Laid off Pamida worker drops her WARN act suit. Journalstar.com A woman who sued an Omaha-based regional retailer arguing she and others weren't properly notified before being laid off has dropped her legal fight. Cynthia Zych sued Pamida Stores Operating Co. in April. Her lawsuit alleged the company violated a federal law aimed at protecting workers during certain mass layoffs and plant closings. She said she was one of 54 people laid off in January. The law can be triggered in several ways, including when more than 50 employees are cut and they make up at least 33 percent of the employer's active workforce. Zych's attorney, Bob O'Connor Jr., said Friday he asked the court to dismiss the suit earlier this month because Pamida's layoffs didn't meet that requirement and therefore didn't violate the law.

Three Hispanic former employees sue Willsie Cap and Gown Company for discriminatory treatment and retaliation. Omaha.com Willsie Cap & Gown routinely offered better hours, more desirable work, more breaks and even better lighting to non-Hispanic employees.

The lawsuits also say Hispanic employees were prohibited from speaking Spanish in the plant, but non-Hispanic employees were allowed to speak their native languages.

County employee Douglas County fired for dropping ice wins reinstatement. Pierce v. Douglas Cty. Civil Serv. Comm., S-07-252, 275 Neb. 722 Douglas County facilities engineer and International Union of Operating Engineers, Local 571 member Nathan Pierce could not go unescorted near a co-worker at the Douglas County Hospital because he had angry confrontation with her before. Later as he went through her area he dropped a cup of ice near her nurse's station. Douglas County terminated him. Nebraska Supreme Court reverses the termination ruling and orders him reinstated because the District Court had jurisdiction to rule on Pierce's claim that the county board breached the collective bargaining agreement with the union. Also the violation if any was not serious enough to merit termination. "the district court had jurisdiction over Pierce’s claims that the Department breached the collectiver bargaining agreement (CBA) as far as those allegations were relevant to Pierce’s termination. However, we need not reach the merits of Pierce’s claims under the CBA. We conclude that the evidence shows the Department did not consider Pierce’s alleged conduct to be a serious violation of the Commission’s personnel manual, warranting termination. We therefore reverse the district court’s order affirming Pierce’s termination "

Nebraska Supreme Court affirms judgment that non-compete agreement between and insurance agency and one of its brokers was enforceable even after the broker's original employer had merged with another firm. The successor company had valid consideration for a non-compete agreement that barred the defendant from soliciting the company's customers for 2 years after his termination. The Nebraska Supreme Court upheld the trial court's damage calculation by which the Douglas County District Court determined the damages from breaching the non-compete agreement by finding the amount of revenue the defendant generate from the prohibited customers for two years after his termination minus the expenses the plaintiff would have incurred had it retained the business. While the trial court rejected the plaintiff's CPA experts conclusions, it accepted some of his findings as to revenues and expenses. Because the court took the expert's testimony as fact testimony, it did not need to determine if the CPA's testimony passed the Daubert test. Aon Consulting v. Midlands Fin. Benefits, S-06-1256, S-07-034 , 275 Neb. 642

Nebraska Supreme Court resolves tangled fee dispute between Law Offices of Ronald J Palagi and its former associate Steven Howard over a $2 million injury verdict from Phelps County District Court and some other large cases. Nebraska Supreme Court dismisses former associates appeal of the Buffalo County District Court's attorney lien division order {motion to alter or amend judgment to correct clerical errors did not toll 30 day appeal deadline}, affirms division of fees from same large case from Douglas County District Court and award of extra attorney fees for Palagi's untimely payment of a fee bonus to Howard under the Nebraska Wage Payment Collections Act. Nebraska Supreme Court invalidates provisions of the parties employment agreement that purported to require the associate attorney to turn over fees earned from cases the associate takes from the law firm after resigning as violating the Model Rule 5.6 {restrictions on lawyer's right to practice}. The Supreme Court also rules against the law firm's claim that the associate attorney's actions to advise the firms clients that he was leaving the firm violated the associate's fiduciary duty to the law firm because the law firm could not prove that the attorney's actions caused the firm any loss. Law Offices of Ronald J. Palagi v. Howard, S-06-384, S-06-665, S-07-757, 275 Neb. 334

