Employment Law News - U.S. First Circuit
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Thomas Locke was in quite a catch-22. Locke, an employee at Logan International Airport in Boston, was given one more chance to be good after he was found stealing soda, beer, sandwiches, soap, and toilet paper from airplanes. He couldn't, however, because his employer, US Airways, refused to issue him a new badge, his old badge having been lost during the investigation.

Locke sued, alleging that the airline acted in bad faith by preventing him from returning to work, as he couldn't even go to his job without a security badge. The district court granted summary judgment to U.S. Airways and the First Circuit affirmed.

What counts as a "success on the merits" for purposes of attorney fee-shifting in an ERISA claim? Diahann Gross' employer, Sun Life Insurance, denied her disability leave claim for numbness and fibromyalgia. In an earlier appeal, the First Circuit said that Sun Life's insurance plan contained an incorrect standard for evaluating disability claims. The court remanded to the insurance plan's administrator for further review.

In this appeal, Gross is asking for attorneys fees. Sun Life says she's not entitled to them -- at least at this point -- because she hasn't succeeded at anything yet. The First Circuit agreed with Gross, 2-1.

Fidelity Faces 401(k) Float Income Class Action in Mass.

Fidelity Investments, the largest U.S. provider of workplace retirement plans, is facing a putative class action in Massachusetts alleging that Fidelity improperly uses customer money earned in overnight accounts to pay its own operating expenses, Reuters reports.

Earlier this month, three Massachusetts residents filed suit against Boston-based Fidelity, accusing the company of using "float income" -- income generated from retirement fund assets -- by temporarily investing it for its own benefit, in violation of ERISA.

A recent ruling by the Eighth Circuit sheds some light on how the court might rule.

Lawson v. FMR LLC is a case originating in the First Circuit, that dealt with whether the Sarbanes-Oxley Act whistleblower protections extend to employees of a private company that are contractors for public companies. Last week, the Supreme Court issued its opinion clarifying the reach of the Act.

Lawson v. FMR LLC -- The Lower Courts

In Lawson, two contractors who worked for mutual funds (who in practice don't have employees of their own) were essentially fired after they brought up concerns regarding the funds' management. After they sued under 18 U.S.C. 1514A, the district court denied the mutual funds' motions to dismiss, and the First Circuit reversed. The question before the Supreme Court was whether 1514A applied to employees of private contractors that did work for public companies.

Creepy Shoulder Touching By Boss Not Sexual Harassment: 1st Cir.

A female former sales manager claimed that her male supervisor twice reached around and placed a hand on her shoulder while driving her to a hotel after work. He allegedly told her "she owed him" for hiring her. The First Circuit conceded such actions "would feel very uncomfortable" but that they didn't rise to the level of actionable sexual harassment.

The case centered on what constitutes severe and pervasive conduct and the "but-for" causation in unlawful terminations.

Did you know that you don't have to tip skycap employees? Tips are appreciated, but not required -- though to make sure our bags are in the same place as we are, and at the same time, we always tip.

What does this have to do with the First Circuit? It may be a factor in a retaliation suit.

Factual Background

One skycap, Joseph Travers, sued Flight Services under the Fair Labor Standards Act ("FLSA") for failing to pay a minimum wage. He led the charge, and persuaded other skycaps to sue as well, creating a putative class.

Judge Halts Sale of Boston Globe to Red Sox Owner

A Massachusetts judge has temporarily blocked the sale of The Boston Globe and The Worcester Telegram & Gazette to Boston Red Sox owner John W. Henry.

Henry inked a deal for the papers with The New York Times Company for an estimated $70 million but Judge Shannon Frison of Superior Court in Worcester halted the sale, citing a potential complication with a pending class action lawsuit involving the Worcester newspaper and its delivery workers.

Newspaper legal drama reported by the newspaper parties -- trs meta!

Political patronage is a dirty word to many. It is one of the principles of the American Idea that in this land of opportunity, we'll choose the best person for the job, no matter their political affiliation. For about a century after our modern Constitutional government was formed, patronage was the name of the game and each change in administration meant a massive civil service turnover, and of course, corrupt bargains and payoffs for positions.

The Feds fixed the issue in 1883 with the Pendleton Civil Service Reform Act. Puerto Rico had its own remedy, the Public Service Human Resources Administration Act of Puerto Pico, which espoused "merit principles" over patronage.

Bickering Means Billables in Sexual Harassment Indemnity Dispute

Don't you just hate it when the boss-man at a company has been sexually harassing employees for so long that no one can pinpoint when the harassment started, and everyone starts bickering about whether or not the company's wrongful employment practices policy covers his saucy antics?

It's the worst.

But if you're a lawyer for either the boss-man's company or the insurance company, that bickering means billables because the case is unlikely to be resolved in summary judgment.

Starbucks Tip-Pooling is Illegal in Massachusetts

Reading this case, we get the idea that the Boston-based First Circuit Court of Appeals is not a big fan of Starbucks. That's not particularly surprising, given that Beantown is better known for Dunkin' Donuts.

Starbucks employees — or "partners" in the company lingo — are divided into four subcategories: store managers, assistant managers, shift supervisors, and baristas. Both shift supervisors and baristas are hourly wage employees, often working part-time. Baristas are frontline employees who serve food and beverages to customers; shift supervisors perform those functions and other functions as well. Shift supervisors are usually promoted from the ranks of baristas.