Westlaw Journal EMPLOYMENT Litigation News and Analysis • Legislation • Regulation • Expert Commentary VOLUME 29, ISSUE 17 / MARCH 17, 2015 ADMINISTRATIVE RULES WHAT’S INSIDE RELIGIOUS DISCRIMINATION Public notice, comment unnecessary for rule interpretation 8 Supreme Court hears argument in Muslim woman’s changes, Supreme Court says discrimination suit against Abercrombie A federal agency does not need to follow formal rule-making procedures, including EEOC v. Abercrombie & Fitch eliciting public comment, when it changes its interpretation of federal statutes and Stores (U.S.) regulations, the U.S. Supreme Court has ruled. AGE DISCRIMINATION Perez et al. v. Mortgage Bankers Association et 11 Walgreens rightly fired al., Nos. 13-1041 and 13-1052, 2015 WL 998535 pharmacist for refusing to (U.S. Mar. 9, 2015). immunize, judge says Prewitt v. Walgreens Co. The Administrative Procedure Act, 5 U.S.C. § 551, (E.D. Pa.) does not require an agency to follow the public notice and comment process when it first issues AMERICANS WITH an interpretative rule, the high court said, so an DISABILITIES ACT agency does not have to seek comments when it 12 6th Circuit says worker not makes a change. required to tie disability to job request The U.S. Department of Labor had argued REUTERS/Stelios Varias that agencies must be free to update statute Mobley v. Miami Valley Hosp. The high court overturned a District of Columbia (6th Cir.) interpretations without formal procedures, while U.S. ircuit Court of Appeals decision that said a real estate finance trade group countered WAGE AND HOUR based on the circuit court’s ruling in Paralyzed that a substantive change requires the full Veterans of America v. D.C. Arena LP, 117 F.3d 579 13 9th Circuit asks California administrative process under the APA. high court to clarify CONTINUED ON PAGE 23 ‘ambiguous’ labor laws Mendoza v. Nordstrom Inc. (9th Cir.) COMMENTARY COMMENTARY 14 DirecTV denied California workers overtime and breaks, suit says High court ruling reels Supreme Court expands Spratt v. DirecTV Enters. in 6th Circuit precedent whistleblower protection (Cal. Super. Ct.) favoring vesting Attorney Jeffrey S. Ettenger of Kaufman INDEPENDENT of retiree benefits CONTRACTORS Dolowich & Voluck discusses the U.S. 15 Arbitrator to make threshold Judith Williams-Killackey of Quarles & Supreme Court’s recent decision in decision in contractors’ Brady discusses a recent U.S. Supreme Department of Homeland Security v. $60 million employment suit MacLean and what the ruling means for Mercadante v. XE Servs. Court ruling on standards the 6th Cir- (D.D.C.) cuit used to determine that a collective future whistleblowers. bargaining agreement provides lifetime COMMENTARY health benefits for retirees and consid- 20 Delayed action on accommo- dation may create liability for ers how courts will apply the decision in constructive discharge, even future contract disputes. for joint employers SEE PAGE 3 SEE PAGE 6 41737936 TABLE OF CONTENTS Westlaw Journal Employment Published since May 1986 Administrative Rules: Perez v. Mortgage Bankers Ass’n Publisher: Mary Ellen Fox Public notice, comment unnecessary for rule interpretation changes, Supreme Court says (U.S.) ...............1 Executive Editor: Donna M. Higgins Commentary: By Judith Williams-Killackey, Esq., Quarles & Brady Managing Editor: Tricia Gorman High court ruling reels in 6th Circuit precedent favoring vesting of retiree benefits ...................................... 3 [email protected] Managing Desk Editor: Robert W. McSherry Commentary: By Jeffrey S. Ettenger, Esq., Kaufman Dolowich & Voluck Supreme Court expands whistleblower protection ..........................................................................................6 Senior Desk Editor: Jennifer McCreary Desk Editor: Sydney Pendleton Religious Discrimination: EEOC v. Abercrombie & Fitch Stores Supreme Court hears argument in Muslim woman’s discrimination suit against Abercrombie (U.S.) .........8 Graphic Designers: Nancy A. Dubin Ramona Hunter News in Brief .................................................................................................................................................... 