Casey's General Store employees' lawsuit for unpaid overtime goes ahead. Convenience Store News. Casey's General Stores, operator of more than 1,460 convenience stores, faces a new federal lawsuit by its cooks and cashiers who claimed the company did not pay their overtime, The Associated Press reported. The c-store chain was already sued by managers who issued similar claims, the report stated. The lawsuit, filed in U.S. District Court in Des Moines, alleges Casey's wrongfully denied overtime pay and wages to current and former Casey's hourly employees, the AP reported. Approximately 20,000 employees are included in the suit and claims exceed $5 million, according to court documents cited by the AP. "I was expected to and repeatedly did show up early and stay late for Casey's," former Iowa Casey's employee and plaintiff Connie Wineland said in a statement cited by the AP. "I want to be paid for all of the time I worked at Casey's." The employees are represented by the Peters Law Firm of Council Bluffs, Iowa; Washington-based Cuneo Gilbert & LaDuca; Stephan Zouras, of Chicago; and Hudson Mallaney & Shindler, of Des Moines. "These are hardworking employees who deserve to be paid for every minute of time they work," attorney Scott Peters told the AP. "Employees should not be expected to 'donate' their time to Casey's." A telephone message by the AP left for a Casey's spokesman was not immediately returned. The company's attorney, Eli Wirtz, declined comment to the AP. In early June 2007, CSNews Online reported two former assistant managers for the Casey's convenience chain sued the company for failure to pay them overtime wages. At that time, the company issued a statement obtained by CSNews Online. It stated: "We understand a lawsuit was filed in Federal Court yesterday by two former employees in which the claim is made that Casey's failed to properly pay overtime compensation to two or more of its assistant managers. Casey's denies this claim and intends to vigorously defend itself with respect to this lawsuit. It is Casey's policy to pay all employees for any and all time worked in accordance with federal, state and local law."

Nebraska Department of Health and Human Services' appeal of State Personnel Board decision to demote its adult protection worker instead of firing her is dismissed because it was not filed in the correct county. Nebraska Dept. of Health & Human Servs. v. Weekley, S-06-292, 274 Neb. 516Plaintiff and adult protection worker for the Department of health and Human Services faced termination because she did not timely investigate a report that a vulnerable adult was in danger. The vulnerable adult died later in a fire. the Department and the employee first attended a mini-hearing session at DHHS headquarters in Lincoln but the hearing officer recommended termination. The State Personnel Board of the DAS (Department of Administrative Services) recommended discipline short of termination. DHHS appealed the Personnel Board's decision in the Dodge County Court, where the State won reinstatement of its termination decision. Supreme Court vacates, holding that according to 84-917(2)(a), the Department should have filed its district court appeal in Lancaster County where the Department and its employee first attended the informal "mini-hearing" regarding the disciplinary action the Department sought to take against the adult protection worker, even though the formal DAS termination hearing took place in Dodge County. Notwithstanding the procedural limitations and the informal nature of the “mini hearing,” ,,we conclude that the “mini hearing” in Lancaster County was the first adjudicated hearing.DHHS filed its petition for further review in Dodge County, rather than Lancaster County, and the Dodge County District Court did not have jurisdiction."

Nebraska Supreme Court affirms dismissal of Douglas County security employee who while on sick leave worked a second job, even though the disciplinary citation and a supervisor referenced a mistaken allegation that his off-duty injury that lead to the employee's taking sick leave was during outside employment. Hickey v. Civil Serv. Comm. of Douglas Cty., S-06-802, 274 Neb. 554. Plaintiff injured his had during off-duty time and he received sick leave from his employer Douglas county Nebraska. Later the county discovered he was working at a second job while drawing sick leave pay. The county moved to dismiss plaintiff and plaintiff appealed. One of the plaintiff's supervisors testified mistakenly that the county dismissed plaintiff because he was injured while working a second job and sought sick leave pay for the injury. But the disciplinary notice and other employees testified that the county dismissed plaintiff for working at outside employment while drawing sick leave. Supreme Court affirms. "the record clearly establishes, despite supervisor’s confusion, that Hickey’s employment was terminated for violating section 2(a) (against outside employment on sick leave) and that he had notice of and the opportunity to defend himself against that charge. We find no due process violation."

