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Today on Verdict

Philadelphia’s Ban on Employers Asking Job Applicants for Salary History Raises Interesting First Amendment Questions

Vikram David Amar & Alan E. Brownstein
Vikram David Amar Alan E. Brownstein

Illinois Law dean and professor Vikram David Amar and UC Davis Law professor Alan Brownstein discuss a law the Philadelphia mayor recently signed into law that prohibits employers in that city from asking job applicants to provide their past salary data, in an attempt to reduce the wage gap between men and women. Read Article

Who Is To Blame? Understanding Trump’s Rise In Order to Guarantee His Fall

Neil H. Buchanan
Neil H. Buchanan

George Washington law professor and economist Neil H. Buchanan argues that two groups are primarily responsible for electing Donald Trump: Republican officeholders who knew better and non-voters (especially younger voters) who ignored their responsibility to the future. Read Article

Supreme Court to Consider When a Criminal Defendant Must Pay With His Life for His Lawyer’s Error

Michael C. Dorf
Michael C. Dorf

Cornell University law professor Michael C. Dorf comments on a case before the U.S. Supreme Court that presents the issue whether and when a criminal defendant should pay with his life for an error made by his lawyer. Dorf explains the facts behind the case as well as the relevant legal precedents. He argues that Davila, the criminal defendant in this case, might convincingly argue that his first real opportunity to complain about the ineffectiveness of counsel on direct appeal is in a state habeas proceeding. Read Article

Weekly Opinion Summaries

Labor & Employment Law

Weekly Summaries Distributed January 27, 2017

Duffey v. WCAB

The issue in this workers’ compensation appeal was ultimately whether a notice of compensation payable closely circumscribes the range of health-related conditions to be considered in impairment rating evaluations. The Supreme Court held that physician-examiners must exercise independent professional judgment to make a whole-body assessment of “the degree of impairment due to the compensable injury,” which discernment cannot be withheld on the basis that the physician-examiner believes the undertaking is a more limited one. The order of the Commonwealth Court with respect to this issue was reversed, and the matter remanded for reinstatement of the finding of invalidity rendered by the Worker's Compensation Appeal Board.

The Village of Bartonville v. Lopez

The Bartonville police department’s union contract includes a grievance procedure. The Union may refer the grievance to arbitration if it is not settled within the three-step procedure. In 2014, Chief Fengel signed a complaint for termination, alleging that Lopez violated department procedures during a traffic stop. After scheduling a hearing by the board of fire and police commissioners, Lopez sought a declaratory judgment, arguing that the board was divested of jurisdiction because it had failed to commence the hearing within the 30-day time limit under Municipal Code 10-2.1-17. The board responded that it did so at Lopez’s request. The appellate court affirmed summary judgment in favor of the board. The hearing had proceeded, with counsel stating that Lopez did not waive the issue of jurisdiction and that the Union’s presence did not waive its contractual right to grieve the termination. The board ordered termination. Lopez never sought judicial review under the Administrative Review Law, but filed a grievance. When the grievance was not resolved by the three-step process, the Union referred it to arbitration. The Department sought a stay, arguing that in relying on the Municipal Code, Lopez essentially admitted that the board had jurisdiction. Because the board issued a final merits decision, review was subject to the Administrative Review Law. The Department also argued that the grievance and arbitration provisions in the labor contract did not apply to termination proceedings because the parties did not negotiate an alternative form of due process in the labor contract. The trial court granted the Department summary judgment, finding no contract provision, “even inferring, that the grievance procedure should, or could, be used to determine disciplinary matters.” The appellate court reversed. The Illinois Supreme Court reinstated the trial court decision, finding the grievance barred by waiver and res judicata.

Metro Machine Corp. v. DOWCP

Metro Machine and Signal Mutual seek review of the Benefits Review Board's order affirming the ALJ's grant of a claim for medical benefits under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 907. The court concluded that substantial evidence supports the ALJ’s order awarding Claimant medical benefits for his work-related COPD. The only error the ALJ committed was in failing to apply the “naturally or unavoidably results” standard to the fracture claim. Because remand for application of that standard would be a futile exercise, given that there was no issue presented regarding avoidability, the court denied the petition for review and affirmed the Board's decision.

Brown & Pipkins, LLC v. Service Employees International Union

B&P appealed the confirmation of four labor arbitration awards. The Union cross-appealed for attorneys' fees. The court affirmed the confirmation of the arbitration award, based in large part upon the limited scope of its review of a labor-arbitration decision pursuant to a collective bargaining agreement (CBA). The court explained that, by balancing competing provisions in the CBA and coming to a conclusion, the arbitrator cleared the very low bar needed to insulate the award from a charge that he failed to construe the CBA. In this case, the court found B&P’s arguments on this point amount to an impermissible attack on the correctness of the arbitrator’s decision. The court also concluded that the arbitrator was within his authority to find the grievance timely under the continuing violation doctrine. Furthermore, the district court did not err in confirming the Hours Reduction Award; did not err in confirming the Drivers’ Pay Award, did not err in confirming the Vacation Pay Award; and did not err in confirming the Monies Owed Award. Finally, the court held that the Union waived its claim for attorneys’ fees by not complying with Federal Rule of Civil Procedure 54. Accordingly, the court affirmed the judgment.