10 Westlaw Journal Employment Age Discrimination: Prewitt v. Walgreens Co. (ISSN 2155-594X) is published biweekly by Walgreens rightly fired pharmacist for refusing to immunize, judge says (E.D. Pa.) ......................................11 Thomson Reuters. Americans with Disabilities Act: Mobley v. Miami Valley Hosp. Thomson Reuters 6th Circuit says worker not required to tie disability to job request (6th Cir.) ................................................12 175 Strafford Avenue, Suite 140 Wayne, PA 19087 Wage and Hour: Mendoza v. Nordstrom Inc. 877-595-0449 9th Circuit asks California high court to clarify ‘ambiguous’ labor laws (9th Cir.) .........................................13 Fax: 800-220-1640 www.westlaw.com Wage and Hour: Spratt v. DirecTV Enters. Customer service: 800-328-4880 DirecTV denied California workers overtime and breaks, suit says (Cal. Super. Ct.) ......................................14 For more information, or to subscribe, Independent Contractors (Arbitration): Mercadante v. XE Servs. please call 800-328-9352 or visit Arbitrator to make threshold decision in contractors’ $60 million employment suit (D.D.C.) ......................15 west.thomson.com. Wrongful Termination: Flood v. Bank of Am. Corp. For the latest news from Westlaw Journals, 1st Circuit revives bisexual worker’s claims against Bank of America (1st Cir.) ...............................................16 visit our blog at http://blog.thomsonreuters. com/westlawjournals. Toxic Exposure: Peter v. Sprinkmann Sons Corp. Ordinary repair work not covered by Wisconsin statute of repose, appeals court rules (Wis. Ct. App.) .......17 Reproduction Authorization Authorization to photocopy items for internal Insurance: Admiral Ins. Co. v. Kay Auto. Distrib. or personal use, or the internal or personal Policy exclusion bars coverage for wage, labor suit (N.D. Cal.).......................................................................18 use by specific clients, is granted by Thomson Reuters for libraries or other users regis- Insurance: W.L. Petrey Wholesale Co. v. Great Am. Ins. Co. tered with the Copyright Clearance Center Insurer had no duty to cover theft of $111,000 worth of 5-Hour Energy shots (M.D. Ala.) ............................18 (CCC) for a fee to be paid directly to the Copyright Clearance Center, 222 Rosewood Commentary: By Linda Jackson, Esq., Melanie Augustin, Esq., and Eunju Park, Esq., Drive, Danvers, MA 01923; 978-750-8400; Littler Mendelson PC www.copyright.com. Delayed action on accommodation may create liability for constructive discharge, even for joint employers ....................................................................................................................................20 How to Find Documents on Westlaw The Westlaw number of any opinion or trial Recently Filed Complaints from Westlaw Court Wire ................................................................................24 filing is listed at the bottom of each article available. The numbers are configured like Labor and Public Employment News............................................................................................................26 this: 2015 WL 000000. Sign in to Westlaw and on the “Welcome to Westlaw” page, Case and Document Index ..............................................................................................................................28 type the Westlaw number into the box at the top left that says “Find this document by citation” and click on “Go.” 2 | WESTLAW JOURNAL n EMPLOYMENT © 2015 Thomson Reuters COMMENTARY High court ruling reels in 6th Circuit precedent favoring vesting of retiree benefits By Judith Williams-Killackey, Esq. Quarles & Brady In late January the U.S. Supreme Court ruled FACTUAL BACKGROUND employees meeting age and term of service in a case addressing the principles that should qualifications were entitled to fully covered, M&G (and its predecessors) had entered apply in deciding whether retiree welfare contribution-free health care benefits. into a series of CBAs and pension, insurance benefits in a collective bargaining agreement Retirees not meeting these qualifications and service award agreements, or P&I vest so that they survive expiration of the were entitled to coverage, but with certain agreements, with the union, that included agreement. contribution requirements. descriptions of health care benefits. The The circuits had been split on the issue. P&I agreement contained the following They said that, by unilaterally modifying the The 6th U.S. Circuit Court of Appeals, in language: health care benefits and shifting a large part particular, essentially created an inference Employees who retire on or after in favor of finding such benefits vested, even Jan. 1, 1996 and who are eligible for and if a CBA was silent as to the duration of the The retirees asserted that receiving a monthly pension under the benefits.UAW v. Yard-Man Inc., 716 F.2d 1476, 1993 pension plan … whose full years of language in the collective 1479 (6th Cir. 1983), and its progeny. attained age and full years of attained bargaining agreement On Jan. 26 the Supreme Court squarely continuous service … at the time of established a vested right to addressed that inference in M&G Polymers retirement equals 95 or more points fully covered, contribution- USA