In Milman v. Fieger & Fieger, LLC, the Sixth Circuit held that a equest for FMLA leave is protected even if the employee is not entitled to FMLA leave much less takes FMLA leave. There the plaintiff claimed she’d been retaliated against for requesting FMLA leave, and her employer responded that she had not been entitled to FMLA leave and had not actually taken FMLA leave. The Sixth Circuit rejected the company’s arguments, holding that her mere request was itself protected against retaliation.
Thus, the scope of protected activity under the FMLA starts with the first step contemplated under the Act’s procedures: a request made to the employer. That request, moreover, need not lead to entitlement in order to be protected.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2023-02-28 13:17:592023-02-28 13:17:59Sixth Circuit holds that request for FMLA leave is protected even if the employee is not entitled to FMLA leave much less takes FMLA leave
Employers are prohibited from retaliating against employees who exercise their rights under federal wage law (FLSA). But what if the employee hasn’t yet, maybe is about to? In Uronis v. Cabot Oil & Gas Corp., the Third Circuit held FLSA prohibits retaliation “where an employer anticipates an employee will soon file a consent to join an FLSA collective action (or is “about to testify”) — (even if) no such ‘testimony’ has yet occurred or been scheduled or subpoenaed.” In so holding, the Third Circuit rejected the argument that the person must have at least taken “overt act” under FLSA.
Uronis adequately pleaded that Appellees had fair notice that he engaged in protected activity. Taking Uronis’ allegations as true, Appellees explicitly declined to hire him “because of” the (collective action lawsuit under FLSA). … Based on his allegations, it is plausible that Appellees discriminated against Uronis based on their anticipation that he would file a consent to join the collective action, or otherwise give relevant testimony. Retaliating against an employee based on such a perception violates Section 15(a)(3) (of FLSA).
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2023-02-23 16:23:132023-02-23 16:23:13Third Circuit adopts “about to” test for gauging protected activity under FLSA
In Canada v. Samuel Grossi & Sons, Inc., Third Circuit held that an employer’s decision to conduct an investigation can be used as evidence of pretext even if the investigation later produces credible evidence of a violation warranting discharge. In the case, the company asserted that it had terminated an employee after a search of his phone confirmed he’d been soliciting sex workers during working hours. The employee asserted that the company had looked at his phone only in retaliation when he requested FMLA; he also asserted other claims including FMLA interference, disability-related claims and racial discrimination.
For the reasons we have already explained, we reject a rule that incentivizes employers to dig up reasons to fire an employee who has engaged in protected activity, and then immunizes them from suit based upon a subsequent fortuitous discovery of grounds for termination.
Here, as in Hobgood, there is a “ ‘convincing mosaic’ of circumstantial evidence,”63 which, when taken as a whole and viewed in a light favorable to Canada’s case, could convince a reasonable jury that he was the victim of unlawful retaliation.64 In other words, the evidence could support a finding that the search itself was retaliatory.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2023-02-23 16:13:192023-02-23 16:13:19Third Circuit holds that an employer’s decision to conduct an investigation can be used as evidence of pretext even if the investigation produces credible evidence of a violation warranting discharge
On September 29, 2022, the CDLE issued four sets of proposed Rules and accompanying explanatory Statements.
Proposed revisions to 7 CCR 1103-14, which are the rules implementing the CDLE’s PAY CALC Order, which sets the minimum wage rates in Colorado. The new rules would increase
the minimum hourly rate to $13.65 from $12.56,
the minimum hourly rate with tip credit to $10.63 from $9.54,
the minimum guaranteed weekly salary for executive, administrative and professional exempt employees to $961.54 from $865.38, and
the minimum guaranteed annual salary for highly compensated exempt employees to $112,500 from $102,250.
Proposed revisions to 7 CCR 1103-11 to implement this year’s new law SB 22-097, which expanded whistleblower protections to prohibit retaliation for the expression of any “reasonable concerns about workplace violations of governmental health or safety rules, or otherwise significant workplace health or safety threats,” without a requirement any longer to prove the concerns were “related to a public health emergency.”
Proposed revisions to 7 CCR 1103-7, which implements increases including under this year’s new law SB 22-161 to penalties, attorney fees, claim and appeal processes, under the laws overseen by the CDLE in the Colorado Wage Act (CWA).
Proposed revisions to 7 CCR 1103-6, which vest authority in the CDLE to issue, and oversee enforcement of, prevailing wage determinations on certain public projects under the Colorado Prevailing Wage Act (PWA) and the Keep Jobs in Colorado Act (KJICA).
The CDLE invites comments and has schedule rulemaking deadlines, including public hearings, on its website.
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In Parker v. United AirLines, Inc., the Tenth Circuit rejected the plaintiff’s Cat’s Paw argument holding that the review of her termination by an independent decisionmaker broke any causal link on her claim of retaliation.
Retaliation entails a causal link between an employee’s use of FMLA leave and the firing. That causal link is broken when an independent decisionmaker conducts her own investigation and decides to fire the employee.
