Wells Fargo & Co is firing around three dozen district managers for oversight failures related to a sales scandal that came to light in its retail banking unit in 2016, the Wall Street Journal reported on Wednesday.

By Kathleen Kapusta, J.D.

Affirming summary judgment against the ADA claims of a Steak ‘n Shake fountain operator who had been restricted to clerical or sedentary work with no lifting as a result of a prior hip replacement surgery, and who was removed from the work schedule for a safety evaluation after falling twice and then was subsequently terminated, the Eighth Circuit found he failed to show he was a qualified individual within the meaning of the Act. Despite his belief he could perform the job’s essential functions, his permanent medical restrictions barred him from performing the duties laid in the job description (Denson v. Steak ‘n Shake, Inc., December 3, 2018, Wollman, R.).

Four years before being hired by Steak n’ Shake, the employee broke his hip and underwent total hip replacement surgery. After he reached maximum medical improvement, his surgeon permanently restricted him to clerical or sedentary work with no lifting. An administrative law deemed him disabled and awarded him Social Security benefits.

Hired as fountain operator. Two years later, he was hired by Steak n’ Shake as a fountain operator, a job that required him to stand, bend, stretch, walk, and lift and carry up to 30 pounds. Although he informed Steak n’ Shake that he suffered back problems and had undergone hip replacement surgery, he stated that he could lift between 15 to 30 pounds.

Terminated. Several months later, after falling twice at work, he started physical therapy through the company’s workers’ comp program. He was subsequently examined by a doctor, who restricted him to no lifting more than 30 pounds; no kneeling, squatting, stooping, or climbing; and no walking or standing for more than 45 minutes per hour. After a second exam a month later, the doctor rescinded those restrictions and recommended that the employee remain on his original medical restrictions of clerical or sedentary work with no lifting. He was then removed from the work schedule for a safety evaluation and subsequently fired.

He thereafter sued, alleging that Steak ‘n Shake terminated him because of his disability in violation of the ADA and the district court granted summary judgment against this claim.

Not qualified. On appeal, the Eighth Circuit found he failed to show he was a qualified individual within the meaning of the ADA. Although he believed he could perform the essential job functions of the fountain operator, his permanent medical restrictions barred him from performing the duties laid out in the job description, said the court, noting it has held that “[t]he ADA does not require an employer to permit an employee to perform a job function that the employee’s physician has forbidden” and that an employee’s subjective belief that he or she can perform the essential functions of the job is irrelevant.

And while he argued that Steak ‘n Shake could have accommodated him by transferring him to the dish room, prep person, or host position at any of its restaurant in the metropolitan area, he conceded that these positions required employees to stand for long periods of time. Thus, pursuant to his medical restrictions, he could not perform the essential functions of these jobs. Because he was not a qualified individual, this claim failed as did his failure-to-accommodate claim for the same reasons.

By Pamela Wolf, J.D.

The Supreme Court has granted certiorari, vacated the appeals court judgment, and returned to the Eighth Circuit a case that challenges the constitutionality of North Dakota’s mandatory bar association laws under the First Amendment. On December 3, the High Court returned the case with instructions for further consideration in light of its June 2018 ruling in Janus v. AFSCME, which bars unions from imposing agency fees on public employees who are not union members.

Below, in Fleck v. Weltch, the Eight Circuit erroneously affirmed summary judgment against the plaintiff, an attorney who was forced to pay mandatory bar association dues in order to practice law in North Dakota, on his claim that he had a right to affirmatively consent to any non-germane bar association expenditures, according to the petition for certiorari. The attorney disagrees with the Eighth Circuit’s finding that the bar association’s dues procedure was carefully tailored to minimize the infringement of First Amendment rights, even though it requires members to subtract the non-germane portion of their dues in order to calculate the actual amount owed.

The appeals court affirmed the dismissal of the attorney’s claim based on the Supreme Court’s 1990 ruling in Keller v. State Bar of California and its 1961 ruling in Lathrop v. Donohue.

In his petition for certiorari, the attorney asked the Supreme Court to reverse the Eighth Circuit’s decision and to overrule Keller and Lathrop. The two questions presented to the Court were:

Does it violate the First Amendment for state law to presume that [the attorney] consents to subsidizing non-chargeable speech by the group he is compelled to fund (an “opt-out” rule), as opposed to an “opt-in” rule whereby [the attorney] must affirmatively consent to subsidizing such speech?
Should Keller v. State Bar of Cal., 496 U.S. 1 (1990), and Lathrop v. Donohue, 367 U.S. 820 (1961), be overruled insofar as they permit the state to force [the attorney] to join a trade association he opposes as a condition of earning a living in his chosen profession?

