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Sample Weekly Opinion Summaries
Labor & Employment Law

July 05-09, 2010 FindLaw.com Weekly Labor & Employment Law Newsletter
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Table of Contents

Labor & Employment Law

  • O'Donnell v. Boggs
  • In re Novartis Wage & Hour Litig.
  • District Lodge 26 v. United Techs. Corp.
  • Pichardo v. Virgin Islands Comm'r of Labor
  • Aikens v. Ingram
  • Moss v. BMC Software, Inc.
  • Wisbey v. City of Lincoln
  • True v. State of Neb.
  • Breiner v. Nev. Dep't of Corr.
  • Small v. Operative Plasterers' & Cement Masons' Int'l. Assn.
  • Pharmaceutical Care Mgmt. Corp. v. Dist. of Colum.
  • Koszdin v. State Comp. Ins. Fund
  • Nordstrom Comm'n Cases
  • Stevenson v. Bd. of Ret. of the Orange County Employees' Ret. Sys.
  • Roden v. Amerisourcebergen Corp.

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Labor & Employment Law

United States First Circuit, 07/08/2010
O'Donnell v. Boggs
In plaintiff's suit against her former supervisor and Board members claiming tortious interference with contractual relations, district court's grant of defendants' motion for summary judgment is affirmed as plaintiff's tortious interference claims are preempted as no court or jury could decide whether the Board's actions were improper without interpreting the CBA's terms. Read more...

United States Second Circuit, 07/06/2010
In re Novartis Wage & Hour Litig.
In an action by pharmaceutical company salespersons for overtime pay under the Fair Labor Standards Act (FLSA), summary judgment for defendant is vacated where, under the Department of Labor's regulations, the salespersons were not outside salesmen or administrative employees for purposes of the FLSA. Read more...

United States Second Circuit, 07/08/2010
District Lodge 26 v. United Techs. Corp.
In an action claiming that defendant's announced plans to close two facilities in Connecticut and move the work performed at those facilities outside the State violated the collective bargaining agreement between the company and the plaintiff union, a permanent injunction in favor of plaintiffs is affirmed where: 1) the district court did not err in finding that defendant's actions did not constitute "every reasonable effort" to preserve work within the bargaining unit; and 2) the district court did not err in finding that the Closure Plan violated defendant's implied covenant of good faith and fair dealing. Read more...





United States Third Circuit, 07/08/2010
Pichardo v. Virgin Islands Comm'r of Labor
In plaintiff's suit against her former employer for wrongful termination, petition for a writ of certiorari is granted and the decision of the newly-created Supreme Court of the Virgin Islands is affirmed where: 1) the degree of deference afforded to a territorial supreme court allows for reversal on matters of local law only when "clear or manifest error is shown"; and 2) there is no manifest error in the Virgin Island Supreme Court's decisions, including that the writ of review under section 70 is limited to consideration of issues for which an objection was raised and that section 1422 cannot be invoked to seek review of decisions by the DOL, given the existence of section 70. Read more...

United States Fourth Circuit, 07/06/2010
Aikens v. Ingram
In a former colonel's suit against his former colleagues at the North Carolina Army National Guard, claiming that they violated his Fourth Amendment rights by wrongfully intercepting, reading, and forwarding his e-mails while he was deployed in Iraq, district court's order dismissing the action without prejudice for lack of subject matter jurisdiction for failure to exhaust any available intramilitary remedies is affirmed as the district court did not abuse its discretion in denying plaintiff's motion to reopen the judgment under Fed Rule of Civ. Proc. 60(b)(6), because to the extent that plaintiff rests his argument on the district court's earlier purportedly erroneous dismissal of his case, his remedy was to appeal, not to file a Rule 60(b)(6) motion. Read more...

United States Fifth Circuit, 07/06/2010
Moss v. BMC Software, Inc.
In an action claiming that defendant violated the Age Discrimination in Employment Act (ADEA), by declining to hire plaintiff when he applied for a Staff Legal Counsel position, summary judgment for defendant is affirmed where plaintiff failed as a matter of law to show that he was clearly more qualified than the candidate hired in order to establish pretext and had not proffered any direct evidence of discrimination. Read more...

United States Eighth Circuit, 07/06/2010
Wisbey v. City of Lincoln
In an action by an emergency dispatcher against her former municipal employer for violations of the Americans with Disabilities Act and the Family Medical Leave Act, summary judgment for defendant is affirmed where: 1) the nature of plaintiff's position supported defendant's claim that the fitness-for-duty exam was a business necessity; and 2) defendant did not retaliate against plaintiff in violation of the FMLA. Read more...

United States Eighth Circuit, 07/09/2010
True v. State of Neb.
In an action challenging the termination of plaintiff's employment at a Nebraska correctional facility because he refused to allow a random, suspicionless search of his vehicle, summary judgment for defendants is affirmed in part where, even assuming that employees parking in the lot at issue were similarly situated to visitors parking there, differential treatment of the two groups was rationally related to a legitimate state interest. However, the judgment is reversed in part where there was a dispute as to the circumstances of inmate access to vehicles in the lot at issue -- facts material to the reasonableness of the search at its inception. Read more...

