American Meat Packing Corp., 362F.3d 418 (7TH

American Meat Packing Corp., 362F.3d 418 (7th Cir. 2004).

On November 15, 2001, 350 workers at the American Meat Packing Corporation (AMPC) showed up for work and were told they had been terminated. Because they were not notified 60 days prior to termination, the Worker Adjustment and Retraining Notification Act, U.S.C. § 2101-2109, the WARN Act, did not apply. The purpose of the 1989 WARN Act was to create a buffer for workers who anticipate mass layoffs or plant closings that have been unanticipated. Under the WARN Act, the 60 day notice of plant closings or any mass layoffs may be waived or reduced if a business closure is "caused by some sudden, dramatic, and unexpected action or condition outside the employer's control." 20 C.F.R. § 639.9(b)(1).

The fundamental issue of this case is that of foreseeability. Business situations that are likely to cripple or close a firm may be considered foreseeable if the "probability of occurrence" is such that it makes the circumstance "reasonably foreseeable" rather than a "mere possibility." Watson 311 F.3d at 765 (quoting Halkias v. Gen. Dynamics Corp., 137 F3d 333, 356 (5th Cir. 1998). The plant's closure was reasonably foreseeable because of 39 Non-compliance Records (NR) were issued in 2001 to AMPC, and the company was operating at a loss due to chronic efforts to improve the plant and the loss of enormous quantities of meat that the USDA required to be destroyed. The test is whether another business person would, under similar circumstances, Hotel Employees and Rest. Employees Int'l Union Local 54 v. Elsinore Shore Assocs., 173 F.3d 175, 180 (3d Cir.1999); 54 Fed.Reg. 16,062, 16,062-63 (April 20, 1989) and 20 C.F.R. § 639.9(b)(2) (2004) determine that the corrective actions over the course of a year were insufficient to meet compliance with USDA regulations, and that the number of citations were inordinately high for a business in which public safety is a primary concern. The plant manager could reasonably be expected to anticipate the plant closure in the very near future.

2. Meridian Rail Company, 479 F.3d 527 (7th Cir. 2007).

Workers were not immediately hired by Nortrak, the company that purchased the assets of the Meridian Rail Company, and this delay brought the suit under the Worker Adjustment and Retraining Notification Act of 1988, 29 U.S.C. § 2101-09. The reach of the WARN Act applied to Meridian as it had 100 or more workers at one location and it did cause loss of employment to 50 or more workers. The plaintiffs argue that the issue is the number of people who lost jobs on December 31, 2003, not the difference between the terminated and rehired workers. Putting the other provisions aside, 29 U.S.C. § 2101(b)(1), states that, "Notwithstanding any other provision of this Act, any person who is an employee of the seller & #8230;as of the effective date of the sale shall be considered an employee of the purchaser immediately after the effective date of the sale." This clause is key to Meridian's position since fewer than 50 applicants were not hired by Nortrak, no "employment loss" occurred. The mode the transaction (sale of assets, merger, or sale of securities) is not important. Smullin v. Mity Enterprises, Inc., 420 F.3d 836 (8th Cir.2005), holds that the form of the transaction does not matter when a plant is sold as a going concern. Cf. Oil, Chemical & Atomic Workers v. Uno-Ven Co., 170 F.3d 779, 783-84 (7th Cir.1999). Regardless, the plaintiffs argue that the actual sale of the plant did not occur until January 8, 2004, well after the "employment termination" within the meaning of § 2101(a)(6)(A) which occurred on December 31, 2003, and that the statutory "plant closing" left 50 people without jobs. At the Chicago Heights plant on January 8, 2004, the number of workers employed by Meridian was zero. Under The WARN Act, employee entitlements are determined on actual events, rather than assumed ones, and bright lines are drawn. With the delayed closing, Meridian found itself on the wrong side of a bright line.