Padmanabhan v. Centers for Medicare & Medicaid Services

Petitioner filed an action alleging claims of Medicare or Medicaid fraud and retaliation by his employer when he spoke up about the purported fraud. A federal district court judge allowed a motion to dismiss certain federal defendants and then remanded the case to the superior court. Petitioner appealed. The appeal remained pending when, in the superior court, the remaining defendants filed motions to dismiss. Petitioner filed a motion in the county court that the single justice treated as a petition pursuant to Mass. Gen. Laws ch. 211, 3, arguing that the state court lacked jurisdiction because his appeal from the remand order remained pending in the federal court and seeking a stay in the superior court. A docket entry indicated that because Petitioner’s appeal remained pending, the status conference would be continued. Thereafter, the single justice denied the petition. Petitioner then filed a memorandum and appendix pursuant to S.J.C. Rule 2:21 seeking a stay in the trial court. The Supreme Court denied relief, holding that this case did not present a situation where extraordinary relief from this Court was required, and the single justice correctly denied relief under Mass. Gen. Laws ch. 211, 3.

Southcoast Hospitals Group v. NLRB

Southeast Hospitals Group was formed through a merger of three hospitals, one of which had a union workforce. The union’s collective bargaining agreement granted union members a hiring preference when filling union positions. Southcoast, however, adopted a policy that grants nonunion employees a similar hiring preference for nonunion positions. The union commenced this action by filing an unfair labor practice charge with the National Labor Relations Board’s Regional Director. The Regional Director then filed a complaint with the Board, arguing that the policy unlawfully discriminates against union members. The Board concluded that the policy was invalid because it was not supported by a legitimate and substantial business justification and ordered Southcoast to rescind the policy and provide affirmative relief to affected employees. The First Circuit vacated the Board’s decision, holding that the decision was not supported by substantial evidence. Remanded.

800 River Road Operating Co. v. NLRB

Woodcrest seeks to set aside the Board's order requiring it to bargain with the Union and to remand for a new election. The court rejected Woodcrest's claims that the denial of its request to subpoena six individuals irreparably prejudiced its case; that the Hearing Officer abused his discretion when he refused to permit eight, already-subpoenaed witnesses to testify; and that the Hearing Officer abused his discretion by refusing to allow Woodcrest to treat Vergel de Dios as a hostile witness. Therefore, the court held that the Board did not abuse its discretion and denied Woodcrest's request to set aside the Board's order and to remand with direction for a new election. The court granted the Board's cross-application for enforcement of the same order.

Brown Jordan International, Inc. v. Carmicle

The parties filed cross-complaints after Christopher Carmicle was terminated from Brown Jordan. After the district court entered judgment for Brown Jordan, Carmicle appealed. Carmicle raised issues regarding the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. 1030, the Stored Communications Act (SCA), 18 U.S.C. 2701, wrongful discharge, and breach of an employment agreement. The court concluded that Carmicle’s CFAA arguments fail because Brown Jordan suffered “loss” as defined in the CFAA; Carmicle waived his unopened-versus-opened-email argument under the SCA because he did not fairly present it to the district court, and Brown Jordan showed Carmicle exceeded his authorization in accessing the emails of other Brown Jordan employees; and the district court did not err in granting summary judgment on Carmicle’s wrongful discharge claim or in concluding that Carmicle was terminated for cause as defined by the Employment Agreement. Accordingly, the court affirmed the judgment.

Lopez-Erquicia v. Weyne-Roig

Plaintiff filed suit against Puerto Rico’s Insurance Commissioner (Defendant), claiming that Defendant eliminated her job as a director within the Office of the Insurance Commissioner on account of her political affiliation. The district court denied Defendant’s motion for summary judgment as Plaintiff’s federal discrimination claims for damages, declaratory relief, and injunctive relief. In so holding, the court rejected Defendant’s argument that her qualified immunity defense entitled her to summary judgment on Plaintiff’s federal damages claim. The First Circuit reversed the district court’s denial of qualified immunity and remanded for further proceedings, holding that a reasonable official in Defendant’s position could have understood the First Amendment not to protect Plaintiff against politically motivated removal from her job. Remanded for further proceedings.


Plaintiffs, two groups of satellite television technicians, filed suit alleging that defendants, through a web of agreements with various affiliated and unaffiliated service providers, are jointly and severally liable for violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq. The district court dismissed the pleadings because plaintiffs failed to adequately allege that DIRECTV and DirectSat jointly employed plaintiffs. The court concluded that the district court relied on out-of-circuit authority that the court has since rejected as unduly restrictive in light of the broad reach of the FLSA. The court concluded that, under the appropriate legal standards, plaintiffs have alleged sufficient facts to make out a plausible claim that defendants jointly employed them as DIRECTV technicians; defendants may be held jointly and severally liable in the event that plaintiffs performed uncompensated overtime work for defendants during plaintiffs’ respective periods of employment; and the court reversed the dismissal of plaintiffs' FLSA and Maryland state-law claims against defendants because they have sufficiently pleaded that DIRECTV jointly employed them as satellite technicians, and that they are owed some amount of unpaid compensation. The court remanded for further proceedings.

