NORTHWEST HUMAN RESOURCE

MANAGEMENT ASSOCIATION

October 1, 2012

Recent Trends and Developments in

Employment Law

Gregory S. Fisher

Scope

Alaska Legislature

U.S. Supreme Court

Last Term and Preview

A few recent Ninth Circuit

and Alaska Supreme Court cases

Odds and ends from “Agency Land”

Other interesting trends

Editor’s Discretion

Alaska Legislature—Gridlock

Recently completed Second Session of the 27th

Legislature (2011-2012)

Relatively little accomplished as Alaska

Legislature was preoccupied with ACES, natural

gas pipeline, and other natural resource and/or

revenue measures

However, Two Actions of Interest

Veteran employment preference

Texting now prohibited

Alaska Legislature

HCS CSSB 136 (FIN) adds AS 43.20.047 and

provides for a tax credit for employment of a

previously unemployed veteran

Veteran must have been unemployed for at

least 4 weeks prior to employment

Veteran must have been discharged within

past 10 years if disabled, or 2 years if

nondisabled

Alaska Legislature

HB 255 (now in effect as of May 11, 2012)

Amends AS 28.35.161 and prohibits texting while

driving

Why include here?

Couriers, freight forwarders, delivery services

U.S. Supreme Court Cases

A few of the more interesting opinions

Qualified Immunity – Filarsky v. Delia

Should private attorney retained by City to

conduct workplace investigation be entitled to

assert qualified immunity?

Filarsky

City retains Filarsky to participate in

administrative investigation

Employee (Delia) ordered to produce materials

that were in his home. He did so, then filed a

Section 1983 suit claiming constitutional

violations

Ninth Circuit concluded that Filarsky was not

entitled to qualified immunity because he was

not a city employee.

Decision

Doesn’t guarantee

immunity, but may

seek to invoke REVERSED

Court holds that

private lawyer is

entitled to seek

qualified

immunity

FMLA – Coleman v. Maryland

Under Hibbs, states are subject

to suit for FMLA violations related to caring for

family members

May states also be sued for FMLA violations

related to self-care?

Coleman

Under Nevada v. Hibbs, states may be sued for

FMLA violations related to caring for family

members

However, may states also be sued for FMLA

violations related to self-care?

The district court concluded “no” and the

Fourth Circuit affirmed

Decision

5-4 split

AFFIRMED

Self-care leave

provision is NOT

enforceable

against the

States

Arizona v. United States

Whether state law criminalizing unauthorized

aliens who work is preempted by federal law

Arizona v. United States

Court holds that part of the law (SB 1070) that

imposes criminal penalties on undocumented

aliens who seek work or work in the state is

preempted by federal law

However, state law enforcement officers may

ask for identification

Other Cases

Hosanna-Tabor Evangelical Lutheran Church

(ministerial exception bars minister’s termination

suit against church)

Christopher v. SmithKline Beecham Corp.

(pharmaceutical sales representatives are

exempt from the FLSA as “outside sales”

employees). New USDOL interpretation not

accorded any deference.

Other cases

Knox v. Service Employees Int’l Union (Hudson

notice must be provided when union imposes a

special assessment or

Elgin v. Department of Treasury (Civil Service

Reform Act case, employee should have

appealed to Merit Systems Protection Board

before filing suit in district court)

Finally . . .

Obamacare (Affordable Care Act upheld)

Cases under review for October 2012 Term

Employment and Labor cases

Vance v. Ball State University

Scope of “supervisor liability” under Title VII

Is power to direct an employee’s daily activities

enough to be classified as a “supervisor”? Or is

something more required?

Significance: employer may be liable for

severe or pervasive workplace harassment

committed by a supervisor. If the other person

is merely a co-employee, however, employer is

not liable unless it was negligent

Vance v. Ball State University

Second, Fourth, and Ninth Circuits: a

“supervisor” is one whom has ability to direct

and oversee daily activities

First, Seventh, and Eighth Circuits: a “supervisor”

is limited to employees who have power to

hire,d emote, promote, transfer, or discipline the

employee subjected to unlawful harassment

Genesis HealthCare v. Symczyk

Symczyk filed suit under FLSA as a colelctive

action (class action) for wage and hour

violations

Offer of judgment extended to satisfy all claims

before Symczyk certified class or any other

plaintiffs opted into the suit

Issue: Is the case then moot? District court

concluded “yes,” but the Third Circuit reversed

Kloeckner v. Solis

The Merit Systems Portection Board hears

appeals from federal employees who are

dismissed. If there is a discrimination charge, it is

a “mixed case”

Who has jurisdiction over an appeal—the

district court or the Court of Appeals for the

Federal Circuit?