3. Blair v. Henry Filters, 505 F.3d 517 (6th Cir. 2007).

To establish a discrimination claim under Michigan's ELCRA, the defendant must show (1) membership in a protected age group (i.e., that he is at least forty years old); (2) that he was subjected to unwelcome communication or conduct on the basis of his age; (3) that this conduct or communication was intended to, or in fact did, interfere substantially with his job, (or that it created an offensive or hostile work environment); and (4) respondeat superior. Downey v. Charlevoix County Bd. Of County Rd. Comm'rs, 227 Mich. App. 621, 576 N.W.2d 712, 716 (Mich. Ct. App. 1998). Under the fourth prong of the prima facie case, the defendant provided sufficient circumstantial evidence for a genuine issue of material fact that Henry Filter singled out Blair for discharge on the basis of his age. Filter's lack of a RIF plan indicated that an alleged RIF is pretextual Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 374 (6th Cir. 1999) (citing Hillebrand v. M-Tron Indus. Inc., 827 F.2d 363, 367-68 (8th Cir. 1987)). Employees were terminated at the company in a chaotic fashion, and the lack of an objective plan, in concert with Blair's circumstantial evidence of age discrimination and Filter's proffered reason for terminating Blair, indicate that the non-discriminatory reason was a pretext for discrimination. Sufficient material fact was provided of an age discrimination claim under ADEA and ELCRA.

4. Aquilino v. Solid Waste Services 2008 U.S. District LEXUS 47168 (E.D. Pa.)

Mascaro exhibited casual indifference and general disregard for their administrative responsibilities of health plans, notably with regard to failure to provide Keystone health plan benefit information to Aquilino as requested and in violation of ERISA, and failure to provide notice to Aquilino following a qualifying event. No reasonable explanations were by the human resources manager offered for the four-week delay and the lack of effort to carry out responsibilities related to the administration of plan benefits. The company, Mascaro, was fined and must pay for medical expenses incurred during the lapse of coverage by the defendant, Aquilino.

5. Griggs v. DuPont, 237 R.3d 371 (4th Cir. 2011)

ERISA § 409(a) imposes liability on a breaching fiduciary to a) make restitution to the plan of losses resulting from the breach, b) disgorge profits obtained by the fiduciary through breach of duty, and c) be subject to other equitable or remedial relief deemed appropriate by the court, including removal of the fiduciary. Section 409(a) makes a fiduciary responsible only for losses resulting from a breach of duty. If no loss results from a breach, then no monetary liability exists. The courts have struggled with this issue and several Supreme Court decisions, Mertens, Great-West, and Sereboff, have caused the opportunity for monetary relief to narrow in an extreme way, except where, in some cases, the courts have allowed equitable relief to take the form of reinstatement to a plan. In Griggs v. E.I. DuPont De Nemours, 237 F.3d 371, 385 (4th Cir. 2001) the court stated that "reinstatement, as a general equitable concept, is within the range of redress permitted by the phrase 'other appropriate equitable relief" under § 502(a)(3)).

6. Leszczk v. Lucent Technologies, 2005 U.S. Dist. LEXUS 11552

[I could not find anything related to this case.]

7. Kentucky Retirement System v. EEOC 128 S. Ct. 2361 (2008)

Charles Lickteig worked after the retirement age of 55, and became disabled at 61. He filed an age discrimination complaint with the EEOC when the Kentucky Retirement Plan did not add any addition years when calculating his pension, but based it solely on years worked. The Plan figures disability benefits by adding to the actual years of service that were missed by the occurrence of the disability and otherwise prevent the employee from being vested. The EEOC maintained that the plan did not add the years to Lickteig's calculation only because of his age upon becoming disabled. Congress amended the ADEA to make clear that it covered age-based discrimination in respect to all employee benefits. See Older Workers Benefit Protection Act, §102, 104 Stat. 978, 29 U.S.C. §630(l) (2000 ed.). Congress replaced the "not a subterfuge" exception with a provision stating that age-based disparities in the provision of benefits are lawful only when they are justified in respect to cost savings. Id.,at 978 -- 979; 29 U.S.C. §623(f)(2)(B)(i). Pp. 4 -- 14.(a) The ADEA forbids an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. 2 KENTUCKY RETIREMENT SYSTEMS v. EEOC. The court applied Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (emphasis added). In Hazen Paper, the Court found that, without evidence of intent, a dismissal based on pension status was not a dismissal "because . . . Of age," id., at 611 -- 612, noting that, though pension status depended upon years of service, and years of service typically go hand in hand with age, the two concepts are "analytically distinct," id., at 611.