The plaintiff, who had been on FMLA, argued that her use of FMLA leave “sparked retaliation from her supervisor” who, when the opportunity allegedly presented itself, recommended her discharge and continued to do so even when she appealed her decision to a higher level of management. She argued that her supervisor’s alleged contributions to the process constituted proof in her favor under the so-called Cat’s Paw theory. “That theory imputes a supervisor’s motive to an employer if the motive influenced the employer’s decision.” The Tenth Circuit rejected that argument.
(The Cat’s Paw theory) doesn’t apply when independent decisionmakers “conduct their own investigations without relying on biased subordinates.”
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2022-09-27 14:03:562022-09-27 14:03:56Tenth Circuit rejects Cat’s Paw argument holding that review of termination decision by an independent decisionmaker breaks causal link on retaliation claim
In a case involving rather significant allegations of misconduct, the Tenth Circuit parsed through the evidence to hold, on summary judgment, that some of the worker’s claims were properly dismissed but other should have been allowed to proceed.
On her claim of discrimination, her case included a claim that an officer of the company said he felt she was “building a case” against the company and was “more trouble than she’s worth,” that he called her and another African-American female employee “Black b*s from Atlanta” and “resident street walkers.” However, the Tenth Circuit rejected the claim because it found no evidence that the officer was a decisionmaker or that he had any input in the adverse employment decision affecting her.
On her claim of retaliation, though, the Court noted that the same officer had allegedly laughed and said, “Let her try,” when the possibility of her re-applying for promotion in the future was discussed.
The court analyzed a number of other claims and multiple other allegations of specific evidence, including an incident involving rather graphic allegations of sexual harassment at a party attended by plaintiff and her co-workers, which the Court held was not sufficient to support a claim because the party occurred well before the time period for filing a charge of discrimination (300 days). But, the Court noted she claimed that she’d been asked multiple questions at work about her breasts, been subjected to “sexual banter,” on a near “daily basis,” much of which was corroborated by other female workers. The Court held this was sufficient to support claims of hostile work environment and constructive discharge.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2022-08-24 10:13:582022-08-24 10:13:58Tenth Circuit reinstates some claims by a worker but affirms dismissal of others
Previously during the pandemic, Colorado passed a whistleblower law that protected complaints in the workplace regarding a public health emergency. By way of SB 22-097, Colorado expanded that protection to “any reasonable concern about workplace violations of government health or safety rules, or about an otherwise significant workplace threat to health or safety” that is raised in “good faith.”
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As noted in a previous post, the NLRB earlier held a company liable for its CEO’s personal tweet intended as an obvious joke. The NLRB had viewed as irrelevant the CEO’s and even the employees’ statements that the tweet was meant as a joke. On appeal, the Third Circuit, considering the CEO’s First Amendment rights, reversed the NLRB holding there was no evidence to support its finding that the tweet could have been interpreted as a threat by a reasonable employee, especially where two employees said they took it as a joke and the comment was made without any actual threatening action having been taken and without any history of labor-management tension.
For starters, FDRLST Media is a tiny media company. Its six employees (not including Domenech) are writers and editors. The tweet’s suggestion that these employees might be sent “back” to work in a “salt mine” is farcical. The image evoked—that of writers tapping away on laptops in dimly-lit mineshafts alongside salt deposits and workers swinging pickaxes—is as bizarre as it is comical. So from the words of the tweet alone, we cannot conclude that a reasonable FDRLST Media employee would view Domenech’s tweet as a
plausible threat of reprisal.
. . .
The National Labor Relations Act grants the National Labor Relations Board vast authority to investigate charges of unfair labor practices, even when charges are filed by parties who are not personally aggrieved by the alleged practice. But the Board’s authority to find an unfair labor practice is not unlimited. Here, the Board spent its resources investigating an online media company with seven employees because of a facetious and sarcastic tweet by the company’s executive officer. Because the Board lost the forest for the trees by failing to consider the tweet in context, it misconstrued a facetious remark as a true threat. We will accordingly grant FDRLST
Media’s petition, set aside the Board’s order, and deny the Board’s petition for enforcement.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2022-05-23 12:33:182022-05-23 12:33:18Third Circuit reverses NLRB over facetious tweet
The DOL issued Field Assistance Bulletin 2022-02 to provide updated guidance on the anti-retaliation laws it oversees, including the FMLA and FLSA. The guidance provides a series of hypotheticals that illustrate when an employer might or might not have committed prohibited retaliation. HR professionals and employment lawyers may be interested in reviewing the guidance to obtain a sense of where DOL believes the line is crossed.
For example, DOL discusses whether unlawful retaliation has occurred (the names are the names DOL provides for each hypothetical employee and are offered for readers’ convenience in looking up a particular hypothetical of interest):
When an employee is terminated after telling a cow0rker that he has called DOL to ask about overtime rights? See hypothetical “Nelson.”
When a new mother is told to get back to work then eventually sent home after taking an extra long lactation break during which she was not able to finish pumping then asking if she would be allowed a break later in the day to do so. See hypothetical “Aisha.”