Grand Island Lawn Company Owner Pleads Guilty to Harboring Illegal Immigrants. Yahoo business. David Wortman turned himself in for arrest last month, one day after U.S. Immigration and Customs enforcement raided Cloudburst Lawn and Sprinkler and arrested 19 suspected illegal immigrants. Agents believed 11 of those arrested were from Mexico, six were from El Salvador and two were from Guatemala.Wortman was under investigation by ICE, the IRS and the U.S. Department of Labor, U.S. Attorney Joe Stecher said in a news release. Wortman was scheduled to be sentenced Jan. 22. In a plea deal, he agreed to be sentenced to 30 months in prison and to file new tax returns for 2005 and 2006. According to the criminal complaint, Wortman told federal officials that the company's gross sales in 2005 were more than $1.5 million. Stecher said Wortman cashed several checks from customers that were for less than $10,000 each but represented larger business dealings that should have been federally reported. Stecher said the 45 transactions totaled about $440,000 and were paid in groups of 22 to 108 checks. Under his plea agreement, Wortman agreed to forfeit the $440,000, not only for the unreported transactions, but also to pay $200,000 to the Labor Department to settle claims of unpaid overtime.

Bankrupt used car dealer owed a $150000 federal court judgment to a former female employee due to his partner's flagrant sexual harassment of her. Eighth Circuit Court of Appeals finds the federal court employment discrimination verdict under 42 U.S.C. § 2000e-3(a) was not dischargeable as a willful and malicious injury according to 11 USC 523(a)(6). Holly Sells v. Michael Porter 09/21/2007 U.S. Court of Appeals Case No: 07-6008 and No: 07-6013 U.S. Bankruptcy Court for the Eastern District of Arkansas

No complaint amendment to add promissory estoppel three after the plaintiff dropped it from his breach of employment contract lawsuit. Keating v. Ironwood Golf and Country Club voluntarily withdrew his promissory Bank, supra, if the district court had allowed (Not designated for permanent publication). Premier Omaha area golf club Ironwood Country Club hired Bradley Keating to be its chief operating officer in April 2001 with a five year employment contract, subject to the parties reaching within 90 days of starting employment agreement on work performance standards. Apparently Mr. Keating ran afoul of some big names, including Howard Hawks and Thomas Fitzgerald. The club terminated him after 90 days. Keating sued for breach of contract and for breached promissory estoppel. After Ironwood filed its initial demurrer to the promissory estoppel count, Keating withdrew this from his pleading. But nearly three years later in response to Ironwoods motion for a complete summary judgment he sought to reinstate it. Nebraska Court of Appeals, unpublished decision, affirms summary judgment. "Keating sought to change his lawsuit from a straightforward breach of a written contract action to a promissory estoppel cause of action only after the hearing on Ironwood’s motion for summary judgment, nearly 3 years after Keatingestoppel cause of action. Similarly to Cimino v. FirsTierKeating to amend his pleading, the basis of his lawsuit would have been significantly altered after 3 years of proceeding to defend a case based only on a breach of contract cause of action. For these reasons, the district court did not abuse its discretion in refusing to grant Keating’s motion for leave to file an amended petition to change his theory of recovery from a breach of contract claim to one of promissory estoppel."

Follow up: on remand the Nebraska Supreme Court again reverses the Commission on Industrial Relations in the dispute between the Hyannis Educational Association and the Grant Public School District ; Supreme Court rules in favor of school district that "deviation clauses" from union contracts between several other school districts and teachers' representatives were prevalent, whether they had open-ended or specified conditions, and therefore the CIR erred when it threw out the school district's deviation clause. Hyannis Educational Assn. v. Grant County. Sch. Dist. No. 38-0011, S-06-300The Supreme Court also declined to moot the case because of the Legislature's Class I Schools' consolidation bill from two years ago, 2005 Neb. Laws, L.B. 126.

