Hawaii Employment Law Decisions Feb. 12, 2017 to Feb. 19, 2017 – Jeffrey S. Harris

U.S. Ninth Circuit Court of Appeals

National Labor Relations Board retained authority to order reinstatement of discharged employee, after employee entered settlement accepting payment and waiving reinstatement.  District court did not abuse discretion by granting Board temporary injunction requiring employee's reinstatement.  Because employer's speech was allegedly illegally coercive, ordinary standard for temporary injunction applied.  Regional Director was likely to succeed on merits of unfair labor practice claim.  Irreparable injury was likely without relief given observed drop-off in union authorization card and meeting activity.  Balance of hardships and public interest favored granting injunction preventing employer from undermining organizing by the potentially unlawful tactics.  Overstreet v. Shamrock Foods Co., 2017 U.S. App. 2842 (9th Cir. Feb. 17, 2017).

District court improperly granted summary judgment against claim for severance benefits.  Plan provided employee "whose employment terminates for any reason other than malfeasance, retirement or voluntary resignation shall be entitled to . . . severance pay."  Because provision did not exclude employee forced to leave job by terminal illness, she was entitled to severance.  Hoffman v. Am. Soc'y for Techion - Isr. Int. of Tech., 2017 U.S. EXIS 2837 (9th Cir. Feb. 17, 2017).

District court did not err granting summary judgment against age discrimination and retaliation claims.  Former employee offered no evidence showing employer's legitimate, non-discriminatory reasons for not promoting or transferring were pretext.  Employee's manager did not believe she met detailed requirements for promotion.  Employer offered examples of employee's areas for improvement and subpar interview performance.  Employee's claimed she had more experience and seniority than younger candidates,  That did not show she was as or more qualified than them.  Nothing other than timing could support an inference her complaint caused adverse actions.  Dodson v. Fedex Corp. Servs., 2017 U.S. App. LEXIS 2755 (9th Cir. Feb. 16, 2017).

District Court properly granted summary judgment against claim disability plan and insurer improperly offset permanent partial disability benefits against long term disability benefits, based on the plain language of the plan.  Gallego v. Wells Fargo & Co., Long Term Disability Plan, 2017 U.S. App. LEXIS 2753 (9th Cir. Feb. 16, 2017).

District court properly dismissed Fair Credit Reporting Act claim against automobile associations.  Employer gave tow truck driver required pre-adverse employment action notice before terminating him after a background check he authorized revealed he did not meet associations' requirements.  Prescott v. AAA, 2017 U.S. App. LEXIS 2588 (9th Cir. Feb. 14, 2017).

District court properly granted summary judgment against claim employer failed to accommodate employee's bad back in violation of the Americans with Disability Act.  Employee failed to qualify for maintenance mechanic position by providing no required certificate of completion or equivalent from a certified trade school. Herron v. Peri & Sons Farms, 2017 U.S. App. LEXIS 2508 (9th Cir Feb. 13, 2017).

U.S. District Court for District of Hawaii

District court magistrate judge granted former union recording secretary's motion to limit subpoena for cell phone records to time he was a union officer, and eliminated production of text message content based on Stored Communications Act.  Requestor was neither addressee, intended recipient or agent of addressee or recipient, and originator and addressee or intended recipient did not consent.  Subpoena did not limit request to subscriber information (date, time, originating and receiving telephone number, originating cell site and sector, and duration for all calls.)   Haw. Reg'l Council of Carpenters & United Bhd. v. Yoshimura, 2017 U.S. Dist. LEXIS 22733 (D. Haw. Feb. 17, 2017).

District court granted union partial summary judgment former union recording secretary breached fiduciary duty under Section 501(a) of the Labor Management Reporting and Disclosure Act; by secretly recording union meetings in violation of union policies and resolutions (despite Hawaii law permitting persons to record when they are party to the communication) and retaining union documents.  Haw. Reg'l Council of Carpenters & United Bhd. v. Yoshimura, 2017 U.S. Dist. LEXIS 22081 (D. Haw. Feb. 16, 2017).

District court magistrate judge denied motion to compel Secretary of Labor production of statements by witnesses based on their listing as claimants, but compelled production of statements by witnesses who would testify at trial and production of case narratives and internal analysis with witness names redacted.  Magistrate judge ordered in camera review to determine whether documents reflected only agency deliberative process or also contained factual content and whether documents were covered by joint defense/common interest privileges.  Magistrate judge compelled production of documents relating to claimant's work activities, subject to stipulated protective order protecting their privacy.  Magistrate judge ordered nonparties to comply with subpoenas, limited to require identification of financial institutions and providers and production of social media posts respondents generated or originated and documents relating to activity other than employment between 7:00 a.m. and 6:00 p.m. for three-month period, subject to stipulated protective order.  Sec'y of Labor v. Kazu Constr., 2017 U.S. Dis. LEXIS 21600 (D. Haw. Feb. 15, 2017).

Note: We analyze cases to learn rules the courts will follow or disappoint us if they don't. Rules that the courts follow allow us to behave and provide explanations they accept. But competent advocates may limit the rules to the facts of the case where they are discussed, or expand rules by showing that differences in other cases are irrelevant.