565
Chapter 34
Employment, Immigration,
and Labor Law
Case 34.1
C.A.3 (N.J.),2010.
Smith v. Johnson and Johnson
593 F.3d 280, 159 Lab.Cas. P 35,700, 15 Wage & Hour Cas.2d (BNA) 1345
United States Court of Appeals,
566 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
This matter comes on before this Court on appeal and cross-appeal from an order of the District Court entered on December 30,
2008, granting summary judgment against plaintiff Patty Lee Smith and in favor of defendant Johnson and Johnson (“J & J”). We
will affirm on Smith’s appeal but will dismiss J & J’s cross-appeal.
issued a large number of prescriptions for Concerta or a competing product, and Smith could choose to visit high-priority doctors
more than once each quarter. J & J gave her a budget for these visits and she could use the money in the budget to take the
doctors to lunch or to sponsor seminars.
At the meetings, Smith worked off of a prepared “message” that J & J provided her, although she had some discretion when
deciding how to approach the conversation. J & J gave her pre-approved visual aids and did not permit her to use other aids. J & J
Smith completed post-visit reports summarizing the events of the visits. Smith would refer back to this information before her next
visit to the same doctors. After adding up the time she spent writing pre-visit reports, driving, conducting the visits, writing post-visit
reports, and completing other tasks, Smith worked more than eight hours per day.
Smith earned a base salary of $66,000 but was not paid overtime, though J & J, at its discretion, could award her a bonus. J & J
considered the number of Concerta prescriptions issued in Smith’s territory in determining her bonus. The collection of this data
FN1. Smith’s situation is not unique, and cases similar to this one are pending in the Courts of Appeals for the Second
and Ninth Circuits. Our opinion, however, focuses on Smith and the specific facts developed in discovery in this case.
Consequently, we recognize that based on different facts, courts, including this Court, considering similar issues involving
FN2. J & J’s cross-appeal urges us to affirm on the alternate basis of the outside salesman exemption. Yet a party,
without taking a cross-appeal, may urge in support of an order from which an appeal has been taken any matter
appearing in the record, at least if the party relied on it in the district court.
See United States v. American Ry. Express
Co.,
265 U.S. 425, 435, 44 S.Ct. 560, 564, 68 L.Ed. 1087 (1924). Consequently, J & J’s cross-appeal is superfluous and
Cir.1990). Federal Rule of Civil Procedure 56(c) sets forth the standard for summary judgment and states that summary judgment
shall be granted only if “there is no genuine issue as to any material fact and … the movant is entitled to judgment as a matter of
law.” To be material, a disputed fact must be one that might “affect the outcome of the suit under governing law.”
Anderson v.
Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). We draw all reasonable inferences in favor of
(1) Compensated on a salary or fee basis at a rate of not less than $455 per week … exclusive of board, lodging or other
facilities;
(2) Whose primary duty is the performance of office or non-manual work directly related to the management or general business
operations of the employer or the employer’s customers; and
(3) Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
independent and managerial qualities that her position required. Her non-manual position required her to form a strategic plan
designed to maximize sales in her territory. We think that this requirement satisfied the “directly related to the management or
general business operations of the employer” provision of the administrative employee exemption because it involved a high level
of planning and foresight, and the strategic plan that Smith developed guided the execution of her remaining duties.
See
29 C.F.R.
§ 541.203(e) (“Human resources managers who formulate, interpret or implement employment policies and management
consultants who study the operations of a business and propose changes in organization generally meet the duties requirements
for the administrative exemption.”);
Reich v. John Alden Life Ins. Co.,
126 F.3d 1, 3-5, 12 (1st Cir.1997) (applying administrative
568 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
FN3. We also point out that although the “sham affidavit” doctrine is not applicable here, the principle of that doctrine
surely is. Under the sham affidavit doctrine a court will disregard an affidavit inconsistent with an affiant’s prior deposition
testimony when a party moves for summary judgment on the basis of the deposition unless the party relying on the
9.FN4
FN4. Inasmuch as we affirm the District Court’s application of the administrative employee exemption, we do not address
the question of the applicability of the outside salesman exemption.
Case 34.2
512 F.3d 903, 155 Lab.Cas. P 35,385, 13 Wage & Hour Cas.2d (BNA) 265, 36 NDLR P 70
United States Court of Appeals,Seventh Circuit.