The Nebraska Supreme Court decides that good police discipline, i.e., toeing the line, overrides Union activity and the public's right to know police officers' public safety concerns. Omaha Police Union Local 101 v. City of Omaha, S-06-403 Omaha Police Department Chief sought to discipline two officers who were police union officials for comments they made about the OPD's 911 standards. One commented that the OPD's procedures were "misleading" and this was during a union meeting. The chief tried to discipline this officer but Internal Affairs dismissed the case. A second officer wrote and article that was barely insubordinate, in that article the officer wrote an article was generally critical of the standard operating procedures for two-officer 911 calls and the manner in which the city and OPD calculated response time. Housh characterized city officials as “[a] bunch of grown men and women, supposedly leaders, acting like petty criminals trying to conceal some kind of crime.” He also stated that “[t]hey refuse to do it, they know they have screwed up, and rather than admitting guilt, they (whoever they are) will make history and try to control what is said/revealed during union meetings regarding response time.” The comments about "grown men" cant be true, because if the police administration had grown men, it would not have thought these comments while harsh amounted to a disciplinary breach. Anyway the Supreme Court gives the department what it wants, the chance to tie up anyone who questions authority and public safety and make them think twice about rocking the boat, because next time an employee criticizes his government employer he will have to navigate a maze of constitutional balancing tests, juggling and water torture.

Eighth Circuit Court of Appeals affirms $1.00 religious discrimination verdict against Omaha area home builder that required employees to attend motivational sessions to promote the owner's beliefs in reincarnation and other Buddhist and Hindu doctrines. Real estate developer fired salesman who was a devout member of the Assemblies of God Church for “poor leadership and lack of judgment,” although the salesman did admit to making inappropriate sexual comments to a female co-worker. Ollis’s official termination did not include any reference to sexual harassment. A principal of the developer also testified he used “muscle testing” in his decision to terminate the plaintiff. The Plaintiff objected to having to attend company events that he perceived to be cult-like indoctrination sessions, including beliefs in incarnation and other Buddhist and Hindu doctrines. The Plaintiff sued for discrimination and retaliation. The jury awarded only $1.00 of damages plus attorney fees. Eighth Circuit affirms.062852P.pdf 07/27/2007 Doyle Ollis, Jr. v. Hearthstone Homes U.S. Court of Appeals Case No: 06-2852 District of Nebraska Riley, Circuit Judge. "the record indicates Ollis held sincere Christian religious beliefs. The record also provides some support for Ollis’s contention HearthStone required Ollis to attend MBE sessions to “cleanse negative energy.” These sessions involved affirming the belief in past lives, participating in ritual-like activities, and reading Hindu and Buddhist literature. Ollis testified the MBE sessions conflicted with his religious beliefs. Ollis testified he informed Smith and Langford of the conflict between the MBE requirements and his religious beliefs. Ollis testified he expressed his disagreement with HearthStone’s core values at company meetings where Smith was present. Ollis told Smith he declined to participate in after-hours sessions designed to “clear some Mind Body Energy work.” Finally, Ollis satisfied the third element of his prima facie case, that is, he suffered an adverse employment action, termination.Although the evidence is thin, we find there was a sufficient evidentiary basis for a reasonable jury to find in Ollis’s favor on his claim of religious discrimination.

Train engineer PO'd the Nebraska Supreme Court; Supreme Court reverses $53K jury verdict that was in Burlington Northern employees favor after the railroad disciplined him for refusing to submit to a urine test. Jackson v. Brotherhood's Relief & Comp. Fund, S-06-177, 273 Neb. 1013. On the day the railraod asked the plaintiff to submit to a urine test, he refused,first that he had already urinated before reporting to work, next that he would not drink water because that would give him indigestion, finally that he was taking the antidepressant effexor and his doctor had diagnosed him to have prostatitis, and he claimed that a side effect of the drug was difficulty in urinating. Burlington northern suspended the plaintiff for several months, and he made a claim for reimbursement of lost income from his Union fund that compensates members for time lost due to minor disciplinary actions. The fund refused to pay and the Plaintiff sued. The Box Butte county jury ruled for the plaintiff in part from evidence that he was unable to urinate due to the drugs side effects and from the plaintiff's unverified hair samples that purported to show him drug free. Supreme Court reverses, as the Plaintiff could not establish the proper reasons to admit this mostly scientific evidence. "Insufficient foundation was laid for Jackson’s opinions regarding medical causation, the excerpts from the medical and nutrition books, the prescribing information for effexor, and the results of the forensic hair analyses. evidence that would not have made it through the front door of admissibility nevertheless made its way to the jury through the back door, cloaked as exhibits 17 and 18. We conclude that the district court abused its discretion in admitting exhibits 17 and 18 into evidence. " The court further found admitting the exhibits reversible error because nothing indicated that their admission was harmless.exhibits 17 and 18 into evidence could have unfairly prejudiced the Fund in a number of ways. because we are unable to determine that exhibits17 and 18 did not affect the result of the trial unfavorably to the Fund, we conclude that reception of that evidence was prejudicial and reversible error.

