Articles Posted in Labor & Employment Law

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A 2004 IRS regulation excluded medical residents from the FICA tax student exception for services provided after April 1, 2005. In 2010, the IRS decided that residents could qualify for the exception for tax periods ending before April 1, 2005, such that “hospitals and [medical] residents who had filed protective refund claims for tax periods before April 1, 2005[,] would be able to obtain refunds of the FICA taxes.” Former residents sued, alleging that the Hospital had not filed protective refund claims 1995-2001. The Hospital and residents entered into a settlement: the Hospital agreed to pay the residents $6,632,000, stating that the payment “can be appropriately characterized as a refund for the amount of FICA taxes previously withheld.” The Hospital then sued the United States, alleging that Internal Revenue Code 3102(b) entitled it to indemnification for the settlement. The Claims Court dismissed, holding that section 3102(b) is not a money-mandating source of substantive law, as required for Tucker Act jurisdiction, 28 U.S.C. 1491(a)(1). The Federal Circuit reversed. Section 3102(b), which states “[e]very employer required so to deduct the tax shall be liable for the payment of such tax, and shall be indemnified against the claims and demands of any person for the amount of any such payment made by such employer,” is reasonably amenable to an interpretation that mandates the government to reimburse FICA taxes paid by an employer. View "New York and Presbyterian Hospital v. United States" on Justia Law

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The patent, entitled “Full Duplex Single Clip Video Codec” lists co-inventors, Woo, Li, and Hsiun, and was created while they were Infochips employees. Infochips’ “receivables,” pledged as security, were seized by LM when Infochips went out of business in 1993; in 1995, LM sold Infochips’s assets to Woo. Woo assigned his interest in the patent to AVC. In 1995, AVC filed the patent's parent application. Woo and Li assigned their interests to AVC. Hsiun refused to do so. The PTO permitted AVC to prosecute the application without that assignment. AVC claimed that it obtained Hsiun’s interests by Hsiun's 1992 Employment Agreement with Infochips. The patent was issued to AVC, which later dissolved, after purporting to transfer its assets to its successors (Advanced Video). In 2011, Advanced Video filed patent infringement lawsuits. The district court found that AVC had not complied with Delaware statutes governing dissolved corporations and that no patent rights had transferred to Advanced Video. The cases were dismissed. The state court appointed a Receiver to transfer AVC's patent rights to Advanced Video. After the transfer, Advanced Video filed new infringement lawsuits, arguing that its acquisition of Hsiun’s interest was effected by the Employment Agreement’s “will assign,” trust and quitclaim provisions. The court rejected the argument and, because Hsiun was not a party to the suit, dismissed for lack of standing. The Federal Circuit affirmed. Hsiun never actually assigned her rights, despite her promises to do so. View "Advanced Video Technologies, LLC v. HTC Corp." on Justia Law

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The Directors of the Office of Compliance affirmed a finding that the U.S. Capitol Police (USCP) engaged in unfair labor practices when it issued Officer Konczos a Command Discipline Warning in response to Konczos’s protected union activity, 5 U.S.C. 7102. Konczos had expressed dissatisfaction with the USCP policy of requiring officers to work a double-shift when the need arises, sometimes informing an officer about the extra shift only at the last minute. The Collective Bargaining Agreement between the Fraternal Order of Police and the USCP permits the USCP to require officers on the current tour to be held over for a subsequent tour. The Federal Circuit affirmed. The parties did not dispute that Konczos engaged in protected activity when he raised the issue during regularly scheduled labor-management meetings and when he reiterated his concerns in an email to the police chief; the court rejected USCP’s argument, that the portion of Konczos’s email protesting his own personal holdover did not constitute a protected activity. Substantial evidence supported findings that Konczos made a prima facie case of discrimination and that USCP’s stated justifications were pretextual. View "United States Capitol Police v. Office of Compliance" on Justia Law