When an employee stays home on FMLA leave to care for his child but despite the FMLA leave having been approved, has three points assigned (without any disciplinary consequences) to his tally of absence points under the employer’s no-fault policy, which provides that every absence, whether approved or not, triggers three such points, with no discipline, until ten total points are accumulated in a year, at which point the employee is subject to possible discipline up to and including discharge. See hypothetical “Jaime.”
When the front-desk clerk takes a series of days off for migraines, comprising first 3 days, then 1 day, then 2 days, spanning a 4-month period, and, although all the days were approved under the FMLA, the hotel reduces her to part-time because front desk position requires a full-time reliable daily presence. See hypothetical “Deborah.”
Where the DOL would find violations in those hypotheticals, it also recites what relief it would require of the company.
The guidance also includes hypotheticals related to visa programs.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2022-04-09 11:56:032022-04-06 15:42:34DOL issues guidance on FMLA and FMLA retaliation
Title VII is the nation’s leading anti-discrimination law. It also prohibits employers from retaliating against employees who oppose unlawful acts such as discrimination. But what if the employee is opposing an act that isn’t actually unlawful discrimination? What constitutes an unlawful discriminatory act prohibited by Title VII can be a surprisingly complicated legal issue.
In a recent case, titled Reznik v. inContact, Inc., the plaintiff sued for retaliation because, she claimed, she’d been retaliated against for opposing discrimination against foreigners who worked for the company in that other country (or as the Court said “aliens”). However, being a foreigner who works in a foreign country is not itself a protected class under Title VII. However, the Tenth Circuit held the plaintiff wasn’t required to prove she opposed an actual violation. Rather, the test is whether the employee both subjectively and objectively believed the practice was prohibited by Title VII. To prove her subjective believe, she needed to prove she herself really had believed it was prohibited by Title VII. To prove it was the objective element, she needed to prove that a reasonable employee would have thought it was prohibited by Title VII.
We adopt an objective reasonableness inquiry that considers the law against what a reasonable employee would believe, not “what a reasonable labor and employment attorney would believe.”
Because Title VII protects both “race” and “national origin,” a reasonable employee, the Tenth Circuit held, might think those protected classes include being a foreigner who works in a foreign country.
The decision drew a sharp dissent that would have held the company was entitled to rely on the clear language of Title VII, which does not protect foreigners working in a foreign country.
The statutory text of Title VII expressly excludes aliens abroad. 42 U.S.C. § 2000e-1(a). Thus, no employer reasonably would have understood that Title VII prohibited the conduct Plaintiff opposed. Measuring one employee’s subjective good-faith belief that Title VII prohibits an employer from making offensive comments about aliens abroad against the text of Title VII, which precludes application to aliens abroad, I would hold that Plaintiff lacked an objectively reasonable belief that Defendant’s conduct constituted unlawful discrimination and affirm the district court.
Because this distinction is both significant and poses a clear question of law that has not been addressed by the Supreme Court, it is the kind of issue that may, if appealed, draw either reconsideration by the full bench of the Tenth Circuit and/or review by the Supreme Court. Unless either occurs, the majority opinion stands as law in the Tenth Circuit.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2022-02-04 11:40:062022-02-04 11:40:44Tenth Circuit expands ability to file retaliation claims under Title VII
The National Labor Relations Board held a company in violation for its CEO’s joke on the CEO’s personal Twitter stream. The CEO of the company posted, “FYI (company twitter handle) first one of you tries to unionize I swear I’ll send you back to the salt mine.” The employees who submitted evidence agreed the tweet was a joke. The Board disagreed and held the tweet was on its face a threat of anti-union retaliation, even if cloaked in a purported joke.
“In viewing the totality of the circumstances surrounding the tweet, this tweet had no other purpose except to threaten the (company’s) employees with unspecified reprisal, as the underlying meaning of ‘salt mine’ so signifies.”
The company argued that the CEO had a First Amendment right to speak on his personal Twitter account, and the Board agreed but noted, in footnote 9, that the First Amendment does “not extend to threats made by employers to workers” in violation of the NLRA.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2020-12-07 15:29:102020-12-07 15:29:10Hah-hah, just kidding. Not so much, says Board
Colorado State Labor Relations Rules, 7 CCR 1103-12; And
Equal Pay Transparency Rules, 7 CCR 1103-13.
Look for its latest posters on the CDLE’s Poster page (the following list is quoted from CDLE)
The “Colorado Overtime and Minimum Pay Standards” (“COMPS”) poster and notice, covering wage and hour law — see COMPS Rule 7.4, Posting and Distribution Requirements, unchanged from the 2020 COMPS Order, which requires employers to display the annually revised poster (and send it to off-site employees), plus include either the poster or COMPS itself in any handbook or manual the employer has.
The “Colorado Workplace Public Health Rights Poster: Paid Leave, Whistleblowing, & Protective Equipment” poster and notice, covering HFWA and PHEW since their enactment in July 2020 — see Colorado WARNING Rule 4, Notice and Posting Rights and Responsibilities, unchanged from the temporary WARNING Rules in effect since September 21, 2020, which requires employers to post and give employees notice of these rights.