Nebraska Supreme Court (J Miller-Lerman) reverses doctor's verdict against Norfolk Faith Regional Hospital for over $1.3 million because the court instructed the jury that the doctor was an employee of the Hospital rather than an independent contractor. Domjan v. Faith Regional Health Servs., S-05-1463, 273 Neb. 877. The court instructed the jury that the parties were in an employment relationship and further that termination was only for good cause rather than cause. The court suggested that the instruction's suggestion that the doctor was an employee and not a contractor probably swayed the jury to the doctor's favor. Further the jury instruction used the term good cause, one for employment relationships rather than "cause" from the contractor agreement, further misleading the jury. Employment good cause is the standard for a reasonable employer to dismiss and employee while contractual cause is material breach or default...in light of the actual custom of persons in the performance of contracts similar to the one involved in the specific case.” Phipps v. Skyview Farms, 259 Neb. 492, 499, 610 N.W.2d 723,730-31 (2000). Reversed for a new trial

Thank you Nebraska Supreme Court for keeping lawyers busy when business was starting to dry up. The supreme court (J Connolly, again) extends its ruling in Jackson v. Morris Communications Corp.265 Neb. 423, 657 N.W.2d 634 (2003) , that allowed retaliatory discharge actions for injured workers who sued their employers to almost any kind of adverse employment action in Trosper v. Bag 'N Save, S-05-889, 273 Neb. 855 This ruling comes at just the right time as the Nebraska Worker Compensation court most recent annual report shows that job injuries and claims have steadily fallen for the past 9 years. All is not lost for business though, because the Nebraska Supreme court will copy and paste all employment discrimination law from the glorious federal government to carry out its quest for more attorney fees and justice.

Douglas County did not discriminate against female correctional officers when jail administrators reassigned female guard to late night shift. Tipler v. Douglas County, NE 062553P.pdf 04/12/2007District of Nebraska – Omaha employment discrimination case. Plaintiff was a corrections officer at the Douglas county jail. She initially served the standard day shift, but was reassigned to a less desirable night shift. After three months she regained her day shift, but in the meantime she suffered headaches, childcare problems and other woes. Naturally she sued under Title VII(42 U.S.C. § 2000e-2(a)) and the Constitution (42 U.S.C. § 1983, US constitution amendment 14). Male corrections officers did not experience the same shift change difficulties. The district court found that the County had a reasonable gender-based job assignment policy, and that Tipler "failed to establish any right to a particular shift assignment or that the assignment resulted in more than a minimum restriction on her employment." The court granted the County summary judgment. The Eighth Circuit affirms. The County "acknowledges that Appellant's gender was a factor in moving her to a different shift." However “An employer may treat employees differently based on gender when it is "a bona fide occupational qualification reasonably necessary to the normal operation of thatparticular business." See 42 U.S.C. § 2000e-2(e). Prison assignments qualify for such personnel actions. Plaintiff's reassignment to a different shift on the ground that additional females were needed on that shift in order to supervise female prisoners was reasonable and required in order for the facility to comply with state prison standards; reassignment imposed only a minimal restriction on plaintiff; county employed means that were substantially related to achieving important government objectives, and the transfer did not violate plaintiff's rights under the Equal Protection Clause

