Hawaii Employment Law Decisions March 26 to April 1, 2017 – Jeffrey S. Harris

U.S. Ninth Circuit Court of Appeals

District Court properly granted summary judgment against FLSA claim by driver applicants who attended three-day orientation.  The applicants were not employees under FLSA, because they took driving and skill tests, completed tax and administrative paperwork, showed they understood and would comply with safety policies and regulatory standards during the orientation and were not guaranteed employment upon completion of the orientation.  Entry-lever drivers who rode with experienced drivers were not entitled to pay for time they spent in sleeper berth of a moving truck.  Nance v. May Trucking Co., 2017 U.S. App. LEXIS 5463 (9th Cir. March 29, 2017).

District Court properly granted summary judgment against religious discrimination claim.  Department of Veterans Affairs showed legitimate, nondiscriminatory reasons for dismissing minister; she failed to integrate with the other members of the hospice unit's interdisciplinary team, and she did not maintain adequate patient charts.  Former minister could offer no evidence reasons were pretextual or overcome the same actor inference; same chaplain and doctor allegedly fired her for the same reason they hired her, her religion.  Blair v. Shulkin, 2017 U.S. App. LEXIS 5405 (9th Cir. March 28, 2017).

District Court properly granted summary judgment cab drivers were independent contractors under the FLSA, because (1) company had relatively little control over how drivers performed their work, (2) their opportunity for profit or loss depended on their managerial skill, (3) they invested in equipment or materials and employed helpers to perform their work, (4) the service they rendered required no special skill, (5) the parties' working relationship was often lengthy, and (6) the service the drivers rendered was an integral part of the company's business, so, under the totality of circumstances, as a matter of economic reality, the drivers were in business for themselves.  Iontchev v. AAA Cab Serv., 2017 U.S. App. LEXIS 5326 (9th Cir. March 27, 2017).

U.S. District Court, District of Hawaii

Prima facie retaliation case under Title VII required but for causal link between protected activity and adverse action.  Conclusion of internal investigation was not adverse action; having inconclusively interviewed witnesses was legitimate non-discriminatory reason which employee did not show was pretextual.   Although assignment to work holiday could be adverse action, employee being least senior and having worked the least holidays was legitimate non-discriminatory reason employee was assigned.  Although assignment to third shift could be adverse action, protected activity could not have caused reassignment occurring beforehand, addressing lack of teamwork and cohesion was a legitimate business reason and reassignment of similarly situated employees disfavored pretext finding.  Sending employee letter inquiring about his absence and asking for documentation was not adverse action.  Although denial of promotion could be adverse action, no evidence showed review board who denied promotion knew of protected activity.  Desk and computer issues employee encountered upon return were no more than minor annoyances.  No evidence protected activity caused one-day suspension.  Arakaki v. Brennan, 2017 U.S. Dist.; LEXIS 51682 (D. Haw. March 31, 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.