8.

9. FLSA with regard to documenting compensable time

Problems arise when employers determine not to count, or fail to recognize and count, certain hours worked as compensable hours. The workplace is replete with work situations that are not tidy with regard to actual time working or time at a desk or workstation. Employers and employees are frequently at odds over these times with mixed motivation. It is relatively common for employees to file a class action suit when employer practices seem designed to take advantage of employees' vulnerabilities in order to save money or restrict provision of benefits. It is important for employee manuals and policies to clearly describe required documentation regarding these gray areas of employment. While employers may regard ambiguity as the better recourse, the courts are not finding this to be true.

10. Degruise v. Sprint Corp., 279 F.3rd 333 (5th Cir. 2002)

Degruise did not receive his notification of COBRA coverage that required a response from him in order to be activated. Sprint made a "good faith" attempt to deliver the COBRA letter of notice to its former employee, and under the law, is not required to follow-up on undeliverable letters of COBRA notice. The fact that the letter was sent by certified mail and a signature could not be obtained does not alter the COBRA notice obligations of Sprint. See Lawrence v. Jackson Mack Sales, Inc., 837 F.Supp. 771, 782 (S.D.Miss.1992), ("Methods of notification which are reasonably calculated to reach the employee or beneficiary are considered to conform to the standard of good faith compliance with the statute."), aff'd 42 F.3d 642 (5th Cir.1994); Myers v. King's Daughters Clinic, 912 F.Supp. 233, 236 (W.D.Tex.1996) (same), aff'd 96 F.3d 1445 (5th Cir.1996); see also Bryant v. Food Lion, Inc., 100 F.Supp.2d 346, 367 (D.S.C. 2000) (same), aff'd 2001 WL 434566 (4th Cir. Apr. 30, 2001); Keegan v. Bloomingdale's, Inc., 992 F.Supp. 974, 977 (N.D.Ill.1998) ("[T]he issue is not whether the former employee actually received notice; the issue is whether the plan administrator 'caused the notice to be sent in a good faith manner reasonably calculated' to reach the former employee." (quoting Jachim v. KUTV, Inc., 783 F.Supp. 1328, 1333-34 (D.Utah 1992))); Marsaglia v. L. Beinhauer & Son, Co., 987 F.Supp. 425, 432 (W.D.Pa.1997). Sprint did lawfully fulfill its obligations to provide COBRA notice, and the use of certified mail is not

11. Gambini v. Total Renal Care, 486 F.3d 1087 (9th Cir. 2007) (as amended)

Employees are not granted absolute protection under ADA from adverse employment actions that are based on disability-related conduct. Under the ADA, an employee with disabilities must be able to "perform the essential functions of the employment position that such individual holds or desires" (42 U.S.C. § 12111(8)). Washington Law has a similar provision that discrimination is not said to occur "if the particular disability prevents the proper performance of the particular worker involved" (Wash. Rev.Code § 49.60.180(1)). An employer is able to raise a "business necessity" or "direct threat" defense against the discrimination claim (see 42 U.S.C. § 12113(a)-(b)) if an employee with disabilities is not able to perform the duties and responsibilities of the job because of disability-related conduct. An employer may argue that the proposed reasonable accommodation poses an undue burden (see id. § 12111(10)).

The trial court argued that Gambini was entitled to be reinstated to her position following her FLMA leave, but that the reinstatement did not protect her to from further discipline or termination for conduct that violated DaVita's employee policies. Further, Instruction 27 to the Jury stated that, "An employer cannot fire an employee for poor job performance if the poor job performance was due to a mental disability and reasonable accommodation plausibly would have rectified the performance problem."