Salinas v. Commercial Interiors, Inc.

Plaintiffs filed suit against defendants, alleging violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq.; the Maryland Wage and Hour Law, Md. Code Ann., Lab. & Empl. 3-401 et seq.; and the Maryland Wage Payment and Collection Law, Md. Code Ann., Lab. & Empl. 3-501 et seq. The district court granted summary judgment to Commercial because Commercial did not jointly employ plaintiffs where J.I. and Commercial entered into a traditionally recognized legitimate contractor-subcontractor relationship and did not intend to avoid compliance with the FLSA or Maryland law. The court concluded, however, that the legitimacy of a business relationship between putative joint employers and the putative joint employers’ good faith are not dispositive of whether entities constitute joint employers for purposes of the FLSA. The court held that joint employment exists when (1) two or more persons or entities share, agree to allocate responsibility for, or otherwise codetermine—formally or informally, directly or indirectly—the essential terms and conditions of a worker’s employment and (2) the two entities’ combined influence over the essential terms and conditions of the worker’s employment render the worker an employee as opposed to an independent contractor. Applying this test to this case, the court concluded that Commercial jointly employed plaintiffs for purposes of the FLSA and the analogous Maryland law. Accordingly, the court reversed the judgment.

Alaska Airlines, Inc. v. Schurke

This case arose out of a dispute between a flight attendant and the airline about her sick leave. Plaintiff claimed an entitlement to use her December vacation leave for her child’s illness without being charged points, under the Washington Family Care Act, Wash. Rev. Code 49.12.270(1). The Department determined that plaintiff was entitled to use her December vacation leave to care for her child in May, and the airline was fined $200 for violating the statute. The district court subsequently granted summary judgment against the airline’s preemption claim under the Railway Labor Act (RLA), 45 U.S.C. 151-188. The court concluded that the state law right and the collective bargaining agreement are inextricably intertwined. Minor disputes are preempted by the RLA and must be dealt with first through a carrier’s internal dispute resolution process, and then a System Adjustment Board comprised of workers and management. In this case, the court concluded that the question whether plaintiff could use her vacation leave in advance of her scheduled time for this purpose is to be determined by the dispute resolution process in the collective bargaining agreement, not by the state claim resolution process. Because the district court erred by rejecting preemption, the court reversed and remanded.

Thomas v. Chevron U.S.A., Inc.

Quindon Thomas, an employee of a contractor at Chevron’s petroleum refinery plant in Pascagoula, was injured on the job. Thomas accepted workers’ compensation benefits provided by Chevron for his injuries. Thomas then sued Chevron and one of its employees for the same injuries. Chevron asserted the exclusive-remedy defense under the Mississippi Workers’ Compensation Act and the circuit court granted summary judgment to Chevron. Thomas appealed, arguing the trial court erred in granting summary judgment. After review, the Mississippi Supreme Court found that Chevron was not a statutory employer of Thomas and therefore was not immune from tort liability. Accordingly, the Court reversed the trial court’s grant of summary judgment in favor of Chevron, reversed the trial court’s denial of Thomas’s cross-motion for summary judgment, and remanded for a trial on the merits.

Sieden v. Chipotle Mexican Grill, Inc.

Plaintiff filed suit against Chipotle, alleging claims under the Minnesota Human Rights Act (MHRA), Minn. State. 363A et seq., for reprisal, age discrimination, and sexual orientation discrimination. On appeal, plaintiff challenges the district court's grant of summary judgment on his reprisal claim. Chipotle claims that he was discharged due to declining work effort and performance. The court concluded that plaintiff failed to raise a genuine issue of material fact as to whether Chipotle’s stated reason for terminating his employment was pretextual. Therefore, the district court correctly determined that his reprisal claim under the MHRA fails as a matter of law and the court affirmed the judgment.

Reynaga v. Roseburg Forest Products

Plaintiff filed suit against his former employer, Roseburg, alleging hostile work environment, disparate treatment, and retaliation in violation of state and federal civil rights laws. The district court granted Roseburg’s motion for summary judgment. In regard to the hostile work environment claim, the court held that Roseburg employee Timothy Branaugh's conduct was sufficiently severe or pervasive to create a hostile work environment, and Roseburg knew about Branaugh’s misconduct and failed to take effective remedial action. In regard to the disparate treatment claim, the court held that plaintiff demonstrated the necessary prima facie case to survive summary judgment based on Roseburg terminating plaintiff's employment and breaking into plaintiff's locker. The court held that there is a genuine dispute of fact as to Roseburg’s discriminatory intent regarding those challenged actions. Finally, in regard to the retaliatory termination claim, the court held that a reasonable trier of fact could conclude that Roseburg’s proffered reason for terminating plaintiff was pretextual. Accordingly, the court reversed and remanded the claims of hostile work environment, disparate treatment, and retaliation. The court affirmed the district court's grant of summary judgment on plaintiff's other claims.

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