Translations of posters and INFOs — to implement requirements for employers to provide posters and notices to non-English-fluent workers, DLSS in 2020 posted translations of its posters in 12 languages and Spanish translations of INFOs (on the same pages as the English posters and INFOs), with new translations of the 2021-updated posters to be posted later this month, and translations of INFOs coming thereafter.
With translations into Spanish and other language.
Look for informational summaries on the CDLE’s INFO page, where the CDLE provides the following information summaries (again quoting the CDLE):
INFO# 1: Colorado Overtime &, Minimum Pay Standards Order (COMPS Order) #37 [In Spanish:Hoja Informativa y Opinión Formal (INFO por sus siglas en inglés) # 1: Orden de COMPS #37] (Próximamente)
INFO# 2:DLSS Wage Claim Investigation Process
INFO# 3: Tips (Gratuities) and Tipped Employees Under Colorado Wage Law
INFO# 4: Meal and Rest Period
INFO# 5: Public Health Emergency Whistleblower Rights [In Spanish:Hoja Informativa y Opinión Formal (INFO por sus siglas en inglés) # 5: Ley de Protección al Denunciante de Emergencias de Salud Pública] (Próximamente)
INFO# 6A: Paid Leave Under the Healthy Families and Workplaces Act, through December 31, 2020 [In Spanish:Hoja Informativa y Opinión Formal (INFO por sus siglas en inglés) # 6A: Pago por Ausencia Laboral bajo el Acta de Familias y Lugares de Trabajos Saludables, vigente hasta el 31 de diciembre, 2020]
INFO# 6B: Paid Leave Under the Healthy Families and Workplaces Act, as of January 1, 2021 [In Spanish:Hoja Informativa y Opinión Formal (INFO por sus siglas en inglés) # 6B: Pago por Ausencia Laboral bajo el Acta de Familias y Lugares de Trabajos Saludables, a partir de 1º de enero] (Próximamente)
INFO# 7: Payment of Wages & Required Record-Keeping
INFO #8: Colorado Chance to Compete Act (“Ban the Box”)
In recent posts, this blog has summarized a number of the CDLE’s latest rules. Some of the highlights from this most recent information just posted by the CDLE implementing its new rules includes the following:
INFO #1: The new hourly minimum wage in Colorado will be $12.32. The new minimum guaranteed salary for exempt workers will be $40,500.
Employers are reminded they must distribute a copy of the COMPS poster or the entire COMPS Order 37 (new for this year) with any policies/handbooks that are being distributed otherwise. Signatures must be obtained.
INFO #4: The CDLE has taken a strict approach to meals and rest periods, summarized in INFO #4.
Employers are responsible for not only “authorizing” workers to take breaks, but they must “permit” them to do so, and CDLE explains a rest break is “authorized” if the company has an adequate policy for example, but even if “authorized,” it is not “permitted” if the employee is “unable or discouraged” to take the break. Evidence that the employee is not “permitted” to take a break may simply be the employee’s own statement that they “felt pressure from the employer not to take the break.
It is the employer’s obligation, not the employee’s, to track and record and keep records of employee breaks. An employer cannot simply say it assumed the breaks were being taken as “authorized” where an employee claims not to have been “permitted” to take the break.
When a break is missed, it counts as work time, must be paid as such, even if that triggers daily or weekly overtime.
INFO #5: In its rules and now in its INFO implementing Colorado’s new PHEW law (already in effect), the CDLE has take the position that an employer who provides no PPE (mask) in a time of a public health emergency may not prohibit an employee from using an unsafe mask. PHEW allows employers to prohibit employees from using masks that do not meet the company’s requirements, only if — according to the CDLE’s interpretation — the employer has first provided its own mask to the worker. Employers should consider making appropriate disposable masks available in their workforces, so that they can later prohibit inappropriate masks that employees might otherwise wish to wear.
INFO #7: The CDLE summarized rules regarding the payment of wages, the establishment of pay periods, payment of final wages at separation, pay statement requirements and recordkeeping requirements.
INFO #8: The CDLE explained Colorado’s new ban-the-box law. Companies may not state in job applications or advertisements “that a person with a criminal history may not apply,” nor ask about the person’s criminal history on an application, nor require the applicant to disclose any criminal history on the application. Additionally, the CDLE says this prohibits an employer from stating that background checks will be required. Although an employer may require background checks as part of a conditional offer of employment, that may not be stated in an application or advertisement. The CDLE explains the limited exceptions available where employers are otherwise required by law to inquire into these matters.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2020-12-07 04:10:092020-12-08 17:00:37CDLE issues more new information for Colorado employers
An explanation of the “reasonable” and “good faith” requirements a whistleblower must meet to be protected, to include under Rule 5.1.2 a statement by the worker, without necessarily citing a specific rule or guideline, “what action, condition, or situation they believe constitutes a qualifying violation of a rule regarding, or significant threat to workplace health or safety.”