12. Introduction of Collective Bargaining

National Labor Relations Board http://www.nlrb.gov

An independent federal agency vested with the power to safeguard employees' rights to organize

Aids employees in to determine whether to have unions as their bargaining representative

Acts to prevent and remedy unfair labor practices committed by private sector employers and unions.

AFL-CIO http://www.aflcio.org

A voluntary federation of 55 national and international labor unions

Created in 1955 by the merger of the AFL and the CIO

Represents 12.2 million members, including 3.2 million members in Working America, its community affiliate

Membership includes teachers and miners, firefighters and farm workers, bakers and engineers, pilots and public employees, doctors and nurses, painters and plumbers -- and more

Legal Information Institute http://www.law.cornell.edu/topics/labor.html

Wex is a free legal dictionary and encyclopedia sponsored and hosted by the Legal Information Institute at the Cornell Law School. Wex entries are collaboratively created and edited by legal experts. More information about Wex can be found in the Wex FAQ

American Rights at Work http://www.americanrightsatwork.org

Since 2003, American Rights at Work has informed the American public about the struggle to win workplace democracy for nurses, cooks, computer programmers, retail cashiers, and a variety of workers who we all depend on every day. Our vision is a nation where the freedom of workers to organize unions and bargain collectively with employers is guaranteed and promoted.

Through coalition-building, research, public relations, policy analysis, and advocacy, we:

Investigate and expose workers' rights abuses and the inadequacy of U.S. labor law.

Stimulate debate about the state of workers' rights among journalists, policymakers, advocacy groups, and the public.

Promote public policy that protects workers from hostile employers and weak laws that impede their rights to form unions and collectively bargain.

Publicize success stories of profitable companies and public agencies that respect workers' rights and build innovative partnerships with unions.

13. Legal issues with global performance ratings.

Global performance management practices explicitly cover several main areas of performance, including: performance criteria, timing of assessments, the credentials of assessors, the nature and form of feedback, and the provisions for appeal or reconsiderations of evaluations and decisions. There can be substantive gaps between the standardized assessments which have a global orientation and the localized practices of the firm. Metrics are integrally related to most control processes, systems, strategic plans, corporate values and assumptions. It is impossible to address all of this complexity in the general case and then sufficiently reference it to the specific case. Employers who rely on global performance assessments leave themselves open to litigation related to disparate treatment, discrimination, and to otherwise establishing a work environment that generates low employee morale.

14. Greenawalt v. Indiana Department of Corrections 397 F.3d 587 [7th Cir. 2005]

There does not seem to be any reasonable relationship between the research assistant's job and the administration of a psychological examination. The practice seems intrusive in the least, and a violation of privacy rights. The Supreme Court has previously suggested that if the goal is "obtain testimonial rather than physical evidence, the relevant constitutional amendment is not the Fourth but the Fifth." In Schmerber, the Court argued that lie detector tests are difficult to categorize as testimonial evidence or real evidence. Compelling a person to submit to this testing evokes "the spirit and history of the Fifth Amendment." The plaintiff can take her suit to the state courts, wherein privacy can be protected beyond the Fourth Amendment statutes. Indiana has not recognized this particular type of tort law of privacy however, Felsher v. University of Evansville, 755 N.E.2d 589, 593 (Ind.2001). "But the Fourth Amendment does not expand accordion-like to fill what may be a gap in the privacy law of a particular state." Some state courts have found that requiring a public employee to take a lie-detector test without good cause is an invasion of privacy. Texas State Employees Union v. Texas Dept. Of Mental Health & Mental Retardation, 746 S.W.2d 203, 206 (Tex.1987); Long Beach City Employees Ass'n v. City of Long Beach, 41 Cal.3d 937, 227 Cal.Rptr. 90, 719 P.2d 660, 666 (Cal.1986)."