Ninth Circuit

Recent cases of interest

United States v. Nosal

Reversing a 3 judge panel, 9th Circuit holds en banc

that Computer Fraud and Abuse Act may not be

used to prosecute employees who violate

employer’s policies (employees who had lawful

access and then abused their access rights)

Former employee solicited current employees and

asked them to send him confidential information

Majority notes that criminalizing computer use in this

context could subject employees to wide range of

liability

Samper v. Providence St. Vincent Medical

ADAAA case

Court holds that because regular attendance is

an essential function of the job (neo-natal

nurse), the employer did not need to adopt the

nurse’s proposed accommodation that would

have allowed her an unspecified number of

unplanned absences

Alaska Supreme Court

A few recent cases of interest

Boyko v. Anchorage School District

Employment references and related issues with

departing employees

Boyko v. Anchorage School District

Boyko resigns rather than be terminated for

cause for alcohol abuse

Secretly tapes HR manager who told her that if

she resigned there would be “nothing in the

record” and ‘nothing that we would release to

anyone else”

Boyko resigns and applies to two other schools

ASD refuses comment to the first

To the second, ASD advises that Boyko was not

eligible for rehire and they recommended not

hiring Boyko

Boyko v. ASD

Boyko files suit

Superior court grants ASD summary judgment,

reasoning that even if ASD made a promise not

to disclose Boyko’s job performance, it was

immune from civil liability for good faith job

performance disclosures (statutory grant of

immunity under AS 09.65.160)

Alaska Supreme Court reverses. Genuine issue

of material fact regarding “resignation

agreement” (promises made by HR manager)

Interesting points

Boyko did not suffer any actual damages

The Court affirmed with respect to the non-

reference given to the first employer

There was a negative reference to the second

employer, but that employer hired Boyko

anyway

Risk Management

Watch unchecked “free form” conversations

with departing employees

Keep to the script

Consider options and policies to defend against

secret taping

Grundberg v. ASCHR

ASCHR failed to conduct competent

investigation and failed to credit evidence of

pretext

Grundberg v. ASCHR

Grundberg (58 year old Asian-American) works

for State Department of Transportation and

Public Facilities (DOTPF)

Denied promotion, younger Causasian man

hired

Grundberg filed ASCHR complaint

ASCHR concluded that she failed to provide

substantial evidence of discrimination

Superior Court affirmed

Grundberg v. ASCHR

Grundberg provided response to State’s

position statement with names of potential

witnesses and other relevant facts.

Her submission had gaps in it and was not

comprehensive

ASCHR never investigated further, concluding

instead that Grundberg had failed to provide

sufficient evidence that the State’s decision

was a pretext for unlawful discrimination

Grundberg v. ASCHR

Alaska Supreme Court reverses

At the investigation stage, ASCHR should not

focus on whether employer’s nondiscriminatory

reasons are legitimate. Instead, ASCHR should

ask if there is a reasonable possibility that

discriminatory reasons motivated the

employer’s decision

There was at least some evidence here that

may have supported Grundberg, and ASCHR

never competently investigated that evidence

Toliver v. ASCHR

Statutory duty to impartially investigate requires

ASCHR to interview witnesses identified by

complainant

Toliver v. ASCHR

Toliver (African-American and in his 60s) files

public accommodation discrimination claim,

alleging that liquor store has a “whites only”

