held the record contained substantial evidence justifying the
Commission's termination decision.
Crocker v. South
Carolina Dept of Health (South Carolina Ct App 07/24/2019)
Crocker filed a
Charge of Discrimination based on age about not being selected for the
position of IT Manager with the South Carolina Human Affairs Commission
(SCHAC) on August 7, 2013, alleging violations of the Age Discrimination
in Employment Act (ADEA) and the South Carolina Human Affairs Law
(SCHAL). The SCHAC waived deferral and transferred the complaint to the
EEOC, which issued a right to sue letter on February 11, 2016 with
90-days to file suit. Crocker filed suit in state court on March 28,
2016. The employing Department (of Health and Environmental Control)
filed a motion for summary judgment arguing (1) the statute of
limitation in section 1-13-90(d)(6) barred Crocker's claims, (2) no
private cause of action existed for Crocker under section1-13-90(c), and
(3) Crocker was not entitled to equitable tolling. The trial court
granted the Department's motion for summary judgment for all three
reasons. The South Carolina Court of Appeals affirmed.
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