An explanation in Rule 5.2.3 that, while Colorado’s new law permits workers to insist on using their own more protective PPE, such PPE must itself be sourced “from a reliable provider” if the company has provided PPE compliant with federal, state and local recommendations that was sourced from a reliable provider.
Perhaps most controversially, an explanation in Rule 5.2.4 that whistleblower cases under this new law will entail a lower burden of proof for an employee who seeks to prove they were constructively discharged than most other whistleblower laws require. The worker will be able to prove a constructive discharge if he proves he blew the proverbial whistle in compliance with the new rules, including Rule 4.1.4 (above), the company failed to remedy the concern “immediately,” continuing to work would have posed a “substantial threat to health or safety for any person,” and he quit as a result thereof. In its prefatory Statement explaining the rule, the CDLE confirms this means that a plaintiff will not be required to prove the employer took an adverse employment action against the plaintiff; in other words, it will not be required to prove discharge, demotion, cut in pay, hours, etc.
Employers in Colorado should take time to familiarize themselves with these new rules.
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In 2018, the Supreme Court rejected, in a decision titled Epic Systems Corp. v. Lewis, the argument that Section 7 of the National Labor Relations Act’s protections for protected concerted activity somehow encompass a right to file class action and collective action lawsuits. There the Supreme Court held that, accordingly, employers can require pre-dispute arbitration agreements, even if it means such agreements block class and collective actions.
The Board recently was faced with a case on the issue and adopted the Supreme Court’s approach, restating that the NLRA does not bar arbitration agreements, even if they have that effect. In doing so, the NLRB clarified that employers are still prohibited from retaliating against employees who choose to act together by filing a class or collective action. “We reaffirm, however, longstanding precedent establishing that Section 8(a)(1) prohibits employers from disciplining or discharging employees for engaging in concerted legal activity, which includes filing a class or collective action with fellow employees over wages, hours, or other terms and conditions of employment.”
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2019-09-24 04:20:442019-08-23 16:22:13NLRB implements Supreme Court’s 2018 decision on arbitration agreements
Resolving a split among the Circuits, the Supreme Court sided with the Tenth Circuit‘s recent approach, ruling that an employee’s failure to exhaust the statutory prerequisites for filing claims of discrimination and most kinds of EEO (equal employment opportunity), i.e., Title VII claims, is a procedural affirmative defense, not a jurisdictional defect. This means the defense can be waived by employers who fail to assert it.
Employers should ensure that they review all available defenses and assert viable ones throughout their defense of such claims.
Source: Fort Bend County v. Davis, — Sup.Ct. —, case no. 18-525 (6/3/19).
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2019-06-03 14:43:102019-06-03 14:44:19Supreme Court sides with Tenth Circuit, resolving split in Circuits, holding failure-to-exhaust is a procedural affirmative defense, not a jurisdictional defect
Following up on developments in California and New York, as well as under the federal tax code, New Jersey has banned nondisclosure provisions, a/k/a confidentiality provisions, in agreements, including employment agreements and settlement agreements, that would prohibit disclosure of allegations related not only to sexual harassment but also discrimination, retaliation and other forms of prohibited harassment.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2019-04-23 15:30:392019-03-26 15:31:28New Jersey Adds And Expands On State Laws Banning Non-Disclosure Provisions
The Tenth Circuit held that, unlike its other provisions, FLSA’s anti-retaliation provision applies to persons whether or not they are engaged in interstate commerce. In the case, two workers became convinced that their employer owed them overtime under federal law (FLSA, the Fair Labor Standards Act). They complained to the DOL, were fired and the DOL sued the company alleging that the discharges were retaliation for cooperating with the DOL’s investigation.
FLSA’s overtime (and other provisions) apply only to employers who are engaged in interstate commerce. Here the company argued it had established it was not. The Tenth Circuit held that, whether it was or wasn’t was irrelevant in a retaliation claim. The court held that, as written, FLSA’s anti-retaliation provisions do not require proof that the defendant is engaged in interstate commerce. The court held, therefore, the company could be sued for retaliation, whether or not it was engaged in interstate commerce.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2019-01-17 16:20:362019-01-15 15:54:30FLSA’s anti-retaliation provisions permit lawsuits against persons, including entities, even if not enterprises within interstate commerce
The Tenth Circuit held that the False Claims Act (FCA) protects only individuals who are employed at the time of the alleged retaliation. In this case, the employee left the employer complaining of what she believed were violations of the False Claims Act. She then entered into a settlement, in which she promised not to disparage her former employer. The company believed she proceeded to do just that — disparage it — and sued. She responded by, well, suing, alleging that the company’s lawsuit against her was retaliation prohibited by the FCA. The Court held that the FCA did not apply to her claims. The Court held that that FCA protects “only persons who were current employees when their employers retaliated against them.” Since, by that point, she was a former employee, she was no longer protected by the FCA; even if the company’s lawsuit were construed as retaliation, it was not retaliation prohibited by the FCA.
