Corporate, Litigation, and Labor & Employment Lawyers

Honolulu and Hilo, HI

Hawaii Employment Law Decisions March 5 to March 11, 2017 – Jeffrey S. Harris

U.S. Ninth Circuit Court of Appeals

District Court properly denied employee’s motion for judgment as a matter of law and new trial on hostile work environment claim.  Although evidence could have supported employee’s claim, there was also support for the employer.  Several witnesses testified the conduct amounted to no more than jokes and horseplay   Employee’s psychiatrist concluded his difficulties were due to job loss rather than harassment.  Employer presented evidence employee overstated his qualifications on resume and concealed his health condition that could have caused the jury to disbelieve him.  Bolduc v. ICWUSA.COM, Inc., 2017 U.S. App., LEXIS 4296 (9th Cir. March 10, 2017).

Substantial evidence supported NLRB’s decision employer committed an unfair labor practice by failing to produce information relevant and necessary to administration and negotiation of the parties’ collective bargaining agreement, and Board’s determination union’s request did not seek confidential information, did not constitute harassment and was not overly broad, unduly burdensome or sought in bad faith.  Substantial evidence also supported Board’s finding company committed unfair labor practice by delaying three months before informing union certain information did not exist.  The Board did not abuse its discretion by refusing to defer the information request dispute to arbitration.   Endo Painting Serv. v. NLRB, 2017 U.S. App. LEXIS 4202 (9th Cir. March 9, 2017).

District Court improperly concluded Section 301 of LMRA preempted service employees’ claim they were entitled to all gratuities collected from customers, because the claim did not depend on interpretation of the collective bargaining agreement.  Khanal v. S.F. Hilton, Inc., 2017 U.S. App. LEXIS 4203 (9th Cir. March 9, 2017).

District Court improperly dismissed whistleblower claim brought under Dodd-Franks Act’s anti-retaliation provision, because the provision protected employees fired for making internal disclosures of alleged unlawful activity under the Sarbanes-Oxley Act and other laws, rules and regulations, not only external complaints.  Somers v. Digital Realty Trust, Inc., 850 F.3d 1045 (9th Cir. March 8, 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.