Transcript wp.valenciacollege.edu

2012 COMMUNITY
COLLEGE LEGAL
CONFERENCE
Orlando, FL
January 2012
10 Most Important Labor &
Employment Law
Cases or Developments of 2011
Presentation By:
Ira M. Shepard, Esq.
ACCT and CUPA-HR General Counsel
Saul Ewing LLP
Washington, DC
(202) 342-3419
[email protected]
10 Most Important Labor & Employment Law
Cases or Developments of 2011
Areas to be covered:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Background Checks
Faculty Free Speech Rights
FMLA Notice and ADA Breast Cancer Coverage
FLSA “Volunteer” coach exemption
Retaliation – Oral FLSA complaint
Hostile Environment – ADA –Demeaning Depression
Teaching Assistant Unionization – NLRB
Social Media Spillover to Workplace – NLRB
FLU & H1N1: ADA
Computer Fraud & Abuse Act and Employee Destruction of
Files
1. Background Checks
NASA v. Nelson et al (US Sup Ct No. 09-530:1/19/11: DLR 1/19/11)
Issue: Does the background check required by NASA of all contract
scientists, engineers, and admin support personnel, requiring
them to answer questions about drug treatment and other
matters, violate their constitutional right to privacy and/or the
Federal Privacy Act? The Ninth Circuit Court of Appeals held
that it had the potential to violate their “informational privacy
rights” and enjoined the use of the background checks by
NASA.
1. Background Checks
Holding:
In a 8 to 0 decision Justice Alito concluded no privacy
violation. The constitution does not prevent the government
from taking reasonable steps protecting legitimate
government interests. Here the government gave the
employees substantial protection against public disclosure of
personal information.
2. Faculty Free Speech Rights
Adams v. UNC at Wilmington 640 F3rd 550 (4th Cir; 4/6/2011)
Issue: Can a university deny a professor a promotion based on his
writings? Lower court held yes. Prior Supreme Court
precedent is that job related speech or writing is not protected
by the 1st Amendment, i.e., Garcetti, District Attorney case.
Professor argues he should be protected under ruberick of
“academic freedom.”
2. Faculty Free Speech Rights
Holding:
The professor, who was a prominent conservative
commentator, has a right to a trial over whether his writings,
which were not tied to any employee duty except the general
concept that professors will engage in writing and public
appearances, were the reason for his promotion denial and if
so, does the denial violates his free speech rights?
Dilemma:
Faculty peer committee concluded his writings were not
sufficient in the scholarly peer reviewed venues, not that his
writings were objectionable.
3. FMLA and ADA (FMLA Notice &
ADA Breast Cancer Coverage)
3. FMLA and ADA (FMLA Notice &
ADA Breast Cancer Coverage)
Holding:
Case dismissed: (1) even if the University failed to provide
plaintiff with a statement of FMLA rights, where plaintiff
received paid time off and all benefits she was otherwise entitled
to under the FMLA no cause of action exists; (2) plaintiff
claimed that her breast cancer limited her major life activity of
“working” because she was “not able to do her job the same way”
but failed to demonstrate that her breast cancer precluded her
from performing a broad range of jobs nor that her work
limitations were substantial.
4. FLSA – Volunteer Coach Exemption
Fordham v. Fairfax Cty School Board 637 F3rd 421 (4th Cir.; 3/10/11)
Issue: Is Plaintiff who is a full time safety employee and a part time
golf coach, entitled to overtime for the time spent coaching, in
excess of his regular 40 hour work week as a “safety assistant?”
Plaintiff stated he never intended to “volunteer” as a golf coach
and was paid overtime from time to time in the past.
4. FLSA – Volunteer Coach Exemption
Holding:
The 4th Circuit dismissed the claim concluding that, despite the
plaintiff’s “mixed motivations,” he “volunteered” for the coaching
position within the meaning of the FLSA, as his full time job was not
conditioned upon his being a coach. The fact that he received a stipend
and expenses does not alter his volunteer status.
The school board’s temporary payment of overtime, in the face of
evolving legal standards and before the DOL’s clarification on volunteer
status, does not obligate continuation of overtime compensation.
5. Retaliation (oral FLSA complaint)
Kasten v. Saint-Gobain Plastics 130 S.Ct. 1890 (US, 3/22/11)
Issue: Are public employees who complain “orally” about FLSA
violations protected by the FLSA’s ban on retaliation against
public employees who “file” an FLSA complaint against a public
employer?
The statute by its terms protects employees who “file” an FLSA
complaint from retaliation.
5. Retaliation (FLSA oral complaint)
Holding:
Yes, the Federal FLSA prohibits retaliation against an employee
who has “filed any complaint” under the FLSA or related to the
statute. Although the Supreme Court majority recognized that
the word “filed” may suggest “some degree of formality,” the
statute does not require that the complaint be in writing. Oral
complaints are protected.
6. Hostile Environment – ADA
Demeaning Depression
Schwartzkopf v. Brunswick – Life Fitness 2011 WL 2215013
(D.Minn, 6/7/11)
Issue: Is the demeaning of an employee who suffers from depression by
supervisors and co-workers actionable under the ADA, Hostile
Environment protections?
The supervisors and co-workers called him “stupid,” “a mental
case,” “incompetent,” and said “he might go postal” and, “we
should put a shock collar on you because you are so forgetful.”