By Marjorie Johnson, J.D.

Two employees who were fired by a company months after it acquired their former employer were required to arbitrate their employment-related claims since they had signed enforceable mandatory arbitration agreements. In a pair of companion cases that had reached opposite results at the district court level on the company’s motion to dismiss and to compel arbitration, the First Circuit affirmed as to one and reversed and remanded as to the other, ruling that the acquiring company’s promise of continued employment was sufficient consideration under Rhode Island law (Britto v. Prospect Chartercare SJHSRI, LLC and Conduragis v. Prospect Chartercare, LLC dba Chartercare Health Partners, November 30, 2018, Thompson, O.).

Continued employment. These cases were brought in two separate district courts by medical center employees who had signed mandatory arbitration agreements with the joint venture company that had acquired their employer. The Britto plaintiff was a 54-year-old African-American employee who had worked at the medical center for decades, while the Conduragis plaintiff was hired just a few months before the acquisition. During the transition, they each received letters from the acquiring company outlining the terms for their continued at-will employment and explaining that the company could “change the terms of [their] employment, including compensation and benefits, at any time.”

Arbitration agreement. The letters also instructed them to sign an arbitration agreement that was included in one’s letter and attached via a hyperlink to an intranet site in the other’s. The agreement provided that any employment-related related claims would be subject to mandatory arbitration and that both the employee and the company were waiving their right to a trial by jury. Both employees signed their letters and arbitration agreements and retained their positions. However, things did not go well for either of them as they were both eventually fired for unrelated reasons.

Separate lawsuits. They brought separate federal lawsuits challenging their terminations. The Britto plaintiff, who was purportedly replaced by a younger, non-African-American worker, asserted violations of the ADEA, Title VII, and state ant-bias laws. The Conduragis plaintiff claimed violations of the FMLA and its state-law counterpart. The employer moved to dismiss and compel arbitration.

One court refuses to enforce the agreement. The district court hearing the Conduragis case was the first to decide the issue and denied the company’s motion. The judge ruled that the employee was not required to arbitrate his FMLA claims since the acquiring company’s promise of continued employment was insufficient consideration to establish the existence of a valid arbitration agreement. The company’s purported “mutual” agreement to arbitrate was also deemed illusory since the company retained the right to alter the employee’s terms and conditions of employment at any time.

The other court compels arbitration. Declining to follow the Conduragis court’s lead, the Britto court held that a valid and enforceable arbitration agreement existed. In addition to finding that collateral estoppel did not apply, the judge rejected the employee’s assertion that the agreement was still unenforceable for lack of legal consideration. Unlike the Conduragis court, the Britto court concluded that the arbitration agreement was separate from the offer letter, so its “reservation of rights” did not cover the arbitration and the company’s promise to arbitrate was not illusory. The court also rejected the Conduragis court’s reliance on a Rhode Island trial court’s decision and instead relied on a Rhode Island Supreme Court case, Oken v. Nat’l Chain Co., which found that continued employment can constitute sufficient consideration.

Continued employment was valid consideration. Affirming the Britto court’s order compelling arbitration, the First Circuit explained that the parties spent much time debating whether the court correctly rejected the employee’s “multistep illusory consideration claim.” He had argued that the company’s offer letter’s rights reservation, which gave it “unfettered discretion to change employment terms,” covered the arbitration agreement. Thus, because the arbitration promise was illusory, the agreement was unenforceable for lack of consideration.

However, the First Circuit found that even assuming arguendo that the offer letter and the arbitration agreement must be read together, the Britto court properly ruled that the promise of continued employment provided sufficient independent consideration to make the agreement enforceable. In so ruling, the appeals court found that the Brito court properly followed the reasoning from state’s highest court in Oken—that the continuation of employment was sufficient consideration to support the modified employer-employee agreement—and squarely rejected the Conduragis court’s reliance on a contradictory Rhode Island trial court decision.

Not unconscionable. The First Circuit also rejected the Britto plaintiff’s assertion that the agreement was unenforceable because it was procedurally unconscionable. In particular, he pointed to the company’s “procedure,” which entailed telling him to “immediately” sign key documents at the end of a five-minute meeting, without a lawyer present, and without explaining the papers’ “significance” or seeing if he understood their terms. However, he was required to also prove that the agreement was substantively unconscionable, which he failed to do.

