Essay: American Meat Packing Corp., 362F.3d

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[. . .] , at 611.


9. FLSA with regard to documenting compensable time

Problems arise when employers determine not to count, or fail to recognize and count, certain hours worked as compensable hours. The workplace is replete with work situations that are not tidy with regard to actual time working or time at a desk or workstation. Employers and employees are frequently at odds over these times with mixed motivation. It is relatively common for employees to file a class action suit when employer practices seem designed to take advantage of employees' vulnerabilities in order to save money or restrict provision of benefits. It is important for employee manuals and policies to clearly describe required documentation regarding these gray areas of employment. While employers may regard ambiguity as the better recourse, the courts are not finding this to be true.

10. Degruise v. Sprint Corp., 279 F.3rd 333 (5th Cir. 2002)

Degruise did not receive his notification of COBRA coverage that required a response from him in order to be activated. Sprint made a "good faith" attempt to deliver the COBRA letter of notice to its former employee, and under the law, is not required to follow-up on undeliverable letters of COBRA notice. The fact that the letter was sent by certified mail and a signature could not be obtained does not alter the COBRA notice obligations of Sprint. See Lawrence v. Jackson Mack Sales, Inc., 837 F.Supp. 771, 782 (S.D.Miss.1992), ("Methods of notification which are reasonably calculated to reach the employee or beneficiary are considered to conform to the standard of good faith compliance with the statute."), aff'd 42 F.3d 642 (5th Cir.1994); Myers v. King's Daughters Clinic, 912 F.Supp. 233, 236 (W.D.Tex.1996) (same), aff'd 96 F.3d 1445 (5th Cir.1996); see also Bryant v. Food Lion, Inc., 100 F.Supp.2d 346, 367 (D.S.C. 2000) (same), aff'd 2001 WL 434566 (4th Cir. Apr. 30, 2001); Keegan v. Bloomingdale's, Inc., 992 F.Supp. 974, 977 (N.D.Ill.1998) ("[T]he issue is not whether the former employee actually received notice; the issue is whether the plan administrator 'caused the notice to be sent in a good faith manner reasonably calculated' to reach the former employee." (quoting Jachim v. KUTV, Inc., 783 F.Supp. 1328, 1333-34 (D.Utah 1992))); Marsaglia v. L. Beinhauer & Son, Co., 987 F.Supp. 425, 432 (W.D.Pa.1997). Sprint did lawfully fulfill its obligations to provide COBRA notice, and the use of certified mail is not

11. Gambini v. Total Renal Care, 486 F.3d 1087 (9th Cir. 2007) (as amended)

Employees are not granted absolute protection under ADA from adverse employment actions that are based on disability-related conduct. Under the ADA, an employee with disabilities must be able to "perform the essential functions of the employment position that such individual holds or desires" (42 U.S.C. § 12111(8)). Washington Law has a similar provision that discrimination is not said to occur "if the particular disability prevents the proper performance of the particular worker involved" (Wash. Rev.Code § 49.60.180(1)). An employer is able to raise a "business necessity" or "direct threat" defense against the discrimination claim (see 42 U.S.C. § 12113(a)-(b)) if an employee with disabilities is not able to perform the duties and responsibilities of the job because of disability-related conduct. An employer may argue that the proposed reasonable accommodation poses an undue burden (see id. § 12111(10)).

The trial court argued that Gambini was entitled to be reinstated to her position following her FLMA leave, but that the reinstatement did not protect her to from further discipline or termination for conduct that violated DaVita's employee policies. Further, Instruction 27 to the Jury stated that, "An employer cannot fire an employee for poor job performance if the poor job performance was due to a mental disability and reasonable accommodation plausibly would have rectified the performance problem."

12. Introduction of Collective Bargaining

National Labor Relations Board

An independent federal agency vested with the power to safeguard employees' rights to organize

Aids employees in to determine whether to have unions as their bargaining representative

Acts to prevent and remedy unfair labor practices committed by private sector employers and unions.