The employee suffered from depression and general anxiety
disorder.
6. Hostile Environment – ADA
Demeaning Depression
Holding:
Claim of hostile work environment is actionable under the ADA
as the company and co workers were aware of plaintiff’s mental
disabilities but allowed a demeaning and hostile work
environment to continue. His claim of ADA discrimination
because he was depressed was dismissed as there was no
evidence of adverse action relating to his wages or benefits.
7. Teaching Assistant Unionization NLRB
New York University (NYU) and the UAW
(NLRB Acty Reg Dir Case No 2-RC-23481 – June, 2011)
Issue: Are 1,800 NYU Teaching and Graduate Assistants “employees”
under the National Labor Relations Act and therefore entitled to
unionize?
Prior NLRB precedent handed down in the Brown University
case in 2004 stated that teaching assistants had a
predominantly academic relationship within their institution
and therefore, did not have the right to unionize.
7. Teaching Assistant Unionization NLRB
Holding:
The Regional Director dismissed the petition under the Brown
University precedent but determined that the relationship
between NYU and the graduate assistants is both academic and
economic. He concluded that a “dual relationship exists with
the Employer which does not preclude a finding of employee
status.” The Full NLRB must now decide whether to continue
the Brown University precedent or reverse it. Commentators
predict ...
8. Social Media Spillover into the
Work Place - NLRB
Thompson Reuters and the Newspaper Guild
(NLRB Regional Dir Complaint, NY, April 2011)
Issue: Is an employee’s use of a personal social network sites to
critically discuss an employer’s wages, hours or working
conditions a protected activity under the NLRA and is it unfair
labor practice to discipline an employee for such posts?
The Thompson Reuter’s employee was disciplined after posting
a tweet to fellow employees, “One way to make this a better
place to work is to deal honestly with the Guild.”
8. Social Media Spillover into the
Work Place - NLRB
Holding:
The law governing the right of employees to freely discuss without
discipline or threat of discipline issues relating to wages, hours and
working conditions is well settled. Facebook and twitter cases are
simply applying old law to a new avenue of communications. The
communications are protected against retaliation.
Subsequent NLRB Division of Advice memorandum indicate that
individual gripes or complaints posted on social network sites, rather
than “concerted” complaints are not protected.
TT’s Porch Saloon (NLRB Dir of Advice - DLR – 7/28/11)
Dilemma…
8. Social Media Spillover into the
Work Place - NLRB
What kind of policies can be written:
•
•
•
•
Employers can limit posting Facebook updates and tweets while
working on the job.
Employers can prohibit employees from making social media
posting. that with regard to the workplace that are false and/or
use profanity in relation to co-workers and management.
Employers can forbid dissemination of confidential information
on line.
Useful to add a disclaimer to any social media policy “Nothing
in this policy is intended to limit an employee's labor rights
under NLRA.”
9. FLU & H1N1: ADA Coverage
Lewis v. Florida Default Law Group
(MD FL No. 8:10-CV-01122- 9/16/11)
Issue: Employee was terminated after extended absence from work
because she suffered from repeated and severe flu symptoms
and no longer had any sick leave available. She was terminated
for excessive absenteeism. She claimed her termination violated
the ADA because her flu and H1N1 symptoms were at times as
severe or more severe than Epilepsy attacks and PTSD attacks
and argued that Epilepsy and PTSD were protected by ADA.
9. FLU & H1N1: ADA Coverage
Holding:
Federal District Court Judge dismissed the law suit holding that
the FLU and even H1N1 are not covered by the ADA. The judge
rejected the plaintiff’s claims that their symptoms are the same
as episodes of epilepsy or PTSD symptoms as the FLU and H1N1
symptoms are temporary and the others are permanent. The
Judge concluded that some of plaintiff’s symptoms were
temporary and they cannot have a substantial limitation on a
Major Life Activity and therefore, are not covered by the ADA.
10. COMPUTER FRAUD AND ABUSE ACT (CFAA) AND
EMPLOYEE’S USE OF PERSONAL LAPTOP TO DESTROY
EMPLOYER DOCUMENTS
ER JAMES REAL ESTATE SERVICES LLC v. Spinell et. al.
(ND IL No. 11-6-4776)
Issue: The Federal CFAA makes it a federal crime to “hack” into and
gain unauthorized access to computer systems to destroy
documents and files. Here, a number of employees, before
resignation, who had access to his employer’s computer system
and server used their personal laptop to gain access and destroy
certain customer files before leaving employment to join a
competitor. Employee defended his actions stating that when
he deleted the files he was authorized to enter the system and
CFAA and prior cases indicate that such activity is not a
violation of CFAA because there was no “unauthorized access.”
10. COMPUTER FRAUD AND ABUSE ACT (CFAA) AND
EMPLOYEES USE OF PERSONAL LAPTOP TO DESTROY
EMPLOYER DOCUMENTS
Holding:
A Federal District Court Judge, while dismissing the case on
other grounds, ruled that although some courts have held that
the use of a personal laptop to gain permissible access to a
company computer server is not actionable as an
“unauthorized” access claim under the CFAA, the Judge ruled
that the employees in this case who destroyed certain
information, may be actionable under Section 1030 (a)(5)(A) of
the CFAA which prohibits the destruction of computer files.