Hawaii Employment Law Cases September 10, 2017 to September 16, 2017 – Jeffrey S. Harris

U.S. Ninth Circuit Court of Appeals

Substantial evidence supported finding employer violated 29 U.S.C. § 158(a)(1) and (3) by firing an employee for his union activity.  Deviations from internal practice, disparate treatment and after the fact justification showed its reasons were pretextual.  Employer could not retroactively strip employee of NLRA protection by making him a supervisor and then firing him for past protected activity.  Employer violated § 158(a)(1) by serving subpoenas seeking information about confidential union activity protected by 29 U.S.C. § 157, including communications between employees and union, union authorization and membership cards and documents relating to distribution and solicitation of authorization and membership cards.  Noerr-Pennington doctrine did not immunize employer from liability for issuing subpoenas.  United Nurses Assn’s. of Cal./Union of Health Care Prof’ls. v. NLRB, 2017 U.S. App. LEXIS 17491 (9th Cir. Sept. 11, 2017).

Agreement to arbitrate did not cover former employee’s qui tam FCA suit alleging former employer presented fraudulent Medicaid claims.  Agreement covered only disputes that arose from, related to or connected with the employee’s employment.  U.S. ex. rel. Welch v. My Left Foot Children’s Therapy, LLC, 2017 U.S. App. LEXIS 17492 (Sept. 11, 2017).

District Court properly entered judgment against claim based on the termination of a claimant's LTD benefits under the plan's mental health limitation.  District Court did not treat objective medical evidence as additional eligibility requirement.  Even if the district court erred by failing to consider a Social Security Administration ruling, it would not have affected the outcome due to the court’s independent and thorough review of the medical evidence and that the SSA never addressed whether the claimant's disability had a physical component.  District Court properly rejected the plan administrator's counterclaim to recover the value of benefits paid to the claimant because the claimant withheld no information, the administrator reviewed the medical records and found the claimant disabled, and the administrator neither alleged nor showed the claimant was not disabled or misrepresented she was disabled.  Bilyeu v. Morgan Stanley Long Term Disability Plan, 2017 U.S. App. LEXIS 17510 (9th Cir. Sept. 11, 2017).

U.S. District Court for District of Hawaii

District Court granted summary judgment against former employee’s disability retaliation and whistleblower act claims.  Employee testing positive for marijuana usage was legitimate reason for his discharge.  Employer honestly believed panic attack justified taking employee to hospital by ambulance, resulting in drug test.  Employer had no duty to accommodate medical marijuana use.  Lambdin v. Marriott Resorts Hospitality Corp., 2017 U.S. Dist. LEXIS 149570 (D. Haw. Sept. 14, 2017).

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