policy

Store says it barred Toliver because he verbally

abused and physically threatened a store

manager

Oliver identified witnesses who he said

supported his claim, but these were never

contacted or interviewed

Toliver v. ASCHR

Toliver’s “witnesses” had signed a petition

complaining of racism at the store

ASCHR concludes no evidence of

discrimination

Superior Court affirms and notes that there was

no evidence that the witnesses in question

actually saw anything relevant

Alaska Supreme Court reverses –once witnesses

were identified ASCHR should at least have

contacted and interviewed some of them

Risk Management—Grundberg and Toliver

Be sure and address all direct or implied

arguments in a position statement

Don’t rely on ASCHR to chop your wood

Don’t file position statements without review by

counsel—better yet, have counsel draft and

filed position statements for you

Be sure and conduct your own investigation,

and preserve all evidence

Anticipate and be prepared to rebut any

arguments that may be raised

Peterson v. State of Alaska

Privilege exists between union representative

and employee with respect to union grievance

file

Peterson v. State

Peterson fired, grieves discharge through union,

and loses

Files wrongful discharge suit

State serves subpoena seeking union

representaive to testify at a deposition with the

union’s grievance file

Peterson sought protective order, Suoeruor

Court denied relief

Alaska Supreme Court grants petition for review

Peterson v. State

Court notes it may recognize a new privilege

CBA provided that only a union representative

could represent an employee in grievance

proceedings

Other jurisdictions have held that compelled

disclosure interferes with an employee’s right to

union representation

Privilege covers confidential communications in

ongoing disciplinary or grievance proceedings

with union representatives acting in official

capacity

Lentine v. State

Implied covenant case

Lentine v. State

Lentine fired for submitting a falsified time sheet

She argues that dismissal violated implied

covenant because (1) a biased supervisor was

involved in the decision to terminate her, (2) the

investigation was unfair, and (3) she was

treated differently from other similarly situated

employees

Superior Court grants State summary judgment

Alaska Supreme Court affirms

Lentine v. State

Subject bad faith requires evidence that the

decision was actually made in bad faith

Alleged bias by supervisor not really an issue

where supervisor played little role in discipline

Alleged defects in underlying investugation not

imporant where basic facts established

Disparate treatment not establushed because

no proof that another employee committed

same infraction and was disciplined differently S

Other Courts

Trends or decisions

First Amendment, Free Speech

Is a “Like” on Facebook expressive activity that

is protected by the First Amendment?

Currently, there are a handful of cases

addressing this question in the context of

discipline imposed on public employees

Agency Odds and Ends

Immigration—New H2B Visa Rules

Seasonal workers—common industries affected

include fisheries, hotel & entertainment, natural

resources, tourism, and others

IRS, USDOL, Others—Worker Classification

NLRB – Section 7 Rights

NLRB—Arbitration

DR Horton: Board holds that employees cannot

be compelled to execute employment

agreements that preclude class actions

whether in arbitration or in court

NLRB—Posting Requirement

Is now on hold and may never be implemented

NLRB—Handbook Policies

The Roomstores of Phoenix—the following

policies violate Section 7

Trespassing on company premises when off

duty

Collusion with another employee to violate

company policy

No personal use of company information

No outside activity that has adverse effect on

the company

Broad restrictions on use of confidential

information [and other policies]

NLRB—New Election Rules

Now suspended—court issued opinion on

May 14, 2012, striking down the rule because

Board lacked a quorum when the rule was

adopted

NLRB—Can’t Prohibit Discussing Wages

Board views policies that prohibit employees

from discussing wages and other terms and

conditions of employment as violating Section 7

and Section 8 rights

NLRB—secret taping

Stephens Media: Board holds that employer

committed ULP by discharging employee who

secretly taped a meeting with management

Employer had no policy prohibiting taping and

applicable state law (Hawaii) was silent

EEOC – Adverse Credit Reports

EEOC – Disability Claims Up 17%

EEOC—Criminal Conviction/Arrest Records

New guidance issued April 25, 2012

EEOC—Transgender Workers

EEOC issued a new ruling on April 24, 2012,

holding that discrimination against a

transgender individual is discrimination

“because of sex” and therefore prohibited by

Title VII

EEOC – Alaska Statistics

FY 2009, FY 2010, FY 2011

The total number of employment discrimination

charges filed with the EEOC in Alaska has

varied over the past three years—85 filed in FY

2009, 120 filed in FY2010, and 79 filed in FY2011

Highest number of claims seen in retaliation,

disability, and age discrimination

Seattle – New City Ordinance

Employers must provide paid sick leave

Advice for “The Broken Age”

Sam says, “Stick with your pack and stay alert”

Conclusion

Questions?

Gregory Fisher, Davis Wright Tremaine LLP, 701

W. 8th Avenue, Ste. 800, Anchorage, Alaska

99501 (907) 257-5335 (direct)

gregoryfisher@dwt.com