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McKenna Employment Bulletin – December 2014

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  • JOINT EMPLOYER WHO MADE NO DECISIONS IS NOT LIABLE UNDER THE ADA
  • FAILURE TO REFER DRIVING JOBS SUPPORTED A CLAIM FOR GENDER DISCRIMINATION
  • UNSPECIFIC TESTIMONY ABOUT HOURS WORKED DOES NOT SUPPORT A CLAIM FOR UNPAID OVERTIME
  • POOR JOB PERFORMANCE BEFORE TERMINATION STOPS AN AGE CLAIM
  • AN OWNER CAN BE PERSONALLY LIABLE FOR FLSA VIOLATIONS
  • APPLICANTS HAVE NO STANDING TO SUE UNDER TWO FEDERAL WHISTLEBLOWING ACTS

 

JOINT EMPLOYER WHO MADE NO DECISIONS IS NOT LIABLE UNDER THE ADA

In Whitacker v. Milwaukee County, Wisc., No. 13-3735, November 25, 2014, 7th Circuit, the plaintiff alleged in an ADA action that the defendant, as her “joint employer,” discriminated against her on the basis of her disability. She alleged that her employer refused to extend her period of medical leave, failed to transfer her to a different position and subsequently terminated her. But, while the defendant was the plaintiff’s employer, the record showed that the relevant decision-maker for the plaintiff was employed by a different entity, the other joint employer. Therefore, the plaintiff did not have an ADA claim against the defendant because the defendant played no role in the adverse acts against the plaintiff. Thus, judgment was entered for the defendant joint employer.
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FAILURE TO REFER DRIVING JOBS SUPPORTED A CLAIM FOR GENDER DISCRIMINATION

In Stuart v. Local 727, International Brotherhood of Teamsters, No. 14-1710, November 14, 2014, 7th Circuit, the plaintiff’s Title VII action alleged that the defendant union failed to refer plaintiff to certain driving jobs on account of her gender. The record showed that the plaintiff never received any referrals for 4.5 years, even though there had been no shortage of driving jobs in that time period. The defendant raised as a defense the statute of limitations. But, the record contained facts that referrals to others occurred within the applicable 300-day limitation period. The court held that that the plaintiff’s “failure to refer” claim was actionable as a gender discrimination claim under Title VII.
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UNSPECIFIC TESTIMONY ABOUT HOURS WORKED DOES NOT SUPPORT A CLAIM FOR UNPAID OVERTIME

In Holaway v. Stratasys, Inc., 23 WH Cases2d Cir. 1165 (8th Circuit 2014), the plaintiff testified in an FLSA overtime case to his hours worked based on “mainly just recollections of [his] daily activities.” The court held that on this testimony the plaintiff failed to put forth evidence sufficient to demonstrate he ever worked for more than forty hours per week.

The court stated that an employee who sues for unpaid overtime has the burden of proving that he performed work for which he was not properly compensated. Employers are required to keep records of wages and hours. If an employer has failed to keep records, employees are not denied recovery under the FLSA and employees are to be awarded compensation based on the most accurate basis possible, a relaxed standard of proof. The court held, however, that the plaintiff failed to put forward any evidence of the amount and extent of his work in excess of forty hours a week. The plaintiff put forth contradictory and bare assertions of his overtime hours worked. Thus, the plaintiff failed to provide a meaningful explanation of how he arrived at his final estimate of sixty hours a week. The court ruled that this failure included a failure by the plaintiff to check his hours worked against any business records kept by the employer.

What the plaintiff testified to was that before 8 a.m. on a weekly basis he typically worked two to three hours doing preparation work and he typically spent three to four hours travelling to locations. With regard to work performed after 5 p.m. on a weekly basis, the plaintiff testified he typically spent four to five hours driving to a client’s site or a hotel, three to four hours at the client’s site, three to four hours writing expense reports and one to two hours arranging travel time. The plaintiff also testified he typically worked two to three hours each weekend on administrative work.
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POOR JOB PERFORMANCE BEFORE TERMINATION STOPS AN AGE CLAIM

In Widmar v. Sun Chemical Corp., No. 13-2313, November 19, 2014, 7th Circuit, the plaintiff alleged that the defendant terminated him on account of his age. The termination occurred after the defendant accused the plaintiff of poor job performance arising out of several problems that occurred in a manufacturing plant that was managed by the plaintiff. The plaintiff presented evidence indicating that others within the plant were responsible for the problems. But, the defendant explained that it expected the plaintiff to be a more proactive manager who solved the problems rather than blaming others. Further, the plaintiff failed to provide evidence that the defendant’s job expectations with respect to the appropriate role of the plant manager was a pretext for age discrimination. Finally, the plaintiff failed to show that the defendant treated younger, similarly-situated managers more leniently.
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AN OWNER CAN BE PERSONALLY LIABLE FOR FLSA VIOLATIONS

In Reynoso v. Motel LLC, No. 2014 WL 5392034 (N.D.Ill. 2014), three kitchen workers brought suit alleging that both the restaurant and bar at which they worked and its owner violated the FLSA by failing to pay them overtime. The owner claimed that the restaurant’s financial manager, and not the owner, was solely responsible for the decisions not to pay workers overtime. The court first clarified that “joint liability,” in which more than one employer is liable for the same underpayment of wages, is contemplated by the FLSA. The court found that the owner had final authority over the terms and conditions of workers’ employment, including the amount and form of their wages; that the owner regularly worked at the restaurant and oversaw all day-to-day operations; and finally that the owner hired and supervised the restaurant’s financial manager, who was in charge of payroll. The court held that these “economic realities,” showed that the owner was in fact an “employer” under the FLSA and, therefore, could be held personally liable to the employees on their wage claims.
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APPLICANTS HAVE NO STANDING TO SUE UNDER TWO FEDERAL WHISTLEBLOWING ACTS

The Sixth Circuit held that an employment applicant had no standing to claim retaliation for whistleblowing under the Energy Reorganization Act, 42 U.S.C.S. § 5851, and the False Claims Act, 31 U.S.C.S. § 3730(h)(1), because those statutes were limited to employees, and he was not a common-law employee. Boegh v. EnergySolutions, Inc., 2014 U.S. App. LEXIS 21810, 31, 2014 FED App. 0283P (6th Cir.), 20 (6th Cir. Ky. 2014). Plaintiff applied for a job with EnergySolutions. He alleged that the prospective employer did not hire him because he engaged in protected whistleblower activity at a prior job. The district court held that Plaintiff lacked statutory standing as an applicant—not employee—and granted summary judgment in favor of EnergySolutions. In a case of first impression, the Sixth Circuit held that a non-employee had no standing to sue under either federal act for retaliation.
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This Employment Bulletin is intended to provide information of general interest and does not constitute legal advice. Readers should consult with their counsel before taking any action based on the information in this publication. All rights reserved. Copyright 2013, McKenna Storer. 

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