A voluntary federation of 55 national and international labor unions

Created in 1955 by the merger of the AFL and the CIO

Represents 12.2 million members, including 3.2 million members in Working America, its community affiliate

Membership includes teachers and miners, firefighters and farm workers, bakers and engineers, pilots and public employees, doctors and nurses, painters and plumbers -- and more

Legal Information Institute

Wex is a free legal dictionary and encyclopedia sponsored and hosted by the Legal Information Institute at the Cornell Law School. Wex entries are collaboratively created and edited by legal experts. More information about Wex can be found in the Wex FAQ

American Rights at Work

Since 2003, American Rights at Work has informed the American public about the struggle to win workplace democracy for nurses, cooks, computer programmers, retail cashiers, and a variety of workers who we all depend on every day. Our vision is a nation where the freedom of workers to organize unions and bargain collectively with employers is guaranteed and promoted.

Through coalition-building, research, public relations, policy analysis, and advocacy, we:

Investigate and expose workers' rights abuses and the inadequacy of U.S. labor law.

Stimulate debate about the state of workers' rights among journalists, policymakers, advocacy groups, and the public.

Promote public policy that protects workers from hostile employers and weak laws that impede their rights to form unions and collectively bargain.

Publicize success stories of profitable companies and public agencies that respect workers' rights and build innovative partnerships with unions.

13. Legal issues with global performance ratings.

Global performance management practices explicitly cover several main areas of performance, including: performance criteria, timing of assessments, the credentials of assessors, the nature and form of feedback, and the provisions for appeal or reconsiderations of evaluations and decisions. There can be substantive gaps between the standardized assessments which have a global orientation and the localized practices of the firm. Metrics are integrally related to most control processes, systems, strategic plans, corporate values and assumptions. It is impossible to address all of this complexity in the general case and then sufficiently reference it to the specific case. Employers who rely on global performance assessments leave themselves open to litigation related to disparate treatment, discrimination, and to otherwise establishing a work environment that generates low employee morale.

14. Greenawalt v. Indiana Department of Corrections 397 F.3d 587 [7th Cir. 2005]

There does not seem to be any reasonable relationship between the research assistant's job and the administration of a psychological examination. The practice seems intrusive in the least, and a violation of privacy rights. The Supreme Court has previously suggested that if the goal is "obtain testimonial rather than physical evidence, the relevant constitutional amendment is not the Fourth but the Fifth." In Schmerber, the Court argued that lie detector tests are difficult to categorize as testimonial evidence or real evidence. Compelling a person to submit to this testing evokes "the spirit and history of the Fifth Amendment." The plaintiff can take her suit to the state courts, wherein privacy can be protected beyond the Fourth Amendment statutes. Indiana has not recognized this particular type of tort law of privacy however, Felsher v. University of Evansville, 755 N.E.2d 589, 593 (Ind.2001). "But the Fourth Amendment does not expand accordion-like to fill what may be a gap in the privacy law of a particular state." Some state courts have found that requiring a public employee to take a lie-detector test without good cause is an invasion of privacy. Texas State Employees Union v. Texas Dept. Of Mental Health & Mental Retardation, 746 S.W.2d 203, 206 (Tex.1987); Long Beach City Employees Ass'n v. City of Long Beach, 41 Cal.3d 937, 227 Cal.Rptr. 90, 719 P.2d 660, 666 (Cal.1986)."

15. Four categories of legal protections against wrongful discharge.


Under law governing wrongful discharge that violates the Constitution, an employee must show that his employer fired him for a reason that violates a provision of the Constitution, the First amendment, Fifth Amendment, or Fourteenth Amendment.


Under law governing wrongful discharge that violates statutes, an employee must show that his employer fired him for a reason that violates a fundamental policy expressed in the state statutes, or violates a public policy, such as those under specific acts (ADA, ADEA, NLRA, FMLA, OSHA, ERISA, USERRA, off-duty conduct laws, civil service and tenure laws, or whistleblower protection laws. Damages for emotional distress and punitive damages can be recovered.

Common Law -- Contract

Under common law governing wrongful discharge related to an employment contract, the employee must show that the employer, either expressly or implicitly, included a promise that he would not be fired without cause. An employee bringing suit under contract law can only recover compensation for actual economic losses, like wages lost due to the termination.

Common Law - Tort

Under common… [END OF PREVIEW]

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American Meat Packing Corp., 362F.3d.  (2011, May 7).  Retrieved June 19, 2019, from

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"American Meat Packing Corp., 362F.3d."  7 May 2011.  Web.  19 June 2019. <>.

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"American Meat Packing Corp., 362F.3d."  May 7, 2011.  Accessed June 19, 2019.