However, the Tenth Circuit cautioned that its ruling doesn’t mean all “former employees” lack FCA protection. Instead the question is whether the individual was employed at the time of the alleged retaliation. “If that condition is met, it doesn’t matter whether the employee remains a current employee of the employer when suing.”
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2019-01-03 15:58:522019-01-04 06:56:35Tenth Circuit holds that the False Claims Act protects only individuals who are employed at the time of retaliation
The Fair Labor Standards Act (FLSA) is the nation’s leading wage-hour law. Most notably it includes requirements such as minimum wage, overtime and child labor laws. Those provisions apply onto to an “enterprise” that is engaged in interstate commerce. It also prohibits retaliation against workers who exercise FLSA rights. In a recent case, the Tenth Circuit held that the anti-retaliation provisions apply more broadly than the rest of FLSA.
As the Court explained the bulk of FLSA applies only to “‘an enterprise engaged in commerce.’ 29 U.S.C. § 207(a)(1). ”Commerce’ means trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof.’ § 203(b).”
However, the anti-retaliation provision of FLSA does not refer to an enterprise engaged in commerce. It states that “it shall be unlawful for any person . . . to discharge or in any other manner discriminate against any employee because such
employee has filed any complaint . . . related to [FLSA].” § 215(a)(3) (emphasis added). A person is defined as “an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons.” § 203(a).
Accordingly, the Tenth Circuit held that the anti-retaliation provision in FLSA reaches farther than its other protections to apply to any “person,” not just an “enterprise,” that engages in retaliatory conduct.
Source: Acosta v. Foreclosure Connection, Inc., — F.3d —, case no. 2:15-CV-00653-DAK (10th Cir. 8/15/18).
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As a general rule, the EEO laws, such as Title VII (race, gender, religion, etc.) and the ADEA (age), do not allow a plaintiff to sue for the everyday “slings and arrows” they might suffer in the workplace (quoting Shakespeare’s Hamlet). Rather, the law requires an “adverse employment action.” The adverse employment action test requires the plaintiff to show material harm to the terms and conditions of their employment. That doesn’t always have to mean being fired or demoted. In retaliation cases, it can be anything a reasonable worker would find sufficient to chill them from reporting misconduct.
Two recent decisions by the First and Seventh Circuit illustrate the kinds of conduct that do not rise to the level of an adverse employment action.
In the First Circuit case, the plaintiff argued that each of the following, separately and together, was sufficient, but the court disagreed:
The plaintiff’s supervisor allegedly demonstrated anger and overreacted when the plaintiff went over his head.
The supervisor allegedly made a temporary change to the plaintiff’s schedule.
The supervisor allegedly told the plaintiff to pull down his pants when the plaintiff said he had a skin condition.
The supervisor and two coworkers allegedly called the plaintiff a “cry baby.”
When the plaintiff took a medical leave but did not provide the required medical documentation, his leave was converted to paid vacation.
In the Seventh Circuit case, that court held the following was insufficient to prove an adverse employment action:
The plaintiff’s request for medical leave was, allegedly, originally misclassified as paid sick leave not FMLA leave.
A psychological examination had, allegedly, been requested of him in circumstances where the evidence such a request was “not unusual” (the plaintiff was a police officer and the psychological exam was requested as part of his clearance to return to duty).
Approval of his request to work a secondary job had allegedly been delayed for three months.
As the First Circuit noted, the adverse employment action requirement may seem harsh, but it remains the well established threshold that a plaintiff must cross to warrant court litigation.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2018-05-29 13:05:182018-05-22 13:06:18First and Seventh Circuit decisions illustrate the “adverse employment action” requirement in EEO cases
Dodd-Rank is the nation’s leading securities-related whistleblower law. What if an individual complains, not to the SEC, but to the company at-issue, is a mere internal complaint to the company sufficient to trigger Dodd-Frank’s protections? In a unanimous 9-0 decision, the Supreme Court, after reviewing the text of Dodd-Frank itself, held the answer was clear: Congress wrote Dodd-Frank to protect only complaints to the SEC. Therefore a complaint to the company at-issue, alone, is insufficient to trigger Dodd-Frank’s protections.
The case is also notable for the absence of analysis regarding Chevron deference. Chevron deference is the legal term used to refer to the practice of courts deferring to agency interpretations of statutes. Here, while Dodd-Frank itself clearly required a complaint to the SEC, the SEC had interpreted the language more broadly, saying that a complaint to a company alone should also be protected. The concept of Chevron deference has become quite controversial, and commentators anticipated this might be the case by which the Supreme Court revisited the topic. However, the Supreme Court, having decided the language of the statute itself was clear, had no opportunity to do so. The continuing viability of Chevron deference remains an issue for another case to resolve.
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As previously reported on this blog, the NLRB recently cleared Google of charges that it had allegedly violated Section 7 of the National Labor Relations Act by discharging the author of a controversial memo that attempted to explain his view that men are biologically more fit to be engineers than women. The NLRB held that, while some aspects of his memo might have been protected under Section 7 — a part of the NLRA that applies to both unionized and non-unionized workplaces — there were parts that stereotyped women and warranted Google’s decision to “nip in the bud” (quoting the NLRB General Counsel) his sexist communication.
