Nevada Complex Litigation

Unpaid Overtime Prompts Lawsuit Against Nevada Construction Employer

Fourteen current and former employees filed suit against Building Materials Holding Corp.in Federal Court yesterday alleging numerous violations of wage and employment laws.  Seeking class action status, the complaint alleges that employees were routinely asked and/or coerced into signing blank timesheets, travel between job sites without pay and were routinely paid for little or none of the overtime worked.

Building Materials Holding Corp. reported $2.3 billion in revenue in 2007 and states on its website that it is "one of the largest providers of building materials and residential construction services in the United States."

One of its subsidiaries named in the lawsuit, SelectBuild Construction, provides residential construction services in Nevada, California and Arizona.

Complaints by the workers were first made to the Laborers' International Union of North America (LiUNA), which had been trying to organize SelectBuild's workers.  LiUNA is not a party to this lawsuit.

Building Materials Holding Corp., based in San Francisco, said in a statement "BMHC and SelectBuild fully comply with federal and state wage practices and believe this suit is without merit," the statement said. "We intend to defend against it vigorously."

BMHC’s statement continued, "This appears to be part of an ongoing union campaign to force the company to recognize it as the bargaining agent for employees.”

If class action status is granted, there will likely be hundreds more plaintiffs added to the lawsuit. Nevada employers should take note of this lawsuit.  If your hourly employees are working overtime, pay overtime wages.

EEOC Issues Q&A Guide to Performance and Conduct Under the ADA

This month the U.S. Equal Employment Opportunity Commission released a comprehensive document designed to reduce confusion related to the performance and conduct of employees protected by the Americans with Disabilities Act.

Employers will be pleased to see that this document clearly answers many ADA related performance and conduct questions.  The document includes 30 questions with answers using 48 examples of actual cases, documented by 90 footnotes.

For your convenience, you will find the Table of Contents below, including direct links to each section.    You will find the entire document HERE.  As always, if you have questions related to employment lawsuits, feel free to contact me.

TABLE OF CONTENTS

    I.     Introduction

    II.    Basic Legal Requirements

    III.   Application of ADA Legal Requirements to Performance and Conduct Standards

        A. Performance standards

        B. Conduct standards

        C. Questions pertaining to both performance and conduct issues

        D. Seeking medical information when there are performance or conduct problems

        E. Attendance issues

        F. Dress codes

        G. Alcoholism and illegal use of drugs

        H. Confidentiality issues arising from granting reasonable accommodation....

        I. Legal enforcement

In case you missed the latest EEOC religious discrimination guidelines, you can read about them HERE.

BLM Whistleblower Wins Lawsuit Over Mismanagement of Nevada Toxic Mine Cleanup

Earle Dixon was hired by the US Bureau of Land Management in October 2005 to oversee the cleanup of the Anaconda Mine in Yerington Nevada.  His employment included a 1 year probationary period. 

On September 9, 2004 Dixon’s immediate supervisor certified that Dixon’s performance, conduct and general traits of character had been satisfactory and recommended Dixon be retained beyond the probationary period.

In October 2006, one week before the end of his probationary period, Dixon was fired.
  
Dixon filed a whistleblower lawsuit.  The complaint outlined violations of numerous federal laws including the Safe Drinking Water Act, the Clean Air Act, Superfund, the Toxic Substances Control Act and the Occupational Health and Safety Act.
 
The complaint also outlines a number of problems which were not addressed by his superiors because they would drive up remediation costs and cause political problems.

In September 2006 an administrative law judge ruled that the U.S. Bureau of Land Management illegally fired Dixon for speaking out about the health and safety dangers at the toxic Anaconda Mine site.  The judge ordered the BLM to pay Earle Dixon two years worth of back pay and benefits totaling over $120,000.

The BLM appealed the decision to the U.S. Labor Department's Administrative Review Board.  The Board upheld the decision.  The board also upheld the judge's order for the BLM to reimburse Dixon for $10,000 in moving expenses after he was fired in October 2005 as well as attorney fees and costs expected to exceed $50,000.  The final ruling may be viewed HERE.

The review board determined that the BLM fired Dixon because he "raised concerns that the contamination at the Yerington site was much greater than previously documented," and "refused to back down from his conclusions about worker health and safety issues."

Dixon had requested punitive damages of up to $1 million.  The board rejected that request stating "Nothing in this record would support an award of any amount of punitive damages…”

US Court of Appeals Upholds Employment Contract Despite Language Barrier

After being terminated by Sun Constructors (Sun) in 2006, Juan Morales filed a wrongful termination lawsuit.  Sun claimed that Morales was bound by an arbitration clause in the employment agreement signed upon his employment.  Morales claimed that since the agreement was in English, he did not understand its terms when he signed it, thus he could not be bound by it since he does not speak or understand English.  The District Court agreed with Morales.  Sun appealed.

According to the opinionwritten by Judge Michael A. Chagares of the US Court of Appeals Third Circuit, when Morales was hired in  2004 he passed a written exam in English and attended a 2 ½ hour orientation which explained the employment agreement.  Sun provided a bilingual employee to translate for Morales during the orientation.  The bilingual employee testified that he did not specifically explain the arbitration clause to Morales.

Judge Chagares ruled in favor of Sun, and remanded the case back to District Court with instructions to enter a stay pending arbitration.  In his opinion, Judge Chagares cited an 1875 US Supreme Court decision, Upton v. Tribilcock that said: "It will not do for a man to enter into a contract, and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained."

Judge Chagares continued “Morales, in essence, requests that this Court create an exception to the objective theory of contract formation where a party is ignorant of the language in which a contract is written. We decline to do so. In the absence of fraud, the fact that an offeree cannot read, write, speak, or understand the English language is immaterial to whether an English-language agreement the offeree executes is enforceable.”