 rejected a handicap discrimination claim of two applicants for pilot jobs who alleged that they were rejected because they had corrective myopia surgery. However, this case is distinguishable on two grounds. First, the airline-defendant's pre-emption claim was based on federal aviation law, not DOT regulations at issue in this case. Second, the Colorado court found that federal aviation law pre-empted plaintiffs' handicap discrimination claims because Congress had "expressed a specific intent to pre-empt the operation of state laws of this nature." Id. at 470. No such intent to pre-empt is expressed or implied in the DOT regulations. In fact, the regulations even provide that they are "not intended to preclude States or subdivisions thereof from establishing or enforcing State or local laws relating to safety, the compliance with which would not prevent full compliance with these regulations." 49 C.F.R. § 390.9. "[T]he federal regulatory scheme governing the physical qualifications for drivers indicates an intent on the part of Congress to occupy the field of driver regulation [only] to the extent of existing regulations." Visnovec v. Yellow Freight Sys., Inc., 754 F. Supp. 142, 146 (D.Minn.1990).
In creating these regulations aimed at public safety, the DOT could not have intended to pre-empt state regulation of such important rights as the right to be protected from handicap discrimination and workers' compensation retaliation. Such important local concerns do not fall within the sphere of subject matter regulated by the DOT. The only time that a pre-emption question could possibly arise in this context is when the state statute requires conduct which prevents compliance with the DOT regulations. However, the NJLAD takes into consideration the fact that a handicap may interfere with the performance of a particular job. See N.J.S.A. 10:5-4.1. Thus, New Jersey law permits an employer to refuse to employ or accommodate an employee when such decision is based on objective standards, such as the Federal Motor Carrier Safety Regulations, when supported by factual evidence. See N.J.A.C. 13:13-2.8(a) (1). Consequently, operation of the NJLAD does not conflict with the DOT regulations and, therefore, plaintiff's handicap discrimination claim is not pre-empted by this federal regulatory scheme.
Defendant further offers Carolina Freight Carriers v. Commonwealth of Pennsylvania, Pennsylvania Human Relations Comm'n, 99 Pa.Cmwlth. 428, 513 A.2d 579 (1986), appeal denied, 514 Pa. 620, 521 A.2d 934 (1987) in support of its pre-emption argument. In Carolina Freight, an employer rejected two applicants for the position of truck driver because the applicants, when examined, failed to meet the physical qualifications under the DOT regulations. Carolina Freight, 513 A.2d at 580-81. The applicants filed complaints with the Pennsylvania Human Relations Commission alleging handicap discrimination. The Commission found for the applicants and directed the employer to hire the applicants into the next available positions. Id. at 581. On appeal, the Commonwealth Court of Pennsylvania reversed the Commission's order and held that federal law pre-empted the order because compliance with the order would be impossible without also violating the DOT regulations. Id. at 583-84.
For the reasons set forth above, defendant's summary judgment motion is denied and the case is remanded to state court.
[1] New Penn maintained two separate seniority lists, one for dock workers and city drivers, the other for road drivers. Plaintiff did not ask that his seniority on the dock workers-city drivers list be transferred to the road drivers seniority list.
[2] This rule promotes the central tenet of federal labor-contract law that the arbitrator, not the court, should be responsible for interpreting the collective bargaining agreement. Lueck, 471 U.S. at 220, 105 S. Ct. at 1915-16.
[3] If the employer defends by arguing that it reasonably determined that plaintiff's handicap precluded him from performing his job, the burden of proof shifts to the employer once the employee establishes his prima facie case. Jansen, 110 N.J. at 383, 541 A.2d 682.
