Labor & Employment: Representative Engagements

WAGE & HOUR LITIGATION

  • Defeated class certification. Defeated a plaintiff's motion for class certification in California state court by convincing the court that the named plaintiff was not an adequate class representative.  The plaintiff was discharged from the company when he tested positive on a random U.S. Department of Transportation drug test.  In a separate action, the plaintiff challenged his dismissal alleging negligence, breach of implied contract, wrongful termination, defamation and unfair business practices. Our employment lawyers won summary judgment in that matter by, among other things, demonstrating the validity of the positive drug test result. Polanco v. Brink's, Inc. (L.A. Superior Court, Complex Division, 2012). 
  • Defeated class certification. Defeated another California state-wide certification motion in a claim to compensate more than 3,500 hourly employees for time spent on the premises prior to the employees' scheduled start time. The judge agreed with our argument that there was a predominance of individual issues over common issues, thereby precluding class certification. Angel Rodriguez II v. Brink's, Inc. (L.A. Superior Court, Complex Division, 2012). 
  • Federal jury victory. Won a jury trial in federal court in Dallas. The case was brought as a collective action under the Fair Labor Standards Act (FLSA) by seven former employees who claimed their position was misclassified as exempt from overtime pay requirements of the FLSA. A putative class of more than 200 was conditionally certified with over 30 of those individuals opting in as plaintiffs. As a result of successful motions by our team, the class was whittled down to fourteen people by the time of trial. This was a "bet-the-company"case, as the client's business model depends on the position being treated as a salaried, exempt job. Langer v. DeWolff Boberg & Associates Inc. (N.D. Texas, 2011). 
  • Major nationwide wage and hour collective action victory. Won a major victory in a nationwide wage and hour collective action when the court decertified the case. At the time, there were nearly 4,200 opt-in plaintiffs who worked at retail mobile phone stores across the country. The court's ruling should be precedent-setting in the new technological age of Blackberries and iPhones that allow employees to be accessible 24 hours a day, seven days a week. The case involved employees who claimed that they had worked several hours "off-the-clock"each week (including reading and responding to emails and text messages from co-workers, supervisors, and customers), worked through lunch breaks, opened and closed the stores before and after regular work hours, and conducted other customer service activities outside of the store. Zivali v. AT&T (S.D.N.Y., 2011). 
  • Putative wage and hour class action win. Won an early victory for a large retail client in a putative wage and hour class action in California when the judge agreed that plaintiff's motion for class certification was time barred under Local Rule 23-3, and plaintiff was unable to demonstrate relief from the rule was warranted. Earlier, Crowell attorneys fought off several challenges to the removal of the case from Los Angeles County Superior Court, which proved to be instrumental in the ultimate result. Lee v. AT&T Mobility (C.D. Cal., 2011). 
  • Favorable wage and hour class action settlement. Secured a favorable settlement for a national retailer in California federal court in a putative wage and hour class action after the named plaintiff's credibility was undermined during deposition. Aguiar v. AT&T Mobility (C.D. Cal. 2010). 
  • Dismissal of class action alleging meal, rest break, and overtime pay violations. Secured full dismissal of a putative class action by call center employees alleging meal and rest break violations and failure to pay overtime within weeks of suit being filed. Arthur v. AT&T Mobility (Cal. Superior Court, L.A. County, 2010). 
  • FLSA collective action saving client millions of dollars. Saved our client millions of dollars in unpaid overtime compensation by securing summary judgment in favor of our client in a FLSA collective action by convincing the federal district court that the Motor Carrier Act exempted the employees from federal overtime compensation requirements. Geronimo Hernandez v. Brink's, Inc. (S.D. Fla., 2009). 

