Recent Employment Relations Law
Representation Reviewed and Questioned
It was held that when a law firm’s partner represents a city department at an advisory arbitration, the principles of due process prohibit the decision maker from being advised on the matter by a different partner from the same law firm. That’s because the law partners owe each other fiduciary duties and the advisory partner is in the position of reviewing the efficacy of the advocate’s work, there is a clear appearance of bias that is so high it can’t be constitutionally tolerated.
For that reason, the trail court’s decision denying the writ petition of the appellant – a police officer who is fighting termination. The officer asserted a due process challenge to the City of Pomona’s rejection of an arbitrator’s award when the officer was reinstated.
The case involved two police officers who had previously dated. One officer called the local police after she saw the other using the Jacuzzi at her complex. The Pomona Police Department found that the male officer had engaged in conduct unbecoming and he was fired. But the arbitrator said his termination should be converted into suspension without pay or benefits.
The city was represented by a lawyer at the arbitration hearing who was from the same firm as the city’s chief labor negotiator. The city had used the same firm in closed session negotiations. The officer objected to the same firm acting as an advocate for the department and an advisor to the City Council.
The Second Appellate District held that due process prohibited the representation by the same firm. In other words, the same firm that represented the city department at the arbitration hearing cannot later be advised in reviewing that decision by another lawyer from the same form. Sabey v. City of Pomona (CA2/2 4/16/13 B239916)
Collective Action Mooted by Offer
A collective action was brought under the Fair Labor Standards Act (FSLA) on behalf of a woman and “other employees similarly situated”. After the respondent ignored petitioners offer of judgment under Federal Rule of Civil Procedure 68, the District Court found that the offer fully satisfied her suit. Since no one else had joined it, they concluded the suit was moot and dismissed it for lack of subject matter jurisdiction. The Supreme Court ruled that there was no support for the respondent’s claim that the purposes served by collective action provisions would be frustrated by defendant’s use of the offer to pick off named plaintiffs before the end of the action, because the respondent conceded that petitioners offer provided her completed relief and she asserted no continuing economic interest in shifting attorneys fees and costs. Genesis HealthCare Corp. v. Symczyk (US 11–1059 4/16/13)
ERISA Argument Over Accident Recovery
Petitioner US Airways sued under the Employee Retirement Income Security Act (ERISA) to recover $66,866 in medical expenses paid for injuries suffered by responded McCutchen, a US Airway employee. McCutchen was injured in a car accident with a third party. The insurance plan entitled US Airways to reimbursements if McCutchen recovered money from a third party. McCutchen had received $66,000 recovery, after her lawyers secured $110,000 in payments (minus the attorneys fees). McCutchen argued that absent overrecovery on his part, US Airways right to reimbursement did not kick in, and that US Airways had to contribute its fair share of the costs to get the recovery, so any reimbursement had to be reduced by 40 percent to cover the lawyer’s contingency fee. The district court held that in an action based on an agreement, the ERISA plan’s terms govern. Neither double recovery or common fund rules can override the contract. But as the plan was silent on the allocation of attorneys’ fees, the common fund doctrine would be used to fill in the void, because without it, the insurer could ride free on the beneficiaries efforts. US Airways, Inc. v. McCutchen (US 11–1285 4/16/13)
Sexual Harassment Plaintiff Must Make a Prima Facie Case
A ruling in favor of Defendant was made April 1, 2013 on a Title VII action claiming sexual harassment and retaliatory discharge in an appeal from a US District Court decision in a Nevada case. The district court granted summary judgment to Defendant. Plaintiff appealed that ruling to the 9th Circuit. In part, the panel held the Plaintiff did not make a prima facie sexual harassment case because the evidence did not support a finding that the conduct of the co-worker or supervisor was severe or pervasive enough to alter the plaintiff’s conditions of employment enough so that a reasonable person would consider it hostile or abusive. They found the plaintiff provided sufficient evidence to raise a material question of fact as to whether or not her complaints were a “but for” cause of her termination. Westendorf v. West Coast Contractors
Failure to Plead Amount in Controversy Means the Statute of Limitations Clock Hasn’t Started
In a Ninth U.S. Circuit Court of Appeals case decision filed February 25, 2013, it was ruled that because Plaintiff had failed to allege an amount in controversy, the statute of limitations for removal hadn’t started. Kuxhausen v. BMW Financial Services NA LLC.
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