Richard L. DARST, as Trustee for the Bankruptcy Estate of Krzysztof Chalimoniuk, Plaintiff-
Appellant,
v.
FN1. During the course of this litigation, Chalimoniuk filed a Chapter 7 bankruptcy proceeding in the United
States Bankruptcy Court for the Southern District of Indiana. His claim against the defendants became part of
the bankruptcy estate, and Richard L. Darst, as trustee for that estate, has continued to prosecute the claim
on behalf of the estate.
FN2. All dates hereafter are in 2000 unless otherwise specified.
I.
IBC has a points-based system for tracking and disciplining employees for absenteeism. A certain number of points
are assessed to the employee based on the nature of the infraction. For example, an employee who is absent with an
advanced call to IBC earns three points for each day of absence. An employee who is absent without calling in nets
four points per day. On one end of the spectrum, a late return from lunch merits one point; on the other end, a failure
to complete a shift with no note from a doctor results in a six-point assessment. The accumulation of twelve points
leads to a written warning. Eighteen points warrant a written reprimand. Normally, twenty-four or more points result in
discharge. For Chalimoniuk, for reasons that are not relevant here, the cut-off for discharge was thirty-two points. No
points are accumulated under IBC’s policy for an absence covered by FMLA. Prior to July 29, Chalimoniuk had
accumulated twenty-three points.
inpatient treatment of his alcoholism. He remained there through August 10, completing his treatment.
FN3. At his deposition, Chalimoniuk testified, “I don’t remember really almost anything. It’s some kind of
things which confused me. I don’t know where I was between say like the Saturday and probably Tuesday. I
570 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
Health Care Provider” form to his wife on August 7, and he returned the completed form (hereafter “Certification”) to
IBC’s assistant human resources manager, Tonia Gordon, on August 11. IBC’s three-page form closely tracks form
WH-380, a sample form provided by the Department of Labor*906 that meets the minimum requirements under the
applicable FMLA regulations. The physician who treated Chalimoniuk at Fairbanks Hospital, Dr. Stephen Pfeifer,
completed the Certification. In particular, Dr. Pfeifer indicated that Chalimoniuk’s “Serious Health Condition” involved
“Absence Plus Treatment.” FN4 Absence Plus Treatment is defined, in relevant part, as a period of incapacity of more
FN4. “Serious Health Condition” is a defined term in the FMLA. Department of Labor regulations and form
WH-380 define Serious Health Condition as an illness, injury, impairment, or physical or mental condition that
involves, among other things, Hospital Care, Absence Plus Treatment, Pregnancy, Chronic Conditions
Requiring Treatments, Permanent/Long-term Conditions Requiring Supervision, and Multiple Treatments
(Non-Chronic Conditions).
See
29 C.F.R. § 825.114; Dept. of Labor Form WH-380. Each of these categories
is further defined and we will address only those parts of the regulations that relate to Chalimoniuk.
Also on August 11, Chalimoniuk submitted a Health Insurance Claim form to Gordon. This Mutual of Omaha form was
required for an employee to be paid for an absence due to disability. Part of the required information on this form was
the “Attending Physician’s Statement.” This part of the form was completed by Dr. Timothy Kelly, another physician
affiliated with Fairbanks Hospital, who listed the disability as “Alcoholism 303.90” and stated that the “Dates of
CHAPTER 34: EMPLOYMENT, IMMIGRATION, AND LABOR LAW 571
head of the Cake Department (the Muffins Department was part of the Cake Department), and an assistant
production manager. At this meeting, Chalimoniuk confirmed that he entered the hospital on August 4, and Gordon
FN6. In his complaint, Chalimoniuk also alleged that the defendants discriminated against him for asserting
his rights under the FMLA, in violation of 29 U.S.C. § 2615(a)(2). He also asserted state law claims for breach
of contract and for equitable relief. The district court granted summary judgment in favor of the defendants on
those claims, which are not at issue in this appeal.
*908[3] The substantive law at issue is the FMLA. Under the FMLA, eligible employees are entitled to up to twelve
his entitlement to FMLA leave on the relevant dates.
[4] A Serious Health Condition is defined as an illness, injury, impairment, or physical or mental condition that involves
either (1) inpatient care in a hospital, hospice, or residential medical facility; or (2) continuing treatment by a
absence that would excuse the absence under IBC’s point system except that he was in treatment for alcoholism. We
turn, therefore, to whether Chalimoniuk has enough evidence to create a genuine issue of fact regarding whether he
was in treatment for alcoholism on those days.
