Author Archives: Daniel D. Fassio

“FULL OF SOUND AND FURY, SIGNIFYING (ALMOST) NOTHING”: SUPREME COURT PASSES ON LARGER ISSUES IN FLSA COLLECTIVE ACTION DECISION

Though traditional class actions have long been barred under the Fair Labor Standards Act, Congress provided within the statute a provision allowing “collective actions.”  The provision provided a vehicle for groups of employees with similar grievances to be represented by a representative plaintiff.  Though the mechanics functioned slightly differently (i.e., potential plaintiffs in an FLSA collective action must opt-in to the suit, rather than opting out under traditional class action rules), the general premise was the same.  These actions could carry high costs for employers, especially when large numbers of employees were included in the collective action.  One particular strategy which has been developed for dealing with class actions and collective actions is using an “offer of judgment” under Rule 68 of the Federal Rules of Civil Procedure to render moot the lead or representative plaintiff’s claim.  Read More »

THE GLOVES ARE COMING OFF: OHIO SUPREME COURT HOLDS IN HEWITT V. THE L.E. MYERS CO. THAT PERSONAL SAFETY EQUIPMENT NOT A “SAFETY GUARD” FOR PURPOSES OF DELIBERATE INTENT ACTIONS

Recently, the Ohio Supreme Court decided a key case regarding a statutory exemption to workers’ compensation laws for so-called “deliberate intent” actions.  The Ohio statute in question allows an individual injured on the job to recover under a tort theory of liability if the individual can prove the employer committed a tortious act with the intent to injure the worker or with the belief the injury was substantially certain to occur.  This can include removing a safety guard or precaution from the workplace, which creates a rebuttable presumption of intent to injure.

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I’M NOT A SUPERVISOR; I JUST PLAY ONE AT FAMILY DOLLAR: OVERTIME SUIT DISMISSED DESPITE PREVALENCE OF NONEXEMPT DUTIES

Recently, a federal court in Kentucky dismissed a putative class action suit against Family Dollar, Inc. brought by store managers, stating that the claimants were exempt under a Kentucky labor law statute that delineates employees from supervisors.  The named plaintiffs, Donna Barker and Janet DeKalands, claimed that their working conditions at Family Dollar prevented them from receiving applicable overtime pay, mandatory rest breaks, and additional compensation due for working seven days a week.

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DELAYED REACTION: EMPLOYER’S APPEAL OF UNEMPLOYMENT BENEFIT AWARD GIVES RISE TO TITLE VII RETALIATION CASE

On October 4, the United States District Court for the Eastern District of Pennsylvania issued a rather interesting decision regarding the intersection of Title VII rights and unemployment compensation proceedings.  In Stezzi v. Citizens Bank of Pennsylvania, the court held that an employee can base a Title VII retaliation claim on an employer’s termination of unemployment benefits.

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BE CAREFUL WHAT YOU BARGAIN FOR:FMLA RIGHTS MAY BE ALTERED BY COLLECTIVE BARGAINING AGREEMENT

Recently, the United States District Court for the Northern District of Ohio took up the issue of whether the period for calculating eligibility for leave pursuant to the Family Medical Leave Act could be modified by contract or a collective bargaining agreement in Valentino v. Wickliffe City School District Board of Education, et al. 

 

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BE CAREFUL WHAT YOU BARGAIN FOR : FMLA RIGHTS MAY BE ALTERED BY CBA

          Recently, the United States District Court for the Northern District of Ohio took up the issue of whether the period for calculating eligibility for leave pursuant to the Family Medical Leave Act could be modified by contract or a collective bargaining agreement in Valentino v. Wickliffe City School District Board of Education, et al. 

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NEW MINE SAFETY STATUTE REQUIRES DRUG TESTING PROGRAMS OF MINING INDUSTRY EMPLOYERS

Recently, the West Virginia Legislature passed HB 4531, a mine health and safety bill aimed in part at curbing substance abuse by miners and promoting safety in the workplace.  The substance abuse prevention section of the law, codified at W. Va. Code §22A-1A-1 et seq., requires employers to implement a substance abuse screening policy that requires both pre-employment and random drug testing beginning January 1, 2013.  The statute applies to all employers who “employ certified persons who work in mines, regardless of whether the employer is an operator, contractor, a subcontractor or otherwise.”  The Office of Miner’s Health, Safety and Training (“OMHST”) is charged with overseeing the new statute’s implementation and is given authority to make additional rules and regulations to enforce its provisions.

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MINOR V. BOSTWICK LABORATORIES: INTRACOMPANY COMPLAINTS CONSTITUTE PROTECTED ACTIVITY UNDER THE FLSA’S ANTI-RETALIATION PROVISION

In April of 2011, the Supreme Court of the United States issued its opinion in Kasten v. Saint-Gobain Performance Plastics Corp., holding that any employee making an oral complaint which would put an employer on notice of an alleged FLSA violation is enough to trigger the protections provided in the anti-retaliation provision.  Click here for our recap of Kasten.   The Kasten Court did not directly address the issue of whether an oral complaint within a company could trigger protection under the anti-retaliation provision of the FLSA.  This provided some hope for employers, leaving the flexibility to argue that the holding in Kasten still required an external complaint which triggered official proceedings, even if the formality requirements were thrown by the wayside by the Supreme Court’s decision.  Recently, in Minor v. Bostwick Laboratories, the Fourth Circuit (which covers West Virginia) seemingly foreclosed that possible argument for courts within its jurisdiction and created an even more permissive standard for triggering the protections of the anti-retaliation provision of the FLSA. 

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