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Labor & Employment

Labor & Employment – Tort/Negligence – Wrongful Termination Claim – Background Check – Expunged Conviction (access required)

Cervantes v. Wells Fargo Bank, N.A., Although plaintiff alleges that the purpose of the S.C. expungement statute is thwarted if the defendant-employer is allowed to consider plaintiff’s expunged conviction in deciding whether to fire her, plaintiff has not cited any S.C. statute that criminalizes or prohibits employers from considering expunged convictions in employment decisions.

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Labor & Employment – Union OK’d Despite ‘Inflammatory’ Racial Comments (access required)

Ashland Facility Operations LLC v. NLRB A nursing home cannot overturn a vote by its certified nursing assistants (CNAs) and other employees for union representation by arguing that the election was improperly influenced by racially inflammatory comments by a local NAACP official, and the 4th Circuit affirms an order to bargain issued by the National Labor Relations Board.

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Labor & Employment – ADA Claim – 2008 Amendments – No Retroactive Application – Back Pain – No Substantial Limitation (access required)

Reynolds v. American Nat’l Red Cross A former employee of an American Red Cross Chapter has no grounds for his suit alleging disability discrimination based on his allegations that he was expected to exceed a 15-pound limit on lifting due to his back pain and was fired after he complained about his pain and inquired about filing for workers’ compensation; the 4th Circuit affirms summary judgment for the employer and dismisses its cross-appeal contending it was not an “employer” under the Americans with Disabilities Act.

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Labor & Employment – Collective Bargaining Agreement – ERISA Contributions – Employer’s Alleged Overpayment – No Reimbursement (access required)

U.S. Foodservice Inc. v. Truck Drivers & Helpers Local Union No. 355 Health & Welfare FundIn this dispute over employer U.S. Foodservice Inc.’s alleged overpayment of contributions to employee health and pension funds under the parties’ Collective Bargaining Agreements, the 4th Circuit says the plan administrator did not abuse its discretion in refusing to reimburse employer for making health fund contributions that accounted for some overtime hours; the judgment ordering reimbursement for the employer contributions is reversed.

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Labor & Employment – ADA – Medical Leave – Medical Examination – Termination (access required)

Davenport v. Michelin North America, Inc. Where plaintiff alleges that, despite his own doctors’ releasing him to return to work, a company doctor’s work-hardening program prescription and work restrictions caused plaintiff to miss his deadline for returning to work after a medical leave, leading to plaintiff’s termination, the “business necessity” standard does not entitle defendant to dismissal of plaintiff’s claim under the Americans with Disabilities Act.

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Labor & Employment – Health Care Quality Improvement Act – OB-GYN – Hospital Privilege Revocation (access required)

Hein-Muniz v. Aiken Regional Medical Centers While the plaintiff obstetrician was already on 100 percent case review status, she delivered a stillborn baby. Defendants’ multi-step review of plaintiff’s actions and judgment – culminating in the revocation of her hospital privileges -- complied with the Health Care Quality Improvement Act (HCQIA).

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Labor & Employment – FLSA – Civil Practice – Collective Action – Conditional Class Certification (access required)

MacGregor v. Farmers Insurance Exchange Based on limited discovery – and thus subject to an intermediate level of scrutiny – plaintiffs have successfully defined a class of property claim representatives (PCRs) who were allegedly subject to unwritten policies implemented by defendant’s Atlanta Zone Branch Manager to violate defendant’s overtime policy by discouraging PCRs from accurately reporting their hours.

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Labor & Employment – Contract – Confidentiality & Holdover Agreements – Inventor – Intellectual Property (access required)

Milliken & Co. v. Morin In an employment contract, a confidentiality agreement and an assignment of inventions do not restrain trade; therefore, they are not strictly construed against the employer. In this case, the confidentiality agreement and patent assignment are reasonable and enforceable.

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