Articles Posted in Labor & Employment Law

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The Fifth Circuit affirmed the district court's grant of summary judgment for Empire in a suit filed under the Fair Labor Standards Act (FLSA), 29 U.S.C. 206(a), 207(a). Plaintiffs alleged that Empire failed to compensate them for pre-shift wait time under the FLSA. The court held that the Portal-to-Portal Act, 29 U.S.C. 254(a), excludes the pre-shift wait time of plaintiffs from being compensable under the FLSA. In this case, the integral and indispensable test was the relevant test for determining the compensability of plaintiffs' pre-shift wait time. Because this preliminary wait time was not intrinsic to their principal activities, it was not compensable under the Portal-to-Portal Act. View "Bridges v. Empire Scaffold, LLC" on Justia Law

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The Fifth Circuit treated plaintiff's petition for rehearing en banc as a petition for panel rehearing and denied the petition for panel rehearing. The court withdrew its prior opinion and substituted the following opinion. The court affirmed the district court's grant of summary judgment against plaintiff on his failure to accommodate and hostile work environment claims. The court held that plaintiff's failure to accommodate claim could reasonably be expected to, and in fact did, grow out of his charge of discrimination; there was insufficient evidence to prove defendants' knowledge of plaintiff's disability where defendants did not attribute plaintiff's limitation -- sensitivity to noise -- to a physical or mental impairment; a jury could find that the harassment plaintiff experienced was sufficiently severe or pervasive to alter the terms and conditions of his employment; but, because plaintiff did not challenge on appeal the district court's determination that he unreasonably failed to avail himself of the procedures set forth in the anti-harassment policies maintained by defendants, he forfeited his objection to this determination. View "Patton v. Jacobs Engineering Group" on Justia Law

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The Fifth Circuit denied Creative's petition for review of the Board's reversal of the ALJ's conclusion that Creative was not a "perfectly clear" successor and accordingly was within its rights to set initial terms and conditions of employment instead of bargaining with the incumbent union. The court held that Creative was not a perfectly clear successor where Creative's June 2 announcement of new terms was untimely and the majority of Creative's hoppers were not provided sufficient notice of the new terms. The court rejected Creative's argument that it did not violate its bargaining obligation because at the time Creative unilaterally set terms, the Union had not sent a bargaining demand. The court declined to require a union bargaining demand to trigger a perfectly clear successor's duty not to unilaterally set initial terms of employment. Finally, the court held that because Creative did not timely object to Acting General Counsel Lafe Solomon's authority to file the complaint, the court's review of any such argument was barred. View "Creative Vision Resources, LLC v. NLRB" on Justia Law

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Adams and MJLM petitioned for review of the Board's order holding them liable for unfair labor practices in violation of the National Labor Relations Act, 29 U.S.C. 151 et seq. The Fifth Circuit denied the petition for review and granted the Board's cross-application for enforcement, holding that the record contained substantial evidence of antiunion animus; Adams's unilateral imposition of initial terms and conditions of employment violated the Act; the Board did not err in ordering Adams to recognize the union as the bargaining representative for the Residential Coordinators; the Board did not err in finding that Adams violated the Act by refusing to grant the union president access to the collective bargaining sessions; and the Board's finding that Adams and MJLM were joint employers was supported by substantial evidence. View "Adams and Associates, Inc. v. NLRB" on Justia Law

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The Fifth Circuit reversed the district court's grant of summary judgment to the town in plaintiff's action alleging that he was entitled to notice and an opportunity to respond before being terminated as fire chief. The court held that the evidence was sufficient to preclude summary judgment on the question whether plaintiff was a member of the Louisiana civil service and entitled to due process before losing his job. The court remanded for further proceedings. View "Maurer v. Independence Town" on Justia Law

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LogistiCare petitioned for review of the Board's conclusion that the company's requirement, that its employees and applicants for employment sign a class or collective action waiver, violated Section 8(a)(1) of the National Labor Relations Act (NLRA), 29 U.S.C. 158(a)(1). The Fifth Circuit granted the petition for review, holding, under the court's binding precedent, that the waiver did not violate Section 8(a)(1) explicitly, and the waiver could not otherwise be reasonably understood to violate the Act. View "LogistiCare Solutions, Inc. v. NLRB" on Justia Law

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Abrogation of the asserted right to participate in class and collective actions was not abrogation of a Section 7 right and therefore does not constitute an unfair labor practice under Section 8(a)(1) of the National Labor Relations Act. Covergys sought review of the Board's determination that it violated the Act both by requiring job applicants to sign a class and collective action waiver and by subsequently seeking to enforce the waiver. The Fifth Circuit granted the application for review, holding that Convergys did not engage in an unfair labor practice for purposes of Section 8(a)(1) by requiring applicants to sign a waiver or by seeking to enforce the waiver. View "Convergys Corp. v. NLRB" on Justia Law

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Plaintiffs filed suit under the Fair Labor Standards Act (FLSA), alleging that they were misclassified as exempt from the overtime pay rule and seek backpay. The Fifth Circuit reversed the district court's summary judgment that the fluctuating workweek method applied as a matter of law. The court held that the underlying factual issue upon which the applicability of that method was predicated, what the employees clearly understood, should be decided at trial in due course. Consequently, the court also reversed the district court's judgment dismissing Plaintiffs Hills and Luke from the suit. Hills and Luke's claims must be remanded so that the district court may reinstate them into the pending lawsuit and move forward with proceedings. View "Hill v. Entergy Operations, Inc." on Justia Law

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Plaintiff filed suit on behalf of himself and others similarly situated, alleging that Latshaw conducted a plant closing or mass layoff without providing advanced notice in violation of the Worker Adjustment and Retraining Notification Act of 1988 (WARN Act). The Fifth Circuit affirmed the district court's grant of summary judgment for Latshaw. The court held that plaintiff has not presented evidence to create a genuine dispute of material fact that any drilling rigs that together suffered employment losses sufficient to trigger the WARN Act were in reasonable geographic proximity; the district court did not err in awarding complete summary judgment dismissing plaintiff's case in its entirety; and plaintiff has not presented evidence or briefed the application of his other theories on appeal. View "Meadows v. Latshaw Drilling Co." on Justia Law

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T-Mobile challenged the Board's determination that four provisions from its employee handbook violated the National Labor Relations Act because they discouraged unionizing or other concerted activity protected by the Act. Provision (1) encouraged employees to maintain a positive work environment; (2) prohibited arguing or fighting, failing to treat others with respect, and failing to demonstrate appropriate teamwork; (3) prohibited all photography and audio or video recording in the workplace; and (4) prohibited access to electronic information by non-approved individuals. The Fifth Circuit held that the Board erred in finding that a reasonable employee would construe policies (1), (2), and (4) to prohibit protected activity. However, the court agreed with the Board's finding that a reasonable employee would construe policy (3) to prohibit protected activity. Accordingly, the court granted in part and denied in part the petition for review. View "T-Mobile USA, Inc. v. NLRB" on Justia Law