Is pregnancy a disease? Even though some feminists and college boys might think so, the Eighth Circuit court of appeals declines to decide this issue, but agrees with Union Pacific that it did not have to cover contraceptive prescriptions that were not related to medical conditions. Plans did not violate Title VII or the Pregnancy Discrimination Act Standridge v. Union Pacific 061706P.pdf 03/15/2007 U.S. Court of Appeals Case No: 06-1706 District of Nebraska - Omaha Female plaintiffs sued their employer Union Pacific Railroad Company (“Union Pacific”) for sexual discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., as amended by the Pregnancy Discrimination Act of 1978 (“PDA”), 42 U.S.C. § 2000e(k). The district court granted plaintiffs partial summary judgment. Union Pacific appealed and the Eighth Circuit reverses: because the Union Pacific health plan excluded both male and female contraception unless they were necessary for other medical conditions, the railroad did not discriminate against the female employees. The district court held that Union Pacific violated Title VII, as amended by the PDA, because “it treats medical care women need to prevent pregnancy less favorably than it treats medical care needed to prevent other medical conditions that are no greater threat to employees’ health than is pregnancy.” The Eighth Circuit earlier held that a health plan could exclude infertility treatments for men because “infertility is outside of the PDA’s protection because it is not pregnancy, childbirth, or a related medical condition.” Krauel v. Iowa Methodist Medical Center, 95 F.3d 674 (8th Cir. 1996 Judge Bye, dissenting” Women are uniquely and specifically disadvantaged by Union Pacific’s failure to cover prescription contraception. Because I believe such a policy violates Title VII, as amended by the PDA, I respectfully dissent. Although the district court’s decision might appear to grant women benefits above and beyond those of men, the PDA requires such benefits be included in an otherwise comprehensive health care plan.

Follow up: Federal District Court in Kansas allows class action suit to proceed against Tyson despite earlier 1994 settlement to the contrary. KansasCity.com Last week the US District Court for Kansas denied summary judgment to Tyson Foods in its Holcomb Kansas workers' class action suit that seeks millions of dollars in back pay for overtime to put on special protective gear in the plant. Tyson alleged the 10th Circuit decision in 1994 settled the matter and even though the US Supreme Court reversed the law on that case it was still final. See Reich v. IBP, Inc., 38 F.3d 1123 (10th Cir. 1994). The recent case is Garcia et al v. Tyson Foods. USDC KS 06-2198-JWL In 1994, the 10th U.S. Circuit Court of Appeals held that donning and doffing of standard protective gear was not “work” within the meaning of the federal wage and hour laws and therefore was not compensable. But in 2005, the Supreme Court in IBP, INC. V. ALVAREZ (03-1238) held that any activity that is “integral and indispensable” to a “principal activity” performed by production workers is compensable under the Fair Labor Standards Act.The case before Lungstrum was filed last May by 262 current and former workers at the Tyson Fresh Meats Inc. plant in Holcomb. The number of plaintiffs has since grown to 823. The workers claimed they did not receive wages and overtime pay for the time spent putting on and removing protective clothing and walking to and from work stations. The suit seeks certification as a class action on behalf of all overtime-eligible Tyson employees who have worked at the 2,500-employee plant in the past five years. Lungstrum’s ruling came after Tyson sought summary judgment in the case. The company argued that the 10th Circuit’s 1994 decision was still applicable law in Kansas. In denying Tyson’s motion, Lungstrum found that whether standard protective clothing is “integral and indispensable” to the Tyson employees’ work is a factual question for a jury to decide. Tyson also argued that a settlement of the 1994 case, which was brought against meatpacker IBP by the Department of Labor, barred the workers’ additional request for compensation for time in excess of four minutes spent by employees donning and doffing specialized — as opposed to standard — protective clothing. The settlement required IBP, which was later acquired by Tyson, to compensate those employees an additional four minutes per shift for the time they spent putting on and removing specialized protective gear such as Kevlar gloves and sleeves, rubber gloves, plastic arm guards and mesh aprons. Lungstrum found that although the settlement used a “reasonable time” method to arrive at the back pay awarded to the workers, “it did not absolve defendants, on a prospective basis, from recording and compensating employees for actual time spent donning and doffing specialized clothing and gear.” Kansas City lawyer George Hanson, who represents the Tyson workers, said he was pleased with the decision and hoped that Tyson “will finally realize it is obligated to reform its compensation policies in order to comply with the law