United States Ninth Circuit, 07/08/2010
Breiner v. Nev. Dep't of Corr.
In an action challenging the State of Nevada's policy of hiring only female correctional lieutenants at a women's prison, summary judgment for defendants is reversed where: 1) Title VII protects the ability to pursue one's own career goals without being discriminated against on the basis of race or sex, even if others of the same race or sex were not subject to disadvantage; and 2) defendants did not show that "all or nearly all" men would tolerate sexual abuse by male guards, or that it is "impossible or highly impractical" to assess applicants individually for this qualification. Read more...

United States Ninth Circuit, 07/08/2010
Small v. Operative Plasterers' & Cement Masons' Int'l. Assn.
In an action by a union against a contractor alleging violation of wage and hour laws and tortious interference with contract, the district court's injunction against state court proceedings pending a decision by the National Labor Relations Board is affirmed where, because any favorable resolution of the state lawsuits would directly conflict with the Board’s section 10(k) determinations, under Local 32 and Bill Johnson's, the union's suits had an illegal objective. Read more...

United States DC Circuit, 07/09/2010
Pharmaceutical Care Mgmt. Corp. v. Dist. of Colum.
In an action seeking a declaration that Title II of the District of Columbia's Access Rx Act of 2004 was preempted by ERISA and various constitutional provisions, summary judgment for plaintiffs is affirmed in part where sections 48-832.01(a), (b)(1), and (d) of Title II were pre-empted by ERISA insofar as they applied to a pharmaceutical benefits manager (PBM) under contract with an employee benefit plan (EBP) because they "related to" an EBP. However, the judgment is reversed in part where sections 48-832.01(b)(2) and (c) were not preempted by ERISA, because each may be waived by an EBP in its contract with a PBM. Read more...

California Court of Appeal, 07/06/2010
Koszdin v. State Comp. Ins. Fund
In six class action suits brought by two attorneys against employers and workers' compensation insurance carriers, claiming that they failed to pay interest owed on attorney's fee awards issued by the WCAB, dismissal of the complaint following the sustaining of a demurrer for lack of subject matter jurisdiction is affirmed where: 1) under the relevant provisions of the Workers' Compensation Act, plaintiffs have standing to seek interest on the attorney's fees awarded directly to them by the WCAB; but 2) the trial court lacks jurisdiction to entertain the claims for unpaid interest where the WCAB did not expressly order the payment of interest in its attorney's fee awards. Read more...

California Court of Appeal, 07/07/2010
Nordstrom Comm'n Cases
In class action suits against Nordstrom, claiming that the department store's policy of paying net sales commission to its commissioned sales employees violated section 221 and 203 of the Labor Code, trial court's order overruling a class member's objection to the parties' settlement is affirmed as the trial court did not abuse its discretion in overruling the objection and approving the settlement as the court's analysis of the settlement's terms correctly considered the merits of the class's claims and Nordstrom's defenses. Read more...

California Court of Appeal, 07/07/2010
Stevenson v. Bd. of Ret. of the Orange County Employees' Ret. Sys.
In plaintiff's petition for administrative mandate challenging the decision of the Board of Retirement of the Orange County Employees Retirement System (Board), excluding his overtime in calculating his pension allowance, trial court's denial of the petition is affirmed as the administrative record contains substantial evidence showing plaintiff's grade or class within the meaning of section 31461 was that of investigator, and as such, the overtime he worked that was unique to investigators in the narcotics bureaus was properly excluded from his "compensation earnable". Read more...

California Court of Appeal, 07/08/2010
Roden v. Amerisourcebergen Corp.
In a dispute concerning plaintiff-former CEO's entitlements arising out of his employment termination, the judgment of the trial court is affirmed in part, reversed in part and remanded where: 1) portion of the trial court's order overturning the review official's award and awarding plaintiff a $14,432,141.74 change in control benefit is reversed as the review official properly followed actuarial principles, methods and assumptions found to be appropriate by the plan actuary; 2) trial court was correct in affirming the decision of the review official to the effect the plaintiff is not, at this time, entitled to any payment with respect to potential excise tax liability; 3) the trial court was correct in affirming the decision of the review official as to the application of prejudgment interest at the federal bank discount rate; 4) the trial court did not err in applying the state statutory postjudgment interest rate, and in applying postjudgment interest from the date of the order that is subject of this fourth appeal; 5) the trial court did not err in providing that payments made pursuant to the order are to be applied first to interest and then to principal; and 6) the trial court did not err in declining to award plaintiff attorney fees and costs as the court did not abuse its discretion in concluding that neither party was the prevailing party at trial. Read more...
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