TRADITIONAL LABOR

  • Defense against unfair labor practice charges. Represented Honeywell in connection with sixteen-month lockout of United Steelworkers (USW) represented employees at Metropolis, Illinois facility. Successfully defended client against unfair labor practice charge and request for Section 10(j) injunctive relief at National Labor Relations Board (NLRB) and assisted in obtaining state court temporary restraining order (TRO) and preliminary injunction as to USW picketing activities and other activities related to work stoppage. (2010-2011).
  • Defense against Section 8(a)(5) allegations. Successfully defended Honeywell in response to unfair labor practice charges filed by the USW during contract bargaining at Mansfield, Texas location. USW alleged the company violated Section 8(a)(5) by implementing its last, best and final offer, including changes to the company's health and welfare benefit offerings, before reaching impasse.  The Regional office of the NLRB dismissed the charges against Honeywell. (2012).
  • Obtained right to change benefit plans. Successfully represented DuPont in case before Arbitrator Roger Kaplan regarding the company's right to make changes to various benefit plans at USW-represented site, including curtailing defined benefit plan and eliminating retiree health benefits. Award confirms DuPont's right to make changes unilaterally. (2012).
  • Defense against unfair labor practice charges. Obtained dismissal of unfair labor practice charges filed against Honeywell arising from its investigation of potential employee sabotage at its Metropolis, Illinois facility. Defeated USW claims that confidentiality instruction provided to bargaining unit employees at outset of interviews and other conduct violated the National Labor Relations Act (NLRA). (2012).
  • Staying union-free. Continued the successful streak (29 years) of keeping a transportation industry client union-free by challenging union elections. (1983-2012).
  • Termination of employment violations. Successfully represented Honeywell in connection with two arbitrations challenging termination of employment for violations of company rules at Richmond-area facility and Missouri facility. In both cases, the arbitrator denied the union's grievance. (2009-2010).
  • Alleged violation of subcontracting clauses. Obtained arbitrator awards denying union grievances against Honeywell alleging that staffing decisions and elimination of a bargaining unit position at Richmond-area facilities violated subcontracting clauses. In each case, the arbitrator ruled that the company had acted in accordance with the parties' management rights clause, and not in violation of the parties' subcontracting clause. (2009-2012).
  • Appellate Court Reversal of NLRB decision. Convinced the Court of Appeals for the District of Columbia Circuit to reverse the NLRB's decision that our client had violated the NLRA by implementing after impasse the management rights provision, because it reserved to our client the discretion to change terms and conditions of employment. If the NLRB's decision had been left standing it would have dramatically altered the landscape of federal labor law in favor of unions. Mail Contractors of America v. NLRB (D.C. Court of Appeals, 2008). 

AFFIRMATIVE ACTION, OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS (OFCCP), and CLASS ACTION PREPAREDNESS

  • Represented NY-based employer in OFCCP audit. Audit closed with finding of no violations. (2012).
  • Represented public and private institutions of higher education in OFCCP audits, resulting in favorable Conciliation Agreements, without any monetary remedies. (2011-2012).
  • Represented Washington, D.C.-based hospital in OFCCP audit of personnel activity, compensation, and affirmative action efforts. OFCCP closed audit with finding of no violations.  (2011).
  • Represented parent company of subsidiary that held government contracts, in connection with OFCCP assertion of jurisdiction over parent company. Convinced OFCCP that the parent company was sufficiently distinct from the subsidiary that OFCCP's jurisdiction did not extent to parent company. (2011).
  • Represented dozens of federal contractors and subcontractors in OFCCP audits of compliance with affirmative action obligations. While some of those audits have resulted in Conciliation Agreements, none has included any monetary remedy of any sort. (1995-present).
  • Represent U.S. Chamber of Commerce for purposes of preparing and submitting comments to proposed regulatory initiatives of the OFCCP. (1996-present).
  • Work with labor economists to conduct, on regular basis, statistical analyses of compensation and personnel activities of Fortune 100 companies to identify and remedy any statistically-significant disparities in compensation, performance ratings, promotions, bonuses, stock awards, and merit increases. (Annually and ongoing.).