Chalimoniuk concedes he was not in inpatient treatment at Fairbanks Hospital for alcoholism until August 4. The
question, then, is whether Chalimoniuk was in inpatient treatment at some other facility, or outpatient treatment on
health care provider or (2) treatment by a health care provider on at least one occasion which results in a regimen of
continuing treatment under the supervision of the health care provider. The form specifies that “Treatment” includes
“examinations to determine if a serious health condition exists and evaluation of the condition. Treatment does not
include routine physical examinations, eye examinations, or dental examinations.” A “regimen of continuing treatment”
includes a course of prescription medication or therapy requiring special equipment but does not include taking over–
FN7. Although we realize that the form cannot provide for every contingency, an update to include the special
requirements for substance abuse, the sole condition treated differently from every other “Serious Health
Condition” under the FMLA, would be helpful to employees and employers alike. The physicians who
complete the forms are undoubtedly less familiar with the details of the regulations than are the lawyers
dissecting them after the fact.
CHAPTER 34: EMPLOYMENT, IMMIGRATION, AND LABOR LAW 573
physician filling out the form indicated that the employee was incapacitated for more than three days but then listed a
single date in response to the question regarding the date the condition commenced and the probable duration of the
condition. The employee was able to demonstrate that, had he been given the opportunity to cure this deficiency, he
could have shown that he was in fact incapacitated for more than three days and was actually entitled to FMLA leave.
2612(a)(1) of this title, the employer may require, at the *911 expense of the employer, that the eligible employee
obtain the opinion of a second health care provider designated or approved by the employer concerning any
information certified under subsection (b) of this section for such leave.”). Chalimoniuk contends that because the
an employer who bypasses this step risks denying FMLA leave to an employee who is entitled to the leave, rendering
the employer liable for lost wages, benefits, interest, attorney’s fees, costs and other damages as provided by 29
U.S.C. § 2617. At the time IBC denied FMLA leave to Chalimoniuk, the company believed he was not receiving
inpatient treatment at Fairbanks Hospital during the three days in question, but as far as we can tell from the record,
the company did not know and did not inquire whether Chalimoniuk was in some other treatment program during that
contacted his physician’s office. Under the FMLA, however, “treatment” is a defined term that does not include actions
such as calling to make an appointment. Treatment would include examinations to determine if a serious health
condition exists and evaluation of the condition. But Chalimoniuk has produced no evidence that he was being
examined or evaluated on July 29, August 2 or August 3. Treatment does not include “any activities that can be
initiated without a visit to a health care provider.” Chalimoniuk complains that memories have faded since the time of
FN8. As evidence that he was being treated for alcoholism on the three relevant days, Chalimoniuk also
points to the insurance form signed by Dr. Kelly. Recall that this form listed the “Dates of services” as “7.29.00
to 8.10.00.” The record contains no medical records regarding treatment by Dr. Kelly (or any other health care
provider) on the three relevant days. Dr. Kelly signed a letter to Chalimoniuk’s regular physician, Dr. James
Kluzinski, stating that Chalimoniuk had given his permission to inform Dr. Kluzinksi that Chalimoniuk was
admitted to Fairbanks Hospital on August 4. The Fairbanks Hospital “Initial Screening” form indicates that
Case 34.3
515 F.3d 942, 183 L.R.R.M. (BNA) 2591, 155 Lab.Cas. P 10,968, 08 Cal. Daily Op. Serv. 1214, 2008 Daily Journal
D.A.R. 1422
United States Court of Appeals, Ninth Circuit.
LOCAL JOINT EXECUTIVE BOARD OF LAS VEGAS; Culinary Workers Union Local # 226, and
Bartenders Union Local 165, AFL-CIO, Petitioners,
Reorganized AG, LLC, Intervenor,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 05-75515.
Argued and Submitted Oct. 16, 2007.