The NLRB General Counsel’s decision, though, doesn’t end the litigation. There are now at least two separate lawsuits on-going: One by the memo’s author, James Damore, and another by a critic of Damore’s views, Tim Chevalier.
Both are former employees, terminated by Google for their speech involving Damore’s memo. In his memo, Damore advocated that Google had a culture of discrimination against white men and conservatatives, despite his view that men were in fact biologically better fit to be engineers at the highest level of the tech industry. In contrast Chevalier advocated verbally, through conduct, by email, on social media and on Google’s internal systems, that the Damore memo was “misogynistic,” that it was hostile to protected classes including gender, sex and race, and that it reflected, he alleged, a larger culture of hostility, including bullying, at Google on those same bases.
Damore’s lawsuit includes allegations, under California’s anti-discrimination laws, that Google discriminates against conservatives, Caucasians and men. Damore seeks to represent a class of such individuals against Google.
Chevalier’s lawsuit, also filed under California state law, asserts that he too was terminated for his political speech, including his activities to oppose not only Damore’s memo but also the Trump Administration’s politics and to protect the rights of minorities and women and rights associated with gender preference and sexual orientation. Also, Chevalier, a transgendered man, alleges his termination was linked to his efforts to protect related to sexual orientation and gender preference.
Both complaints are lengthy and warrant additional review by interested readers. Those are just some of their allegations. The merits of Mr. Damore and Mr. Chevalier’s complaints will be litigated, but the filing of their lawsuits illustrates how labor laws like the NLRA interact with employment laws like those at-issue in these lawsuits. An employer can comply with one set of laws and run afoul of another.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2018-02-22 09:59:052018-02-22 09:59:05Google memo litigation continues, on two fronts
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2017-11-27 13:17:282017-11-18 13:18:07Interested in my thoughts on the Gothamist shutdown?
An Oregon trial court recently held that the advice of legal counsel does not immunize an employer against a later employment lawsuit. The employee lodged complaints involving sexual harassment and workplace safety concerns. The employer consulted with legal counsel, who advised, on the basis of her being an at-will employee, that the employee could be terminated. Further, the employer testified his attorney told him the company not only could but should terminate her. “According to (an owner of the employer), the attorney referred to Plaintiff as ‘a troublemaker’ and advised Morse to terminate her.” That owner testified the company would not have terminated her if the attorney hadn’t given his blessing.
The court recognized Tenth Circuit precedent in favor of an employer in a similar situation, but in that situation, the attorney recommended the plaintiff’s request for a shift assignment be denied because a similar request was already at-issue in a different pending lawsuit. In other words, the attorney recommended the employer treat the employee uniformly with its prior practice. Because, in following the attorney’s advice, the company’s “motive” was to treat its employees uniformly, the Tenth Circuit held its motive did not include a retaliatory/unlawful intent. The Tenth Circuit simply held the company had acted for a lawful reason — one that its attorney had articulated — and not even in part an unlawful reason. In so ruling the Tenth Circuit clarified that the advice of counsel was not itself a defense; it was simply evidence that supported the presence of a lawful motive.
To be sure, an employer cannot immunize itself from Title VII liability by following the advice of its lawyers. Still, given the facts of this case, the City was not required to compromise its defense of Lollis’s claims simply to accommodate McGowan’s subjective desire for a change in shifts. In sum, this record does not support a conclusion that the City’s reason for denying McGowan a shift change was pretextual. The City’s temporary refusal to grant McGowan’s request for a shift change was perhaps reactive, but cannot be said on this record to have been retaliatory.
Here, there was no similar reasoning available to the employer. If the company’s attorney had really advised that at-will employment somehow permitted an otherwise illegal discharge, that would have been incorrect. If the attorney really had somehow come to a legal conclusion the plaintiff was a “troublemaker” who should be fired, that again would only have confirmed a retaliatory motive. The fact that the company (allegedly) consulted with an attorney did not — unlike the Tenth Circuit case — suggest it had anything but an unlawful intent: The intent to retaliate against a troublemaker.
The case is a reminder that employers should consult with experienced legal counsel but not anticipate doing so can somehow immunize an employer against the consequences of unlawful actions. But, as in the Tenth Circuit case, the consultation with a lawyer can be used as evidence, when appropriate, of a lawful motive.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2017-11-21 13:05:032017-11-14 13:05:56The advice of legal counsel does not immunize an employer against later employment lawsuit
In a decision that is already drawing harsh criticism, the Ninth Circuit held that an attorney may be liable to his client’s former employee for retaliation where the attorney contacted federal immigration authorities at U.S. Immigration and Customs Enforcement (ICE) to advise, “if there is an interest in apprehending” the plaintiff, he would be attending a deposition on a certain date. ICE conducted its own investigation and determined “based on our records he has no legal status.” The plaintiff learned that ICE was aware of him, alleged that realizing the same had caused him severe, and as a result, he said, settled his wage-hour lawsuit against the former employer. After settling with the company, he sued its attorney, again, not his own attorney but opposing counsel. The Ninth Circuit noted that attorney had allegedly communicated with ICE about five other plaintiffs and held that the plaintiff’s claim should be allowed to proceed.