SELECT SINGLE PLAINTIFF LITIGATION

  • Dismissal race discrimination and retaliation case. Achieved dismissal of this race discrimination and retaliation case on behalf of numerous defendants in which Plaintiff demanded three million dollars in damages arising from his discharge from employment. The Complaint stated claims under six separate state and city statutes. In the course of lengthy discovery, the team was also successful in opposing three discovery motions to compel and one motion to amend the complaint. Reyes v. Brink's, Incorporated, et al. (Supreme Court of the State of New York, County of Queens, 2012). 
  • Wrongful termination and discrimination case. Successfully settled a wrongful termination and discrimination case for a nominal amount following our motion for summary judgment. The plaintiff's initial demand was in the six figures and it settled for $5,000. (Los Angeles County Superior Court, 2010).
  • Sexual harassment, retaliation and constructive discharge allegations. Motion for summary judgment granted in former employee's lawsuit alleging sexual harassment, retaliation and constructive discharge. Bridget Boyd v. Brink's, Inc. (S.D. Tenn., 2011). 
  • Allegations in relation to discharge. Three plaintiffs abandoned their claims of breach of implied conduct, intentional infliction of emotional distress and race discrimination in relation to discharge, following only one deposition, and upon the filing of counter-claims against each plaintiff and notice of a motion to dismiss and for sanctions to be filed on behalf of defendants. Brian Holbrook, et al. v. Brink's, Inc. (N.D. Ohio, 2010). 
  • Dismissal of single plaintiff discrimination claim. Secured dismissal without prejudice for improper venue, without discovery, in a single plaintiff discrimination claim under the ADA. Joy L. Young v. AT&T (Md. Dist. Ct., 2010). 
  • Title VII and retaliation allegations. Won summary judgment on claims of former employee of Western Union who alleged violations of Title VII, including retaliation claims. Court found claims were barred based on application of principles of comity and res judicata, where plaintiff had previously pursued claims in Austria. Carter v. Western Union (D. Colo. 2009).
  • Discrimination and retaliation claim. Obtained summary judgment for client on race discrimination and retaliation claim, and the U.S. Court of Appeals for the Second Circuit dismissed the appeal. Ricky Griffin v. TNT USA Inc. (2d Cir. 2009).   

TRADE SECRETS

  • Employee secret pursuit of a patent application. Represent plaintiff in trade secret action in Ohio state court involving magnetic pulse welding technology. Defendant secretly pursued a patent application while employed by Dana, threatening to disclose Dana's trade secrets.  The case is expected to go to trial in early 2013. Dana Limited v. Yablochnikov (Lucas Cty, Ohio).
  • Computer Fraud and Abuse Act violations. Represented a national health care insurance company in seeking injunctive relief against a former employee who left the company with a large volume of proprietary information, including government contract bids, cost analyses, and client correspondence. We based our complaint on violations of trade secrets laws and the Computer Fraud and Abuse Act. Obtained favorable settlement. Health Net Federal Services v. James Rosengren (Circuit Court for Wayne County, Michigan, 2007). 
  • Raiding key technology executives and employees. Represented a start up competitor to a multi-billion dollar international conglomerate accused of raiding key technology executives and employees in a misappropriation of trade secrets case. Successfully challenged jurisdiction, venue and the convenience of the forum, and won a transfer of the case after four-day evidentiary hearing. Cabot Corp. v. Niotan, Inc. (D. Nev.).   
  • Solicitation of key employees. Successfully settled a suit accusing a former employee of misappropriating trade secrets and solicitation of key employees to form a competitive start-up company. Skyworks Solutions, Inc. v. Freescale Semiconductor, et al. (Tenn. Cir. Ct.). 
  • Settled breach of covenant not to compete favorably for plaintiff client after agreements were ruled enforceable and injunction was issued. Guidant Technologies (Fairfax County Circuit Court, MD, 2008). 

WHISTLEBLOWER

  • Section 301 preemption. Won summary judgment on the grounds of Section 301 preemption after removing a union-represented coal miner's state law challenge to his discharge for allegedly making safety complaints. Howard v. Cumberland River Coal Co. (E.D. Ky. 2011). 
  • Whistleblower retaliation. Won dismissal of a whistleblower retaliation case, because of plaintiff's failure to exhaust internal administrative remedies under Sarbanes-Oxley. Groncki v. AT&T (D.D.C., 2009).