[4] Defendant offers Davis v. Johnson Controls, Inc., 21 F.3d 866 (8th Cir.1994) in support of its proposition that resolution of plaintiff's discrimination claim will involve the interpretation of the collective bargaining agreement and must, for this reason, be pre-empted by federal labor law. However, defendant fails to notice an important factor which distinguishes Davis from the present case. Davis relied on the Missouri Code of State Regulations which provides that in determining the reasonableness of an accommodation of a handicapped employee, a factor to be considered is whether the terms of the collective bargaining agreement authorize the employer to make such an accommodation. Id. at 868. The NJLAD and the New Jersey Administrative Code contain no comparable provision. In fact, the New Jersey Administrative Code provides that "[r]egulations promulgated pursuant to the Law Against Discrimination shall supersede any inconsistent term of a collective bargaining agreement." N.J.A.C. 13:13-2.6(d). Consequently, Davis is not controlling in the present case.
[5] This Court has given serious consideration to defendant's contention that plaintiff's discrimination claim is pre-empted by § 301 to the extent it is based on New Penn's refusal to transfer him to the road driver seniority list. Although defendant argues that transfer between the company's seniority lists is governed by the provisions of the collective bargaining agreement, defendant has failed to produce the pertinent provisions for the court's review. Finding the record lacking of any hard evidence on this issue, and viewing all doubt in favor of the non-moving party, the Court finds that plaintiff's discrimination claim is not pre-empted by § 301 of the LMRA. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir.1983), cert. denied, 465 U.S. 1091, 104 S. Ct. 2144, 79 L. Ed. 2d 910 (1984); Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir. 1972).
[6] There is sufficient evidence to support an inference that plaintiff reasonably believed that New Penn would direct him to undergo a recertification exam once he obtained his work release. Since New Penn had followed such procedure after plaintiff's first injury, plaintiff was justified in believing that a similar practice would be followed again. There exists a question of fact as to whether or not defendant had an established practice of retesting injured employees for DOT qualifications once they obtained a doctor's permission to return to work.
[7] Since defendant cannot show that plaintiff violated the DOT qualification requirements, the DOT regulations do not pre-empt the resolution of plaintiff's state law claims. This is very different from the circumstances in Carolina Freight where the court overruled a determination that defendant violated the state anti-discrimination law even though the job applicants in that case failed to meet the DOT requirements.
[8] Because this Court lacks subject matter jurisdiction to entertain this case, the remaining arguments that defendant raises in its motion for summary judgment will not be addressed.In its latest hiring bout, over the last month Apple has sought more than a dozen new hires specifically for AR and VR roles. Among them, the company is looking for a Computational Display Engineering Manager for incubating advanced display technologies for use with upcoming Apple products.
Apple continues to hire and acquire talent and companies to further its expertise in AR and VR, with the company being rumored to launch a headset in 2021 or 2022. With its latest acquisition in the space rumored to be NextVR, the company is also continuing to compete against the likes of Facebook over the pool of top tier AR and VR engineering and development talent.
Over the last month Apple has posted at least 14 new job openings directly pertaining to those with AR and VR expertise. The range of roles—from consumer-facing to deep research & development—makes it hard to gauge how far along Apple might be with its first headset.
One of the postings shows that even if the company is planning to ship something soon, it’s continuing to invest in R&D for the future. Apple is seeking a ‘Computational Display Engineering Manager‘ to investigate new display technology for AR and VR:
Apple is looking for an elite engineering manager that can help identify and incubate new display technologies in the areas of AR, VR, and computational displays. A successful candidate will not only need to develop new technologies, but also lead a world class team of display experts and educate a broad audience of people at Apple about the technologies benefits and tradeoffs. […]
This position is passionate about the prototyping, development, and product execution of both full displays systems and algorithms for AR/VR applications. The extended team features a diverse engineering roster of experts in optics, human perception, product design, and experimental physics.
‘Computational displays’ typically refers to display technologies which are more dynamic and responsive to viewers, enhancing the perceptual output through the use of real-time processes. An eye-tracked display with foveated rendering, for instance, or one which does real-time frame warping in the display itself, could be considered computational displays.
It will take these sorts of computational display techniques to reach the ultimate goal of any AR or VR headset, which is to match both the acuity and field of view of the human eye.
Another of the Apple job listings is for a ‘Software Engineer, 3D Applications (AR/VR)‘, which clearly indicates that the company is embracing the nature of real-time AR and VR content, but also appreciates that the field is so new