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Petitioners, employed by the Office of Air and Marine (OAM), within the Department of Homeland Security, alleged that the agency’s actions and policies violated the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301–4335. They were members of the Air Force and Navy Reserves. They subsequently resigned, claiming that they were “forced to quit.” An administrative judge (AJ) rejected Petitioners’ contention that the OAM violated USERRA by failing to grant them waivers from participating in training courses that conflicted with their military service dates, creating a hostile work environment, forcing them to surrender their badges and weapons during military leaves of 30 or more days, delaying within-grade pay increases, and requiring them to use annual, sick, or other leave in lieu of military leave. The AJ found “a legitimate basis for the [Agency’s] security policy,” and an “absence of any evidence that its [weapons] policy was adopted with discriminatory intent.” Allegedly hostile incidents were either “‘unavoidable’ workplace friction” or did not rise to the level of “humiliating,” “physically threatening,” or “so frequent and pervasive” to render their work environment hostile. They later filed a second complaint, alleging constructive discharge. The AJ, the Merit Systems Protection Board, and the Federal Circuit agreed that the constructive discharge claims were barred by collateral estoppel as “inextricably linked” to their previous hostile work environment claims. The standard for establishing constructive discharge is higher than that for hostile work environment, View "Bryant v. Merit Systems Protection Board" on Justia Law

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Henderson was a VA Program Analyst. Veterans may, under certain circumstances, obtain medical care from private physicians and facilities after obtaining preauthorization from a VA supervisory physician. An “unresolved authorized consult” means that a veteran’s medical appointment with an outside provider has not been scheduled or completed, or the completed appointment has not been memorialized. Henderson was charged with 50 counts of making false statements related to health care matters, 18 U.S.C. 1035, for ordering VA employees under his direction to close 2700 unresolved authorized consults by falsely declaring the consults were completed or refused by the patients. The VA informed Henderson that it proposed to suspend him for an indefinite period, noting that if convicted, he would face a maximum sentence of five years in prison on each count. Henderson, through counsel, denied the allegations, requested documentary evidence from the VA regarding his alleged wrongdoing, and asked that the proposed suspension be stayed pending the outcome of the criminal proceedings. The VA indefinitely suspended Henderson. A Merit Systems Protection Board administrative judge found, and the Board, and Federal Circuit affirmed, that the indictment provided the VA with reasonable cause to believe that he had committed a crime for which imprisonment could be imposed. The VA established a nexus between the criminal charges and the efficiency of the service. View "Henderson v. Department of Veterans Affairs" on Justia Law

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Lentz entered federal service in 2002. He had no disciplinary record until May 2014, when his supervisor issued a reprimand based on his authorization of grazing on public lands, without prior approval. In November, Lentz’s supervisor proposed a 14-day suspension, citing his management of interns, behavior toward supervisors, and interaction with outsiders. Lentz then went on medical leave. The proposed suspension was sustained, to commence on February 15, 2015. Lentz resigned on February 13, citing harassment and a hostile work environment that aggravated an illness and his veterans disability. He claimed to have filed complaints under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301–4335, and that the reprimands were retaliatory. Before the Merit Systems Protection Board (MSPB), Lentz asserted constructive discharge, discrimination on the basis of his status as a disabled veteran, and retaliation for filing a complaint. The Administrative Judge dismissed the involuntary resignation claim under 5 U.S.C. 75, and held that Lentz was collaterally estopped from raising in the USERRA proceeding the evidence and issues assigned to the involuntary resignation proceeding. The AJ later dismissed the discrimination charges, stating that Lentz failed to make non-frivolous allegations that a reasonable person would have felt compelled to resign due to discrimination or reprisal. The Board affirmed. The Federal Circuit vacated, finding that the dismissal was based on incorrect evidentiary procedures including the inappropriate application of collateral estoppel, and remanded the issue of constructive discharge. View "Lentz v. Merit Systems Protection Board" on Justia Law

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Morrison’s position as a New London Naval Submarine Base firefighter required a security clearance. The Navy revoked Morrison's clearance, citing concerns regarding his personal finances. Regional Fire Chief Cox signed a letter finalizing Morrison’s removal but it was not immediately formally issued. Instead, District Fire Chief Clapsadle, who was to deliver the letter, offered Morrison the option to retire preemptively. Morrison chose to retire, thinking his retirements benefits were at risk. In fact, Morrison would have received those benefits regardless of whether he retired or was terminated, 5 U.S.C. 8312-8315. After learning that his benefits were not at risk, Morrison appealed to the Merit Systems Protection Board, claiming that his retirement was involuntary. Based on Morrison’s allegations that an agency manager had told him he would lose his benefits if he were terminated, the Board held that an agency is required to provide employees with adequate information to make an informed retirement decision but that, if the Navy would have removed Morrison, he was not entitled to reinstatement or back pay. The Federal Circuit dismissed Morrison’s petition for lack of jurisdiction. The Board’s ruling was not a “final decision,” but required the Navy to decide whether and when Morrison would have been terminated if he had not retired. . View "Morrison v. Department of the Navy" on Justia Law