FACTS
The Company operates a hotel and casino in Las Vegas, Nevada. On May 30, 2003, the Unions began an open
campaign to organize the housekeeping, food, and beverage departments. During the organizing campaign that
followed, the Company committed some unfair labor practices that are not at issue in this case. The issue in this
they were signing was “legal and binding,” and that if the Union ever became the collective bargaining representative,
the “card authorizes union dues to start coming out of [the card signer’s] paycheck.” Ms. Lynn assured Ms. Sapien
that she had given the buffet servers all the facts. There was then a brief conversation about union benefits including
insurance, and Ms. Sapien offered her opinion that even if the union organizing campaign was successful, there was
no guarantee that the hotel employees would get different medical insurance. Ms. Sapien told the servers that union
housekeepers in the employee dining room at Ms. Bueno’s request. As Ms. Bueno was signing a union card, Ms.
Briand came over to the table. Ms. Briand said Ms. Bueno “shouldn’t be signing things that she wasn’t sure about,
because what she was signing was something like a contract, and that [Felix] was probably promising something that
[Felix] wasn’t going to be able to give her.” Because Ms. Bueno did not understand English very well, Ms. Felix
translated Ms. Briand’s comments into Spanish. Ms. Briand asked what Ms. Felix was saying, and Ms. Felix explained
matter been before [us] de novo.’ ”
Sever v. NLRB,
231 F.3d 1156, 1164 (9th Cir.2000) (quoting
Walnut Creek
Honda Assocs. 2, Inc. v. NLRB,
89 F.3d 645, 648 (9th Cir.1996)). “If ‘there are conflicting interpretations of the facts,
and the one adopted by the Board is supported by substantial evidence,’ we may not substitute our own
interpretation.”
UAW v. NLRB,
834 F.2d 816, 822 (9th Cir.1987) (quoting
NLRB v. Anchorage Times Pub. Co.,
637
F.2d 1359, 1363 (9th Cir.1981)). “Indeed, we must enforce the Board’s judgment if, given the record, a reasonable
for determining whether an employer engages in unlawful surveillance or whether it creates the impression of
surveillance is an objective one and involves the determination of whether the employer’s conduct, under the
circumstances, was such as would tend to interfere with, restrain or coerce employees in the exercise of the rights
CHAPTER 34: EMPLOYMENT, IMMIGRATION, AND LABOR LAW 577
adjudicating the applicability of the Act to substantive conduct).
In addition, the NLRB found that the views expressed by Ms. Sapien and Ms. Briand were protected under Section
The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed,
graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the
provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.
29 U.S.C. § 158(c).
There is no evidence that either Ms. Sapien or Ms. Briand used threats, force, or promises of benefits that would strip
their speech of the protections of Section 8(c). Ms. Sapien attempted to give the buffet servers additional facts to
consider before signing the union cards. Ms. Briand told Ms. Felix that Ms. Bueno should not sign a union card
without fully understanding the consequences and provided her opinion that the union may not be able to deliver on
its promises. Ms. Felix voluntarily translated Ms. Briand’s comments for Ms. Bueno. After Ms. Felix explained the
translation, Ms. Briand left.
[4] The unions do not contend that the observations of organizing activity by Ms. Sapien or Ms. Briand were unlawful
by *947 themselves. The unions argue that the interruption of protected union activity, even to express opinions
protected by Section 8(c), makes the otherwise lawful observation unlawful. The Board characterized the facts in this
578 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
Supplemental Case Printout for:
Shifting Legal Priorities for Business
E.D.Mich.,2008.
Moroni v. Medco Health Solutions, Inc.
Not Reported in F.Supp.2d, 2008 WL 3539476 (E.D.Mich.)
United States District Court,
E.D. Michigan,
Southern Division.
Robert MORONI, Plaintiff,
v.
MEDCO HEALTH SOLUTIONS, INC., Defendant.
No. 08-11167.
Aug. 11, 2008.
II. BACKGROUND
Plaintiff is a consultant for, and Defendant is a third-party administrator of, prescription-drug programs. In 2005,
Plaintiff negotiated with Defendant through the latter’s authorized agents to provide consulting services. On November
8, 2005, Defendant’s agent Brian Griffin sent Plaintiff an email in which he memorialized the terms arising out of the
parties’ negotiations. FN1 This initial email details specific areas in which Defendant desired Plaintiff’s assistance:
1) Further development of the SEMI strategy and execution on our commitment to the Autos and BCBSM.
3) Consulting with us on our overall Autos strategy
4) Working with us on account specific Auto strategy as necessary.
