Hawaii Employment Law Cases August 27, 2017 to September 2, 2017 – Jeffrey S. Harris

U.S. Ninth Circuit Court of Appeals

District Court properly certified class of armed guards, and did not abuse discretion by concluding that nearly identical misrepresentations about the anticipated work schedule and common question of contract interpretation whether a 72-hour workweek was customary made common issues predominate.  Risinger v. SOC LLC, 2017 U.S. App. LEXIS 16907 (Sept. 1, 2017).

District Court properly entered judgment, after a jury trial, for a longshore worker who experienced an electrical shock when piece of rebar he was holding contacted a floodlight provided by the vessel owner.  Worker alleged the vessel owner negligently turned over the ship with a faulty floodlight.  The district court properly instructed the jury under the Longshore and Harbor Workers Compensation Act the vessel owner owed a duty to longshore worker to turn over the ship and its equipment in a reasonably safe condition, which necessarily required the vessel owner to take reasonable steps to inspect the ship and equipment before turnover.  The district court did not abuse its discretion in allowing the worker’s key scientific expert to describe his theory of electrical injury because the court adequately assessed the reliability of the theory, fulfilled its gatekeeping function under the Daubert case and did not err in admitting the medical experts' testimony.  Murray v. S. Route Maritime SA, 2017 U.S. App. Lexis 16760 (9th Cir. Aug. 31, 2017).

District Court properly dismissed benefit claim under ERISA, because employee failed to exhaust administrative remedies.  ERISA preempted application of notice prejudice rule to benefit plan.  Dietz-Clark v. HDR, Inc., 2017 U.S. App. 16550 (9th Cir. Aug. 29, 2017).

Parties may delegate adjudication of gateway issues to the arbitrator if they "clearly and unmistakably" agree to do so.  They do so when they incorporate by reference the rules of the American Arbitration Association (“AAA”), which state in relevant part the "arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the . . . validity of the arbitration agreement.”  They do so when they incorporate the rules of the International Chamber of Commerce, because those rules are similar to those of the AAA.  Portland GE v. Liberty Mut. Ins. Co., 2017 U.S. App. LEXIS 16409 (9th Cir. Aug. 28, 2017).

The District Court properly granted summary judgment against a former employee's action alleging the employer terminated him from his job as a locomotive engineer in violation of the California law against disability discrimination.  The former employee failed to establish the employer discriminated against him based on his obstructive sleep apnea (OSA).  The record contained no evidence OSA was a substantial motivating reason for the employer’s decision to terminate him.  He offered no evidence employer’s stated reason for discharge, the employee’s history of attendance violations, was false or pretextual.  The employer did not engage in unlawful discrimination by declining to alter the former employee’s discharge, based on his OSA diagnosis.  The employer was not required to engage in the interactive process after the employee’s attendance violations already occurred, because no reasonable accommodation could have cured his prior absenteeism.  Alamillo v. BNSF Ry., 2017 U.S. App. LEXIS 16267 (9th Cir. Aug. 25, 2016).

U.S. District Court for District of Hawaii

District Court dismissed former employee’s intentional infliction of emotional distress claim, because the Workers’ Compensation statute was exclusive remedy. District Court dismissed race discrimination claim, because former employee did not allege employer treated similarly situated individuals outside his protected class more favorably. District Court dismissed hostile work environment claim, because former employee did not allege sufficient facts showing conduct was sufficiently severe or pervasive.  District Court dismissed retaliation and whistleblower claims, because former employee alleged no causal connection between his suspension and protected activity.  Ross v. Rengo Packaging, Inc., 2017 U.S. Dist. LEXIS 141286 (D. Haw. August 31, 2017).

Hawaii Intermediate Court of Appeals.

Circuit Court properly denied employer’s motion to compel arbitration because employee signed agreement to arbitrate with PEO’s customer before company hired her and agreement did not require PEO or its customer to submit to binding arbitration.  Santander v. CARIS Med Surg, LLC, 2017 Haw. App. LEXIS 364 (Int. Ct. App. August 31, 2017).

Note: We analyze cases to learn rules courts will follow or disappoint us if they do not. Rules courts follow allow us to behave and provide explanations they accept. Competent advocates may limit the rules to the facts of the case that discuss them, or expand the rules by showing differences in other cases are irrelevant.