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Sacramento FBI Agent Parkinson led a group tasked with relocating a previously compromised undercover facility. In 2006, the FBI leased a facility from Rodda, who agreed to contribute $70,000 to construction, documents, permits and fees. Parkinson negotiated the lease for the FBI, and managed the tenant improvement funds. In 2008, during the work, Parkinson made whistleblower-eligible disclosures, implicating pilots in misconduct. Parkinson’s supervisor issued Parkinson a low-performance rating, removed him as group leader, and reassigned him. Believing this to be retaliation, Parkinson contacted Senator Grassley, who forwarded Parkinson’s allegations to the Department of Justice’s Office of the Investigator General (OIG), which OIG sent the FBI its report. The Merit Systems Protection Board (MSPB) upheld Parkinson’s subsequent termination for lack of candor under oath and obstruction of the Office of Professional Responsibility. The Federal Circuit sustained the obstruction charge and dismissal of Parkinson’s affirmative defense of violations of the Uniformed Services Employment and Reemployment Rights Act, but remanded the lack of candor charge. On rehearing, en banc, the court concluded that 5 U.S.C. 2303 requires all FBI employees to bring claims of whistleblower reprisal to the Attorney General and vacated that portion of its prior opinion. View "Parkinson v. Department of Justice" on Justia Law

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Waymo sued Uber and Ottomotto for patent infringement and violations of trade secret laws, claiming that its former employee, Levandowski, improperly downloaded documents related to Waymo’s driverless vehicle technology, then left Waymo to found Ottomotto, which Uber subsequently acquired. Before that acquisition closed, counsel for Ottomotto and Uber retained Stroz to investigate Ottomotto employees previously employed by Waymo, including Levandowski. During discovery, Waymo successfully moved to compel the defendants to produce the Stroz Report. Waymo also subpoenaed Stroz to obtain the Report plus the communications, documents, and devices provided to Stroz. Levandowski, Ottomotto, and Uber unsuccessfully moved to quash the subpoena, arguing that the Report was subject to attorney-client privilege or work-product protection. The Federal Circuit denied Levandowski’s petition for mandamus relief. Levandowski failed to articulate any persuasive reasons why disclosure of the Report should be barred; the possibility of admissions against his interest is a valid function of civil discovery. The court rejected Levandowski’s “unsupported assertions” that the district court would be unable to “cleanse the trial of all taint from the improper disclosure,” noting that the court had examined the Report in camera and declined to exclude it. The district court properly determined that the common interest doctrine did not apply, found that Levandowski waived work-product protection, and rejected Levandowski’s claim of Fifth Amendment privilege. View "Waymo LLC v. Uber Technologies, Inc." on Justia Law

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Piccolo, an officer at the Bureau of Immigration and Customs Enforcement, within the Department of Homeland Security (DHS) made a disclosure related to DHS’s practice of releasing unaccompanied alien children to non-family sponsors with criminal records. The Merit Systems Protection Board (MSPB) dismissed, for lack of jurisdiction, his individual right of action appeal claiming that he was subject to adverse personnel action in retaliation for that protected whistleblowing activity. The MSPB found that he failed to make nonfrivolous allegations “to demonstrate that his protected activity was a contributing factor in the agency’s decision to take [adverse] personnel action,” 5 U.S.C. 1221(e)(1). The MSPB subsequently agreed that Piccolo had established jurisdiction and that “the AJ made legal errors in his jurisdictional findings” The Federal Circuit reversed and remanded, “reiterating” that a petitioner’s credibility including, as in this case, consideration of affidavits submitted by an allegedly retaliatory supervisor claiming no knowledge of the petitioner’s protected disclosure or motivation to retaliate, “relate[s] to the merits of [the] claim.” Non-frivolous allegations suffice at the jurisdictional stage Piccolo’s disclosures allege serious breaches in DHS’s practices that threaten the safety of minor children. His non-frivolous allegations that such disclosures contributed to negative personnel action deserve a merits hearing. View "Piccolo v. Merit Systems Protection Board" on Justia Law