The email correspondence further indicated that “[Defendant was thinking] of a one year retainer which assumes a 2
day a week commitment. The retainer would be 150,000 per year payable monthly.” Finally, the email expressed a
willingness to restructure the approach “to best meet [Plaintiff’s] objectives.”
Plaintiff responded by email on the same day. In the responsive email, Plaintiff stated, “I am happy to work on the
items you have outlined below and also hopefully many other issues where I know I can have a positive return for
both you and [Defendant].” Plaintiff agreed with the two day per week time commitment and indicated that if larger
projects arose, he “would consider that out of scope for this retainer.” Plaintiff then proposed the following contract
terms:
• This would be a 13 month retainer starting December 1, 2005 through December 31, 2006. I would like (sic) begin
working on your projects in December so that we can execute ASAP in January.
• The monthly retainer would be $17,000 ($204,000 annual)….
• All approved travel will be reimbursed by [Defendant] as appropriate.
Plaintiff concluded his email by requesting Defendant to let him “know the next step necessary to begin what I think
will be a very solid relationship.”
Defendant, again through Brian Griffin, replied to Plaintiff by email dated November 21, 2005. The text of this email
expresses acceptance of Plaintiff‘s terms:
Thanks for your feedback regarding the terms of a consulting arrangement. We accept your proposal of a 13 month
retainer at $17,000 per month starting December 1, 2005 through December 31, 2006. We agree that approved
travel would be reimbursed as appropriate by [Defendant]. I look forward to working with you on these important
initiatives (and hearing about your other ideas). I will call you to discuss next steps.
Plaintiff commenced his obligations under the terms set forth in the email exchanges, making himself available and
incurring travel expenses. Plaintiff presented invoices to Defendant reflecting amounts owed to him including the
retainer fees and travel expenditures. Defendant refused to tender payment. Plaintiff now brings this suit, alleging
Breach of Contract, Promissory Estoppel, and Unjust Enrichment / Quantum Meruit.
III. LEGAL STANDARD
reached a settlement in a state-court action against General Motors, his former employer, for tortious interference
with business relationships or expectancy. On account of this previous settlement, Defendant argues that Plaintiff is
now seeking an impermissible recovery. In connection with this position, Defendant asserts that the terms of the
settlement between Plaintiff and General Motors may impact the amount of relief properly requested and therefore
remove this matter from this Court’s jurisdiction.
Plaintiff sets forth various arguments in response to Defendant, including that the statute of frauds does not apply
because he is alleging promissory estoppel. Alternatively, Plaintiff contends that the email correspondences
amounted to an agreement of the essential terms of an employment contract and is therefore enforceable. Lastly,
Plaintiff notes that the settlement with General Motors is confidential, and the issue of double recovery is not properly
before the Court.
The statute of frauds invalidates a contract that “by its terms, is not to be performed within 1 year from the making of
the agreement … unless [it is] in writing and signed with an authorized signature by the party to be charged with the
Accepting the factual allegations of Plaintiff’s Complaint as true and resolving all ambiguities in Plaintiff’s favor, the
Court finds that Defendant’s Motion must fail. Defendant avers that the email correspondences constituted only an
agreement to agree, evidenced in particular by the lack of essential terms. The correspondences, however, outline
the length of employment, the compensation, the specific weekly time commitment, specific tasks to be performed as
well as others to be contemplated both inside and outside the scope of the agreement, and the reimbursement of
travel expenses. Defendant’s last email unequivocally notes, “We accept your proposal of a 13 month retainer at
$17,000 per month starting December 1, 2005 through December 31, 2006.” Defendant takes the position that the
email’s concluding statement, “I will call you to discuss next steps,” indicates that no meeting of the minds occurred
except to the extent that the parties agreed to discuss the matter in the future. At best, this concluding sentiment
injects an ambiguity into the nature of the relationship between the parties, and the legal standard applicable to
Defendant’s Motion requires the Court to resolve ambiguities in Plaintiff’s favor.
Additionally, Plaintiff’s Complaint states that he began performance and incurred expenses in reliance on the alleged
contract but was never paid. Accepting this to be true, the Court finds that Defendant’s Motion to Dismiss is
inappropriate. Finally, the Court cannot fathom how Defendant expects it to rely on a confidential settlement between
Plaintiff and a different defendant in a separate case before a state court to dismiss Plaintiff’s case or to divest this