Handbook didn’t change things. In reversing the Conduragis court’s denial of the company’s motion to compel arbitration, the First Circuit also rejected the employee’s request to supplement the record with pages from the employee handbook which he claimed “reinforced” the view that the employer retained the right to change the terms and conditions of his employment at any time, including the arbitration. Because consideration of the handbook would make no difference to the result, his motion in this regard was denied and the case was remanded with instructions for the district court to grant the company’s motion to dismiss and compel arbitration.

Small and medium enterprises (SMEs) in Japan are failing to meet disability employment rate quotas, according to a study from Japan-based recruitment and job information provider En-Japan Inc.

The study found that 60% of SMEs have not met their quotas for mandatory employment of people with disabilities.

As of April 2018, Japanese law requires private-sector firms to meet a quota of 2.2% for employees with disabilities. Prior to this, the quota was 2.0%.

En-Japan’s study, based on a poll, found that 35% of SMEs were willing to hire people with mental or physical disabilities. However, En-Japan emphasized that its survey response rate was 0.5% with the survey sent out to 85,000 companies between August and September, but only 408 companies with more than 50 employees responded.

“Smaller firms generally have few job opportunities suitable for disabled people,” En-Japan stated.

A story published earlier this year by Reuters, found that several government agencies in Japan may have been inflating figures on the number of disabled people they employ for decades in order to meet quotas. A recheck of its figures was requested and the Labour and Welfare ministry said it would announce its findings as soon as possible.

Under quotas revised this year, disabled people are expected to make up 2.5% of employees at state agencies and 2.2% in the private sector.

The unemployment rate in the Philippines rose to 5.1% in October from 5.0% a year ago, according to data from the Philippines Statistics Authority.

Meanwhile, the employment rate in the Philippines stood at 94.9%, down from 95.0% last year.

Regions with lowest employment rates were Ilocos Region (93.3%) and Calabarzón (93.4%).

The labour force participation rate in October 2018 was estimated at 60.6% compared to 62.1% last year. The labour force population consists of the employed and the unemployed 15 years old and over.

The Authority groups workers into three broad sectors: agriculture, industry and services sector.

In October 2018, workers in the services sector comprised the largest proportion of the population who are employed. These workers made up 56.8% of the total employed in October 2018, a decline from 57.0% last year. Workers in the agriculture sector comprised the second largest group making up 24.1% of the total employed in October 2018, down from 25.0%, while workers in the industry sector made up the smallest group registering 19.1% of the total employed, up from 18.0% last year.

Employers in Taiwan are planning to give slightly improved year-end bonuses than last year, reports HRM Asia, citing data from 104 Job Bank. The majority of employers, or 93%, plan to give their employees a bonus based on 1.11 month’s salary. This is slightly higher than last year’s 1.10 month’s salary bonus, however it is the second-lowest in the past five years. The slight increase is attributed to improved corporate earnings, however 104 Job Bank added that higher labour costs may have offset the earnings increase. Stanley Hua, 104 Job Bank Senior Vice President, said higher overtime pay and more days off, which are stipulated under recently implemented labour rules, have prompted employers to be less generous on bonuses.

China’s services sector grew at its quickest pace in five months in November, reports Reuters. The growth was attributed to an uptick in new orders, however the outlook for businesses over the next year worsened for the third month. The Caixin/Markit services purchasing managers’ index (PMI) rose to 53.8 in November from 50.8 in October, well above the 50.0 mark, which represents an expansion. This month’s rebound off the 13-month low in October suggests pockets of strength in domestic demand in a sector that accounts for more than half of China’s gross domestic product (GDP) and urban jobs. However, intense competition and an uncertain outlook on client demand hit business sentiment, with the confidence gauge towards the next 12 months slipping to a four-month low of 56.1. Meanwhile, Chinese firms also increased their staffing in November, but at a more gradual pace than a month earlier. The sub-index for employment was at 50.7 versus 51.1 in October. While employment in the sector has expanded for 27 months, with the exception of a slight dip in September this year, the growth has been lower than the historical average.

South Korea’s Hyundai Motor and a local government partner are aiming to sign a final deal this week on a low-cost carmaking joint venture despite stiff opposition from labor unions who fear the move would cause job losses and cut wages.

Hyundai Motor’s South Korean union will stage a four-hour strike on Thursday to protest against the automaker’s move to set up a low-cost carmaking joint venture, a union source told Reuters.