In doing so, the Ninth Circuit reviewed the statutory language of FLSA’s retaliation provisions. The Fair Labor Standards Act (FLSA) is the nation’s primary wage-hour law. The Ninth Circuit read its anti-retaliation language as being broader than its substantive provisions regarding overtime, minimum wage, etc. The Ninth Circuit said the broad anti-retaliation language was more like Title VII’s (the nation’s leading anti-discrimination law). The Ninth Circuit held that, given the breadth of FLSA’s anti-retaliation language, such a claim is viable.
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The Tenth Circuit reaffirmed the requirements an employer faces when a less than clear employee presents with a potential disability. In this case, the plaintiff had a pacemaker but otherwise no restrictions and needed no accommodations at work. He required a battery replacement to the pacemaker, and the procedure left him with an infection. He took FMLA leave then, while on leave, informed his employer he wouldn’t be able to return for an additional week after his FMLA leave expired.
He did not say he had a disability, but the Tenth Circuit held that the company knew enough to know that he did. The Tenth Circuit rejected the argument that, with his pacemaker, the plaintiff had no restrictions. The court noted that established ADA law requires courts to consider the plaintiff’s condition without the benefit of ameliorative treatments, like a pacemaker (medication, eyeglasses, etc.). But for the pacemaker, the court held that the company knew enough to know the plaintiff’s condition would have beenbad enough to constitute a protected disability.
With regard to the fact that he was entitled to no more FMLA leave, and with regard to the fact that he never actually asked for extra leave at the end of his FMLA leave, the Tenth Circuit held he’d effectively put the company on notice that it should have engaged in the ADA-required interactive process while he was on his FMLA leave. Even though he didn’t ask for extra leave, the company should have discussed with him whether his disability required a reasonable accommodation, and if it had done so, one potentially reasonable accommodation would have been an additional unpaid week’s leave.
Indeed, the facts of the case began even earlier with an OSHA investigation that the plaintiff maintained he’d been suspected of starting by anonymously complaining to OSHA. He sued for that as well, and the Tenth Circuit held that the foregoing, and other alleged conduct, could have been part of a claim for OSHA retaliation as well (under a Kansas law that recognizes such claims as public policy violations). Therefore, he was allowed to proceed on both his ADA and wrongful discharge claims.
The case is a good illustration to employers of the need to fully consider, in consultation with legal counsel, known information, even when a plaintiff seems otherwise fine, only suffers what seems to be a temporary setback and is himself less than clear about what he needs from the company.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2017-07-25 11:25:272017-07-07 11:32:36Tenth Circuit reaffirms disability and accommodation requirements
The D.C. Circuit overruled the NLRB in a case involving a broad range of issues, including Weingarten rights, retaliation, surveillance and coercion.
The court’s analysis began with the Weingarten issue. Weingarten is a case that held a union-represented employee may demand a representative be present at any interview where the employee anticipates discipline may follow. Weingarten allows an employer three options in response to such a demand: (1) grant the request and permit the representative to be present then hold the interview, (2) cease the interview or (3) permit the employee to choose between ceasing the interview or proceeding without a representative. The third option allows an employee to choose to continue the interview if he thinks that what he has to say will be helpful to himself, or to waive the interview entirely and thereby allow the employer to make decisions without the benefit of his information. In this case, when the employee requested a Weingarten representative, the employer attempted to find the representative, even asking HR for help finding the rep. When they could not find the representative, they gave the employee the third option, and he chose not to be interviewed. In this case, the D.C. Circuit held the company met its Weingarten obligations.
At that point, the company put the employee on paid leave pending investigation. The NLRB had held that doing so was retaliatory, but the D.C. Circuit — preserving for employers the important tool of being able to suspend pending investigation — reversed the Board, holding that doing so was not retaliation.
Thereafter, the employee dawdled in a work area before leaving. A supervisor observed him there and instructed him to leave. Here too the D.C. Circuit reversed the Board, holding that it was not an act of prohibited surveillance, but was rather a “routine” observation.
As the employee was told to leave, he was told to stop his discussion with a co-worker – a discussion that centered on the employee’s criticism of management. The D.C. Circuit reversed the Board here as well, holding this was not coercion of protected speech or protected conduct. “As noted above, given the circumstances in this case, it was perfectly reasonable for the Company to instruct (the employee) to leave the workplace pending investigation of his alleged wrongdoing.”
The case illustrates the importance of understanding Weingarten in unionized workforces. The Weingarten issue became the foundation for all of the Court’s analysis. The case also illustrates, in all workplaces, unionized or not, the proper use of suspensions pending investigation.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2017-06-12 11:36:452017-06-13 08:39:50NLRB overruled by D.C. Circuit