Pennsylvania Labor and Employment Blog : Pennsylvania Labor and Employment Lawyer & Attorney : McNees Wallace & Nurick Law Firm : Human Resources, Workplace and Business Law : Harrisburg, Lancaster, Allentown, Lehigh

This post was contributed by Tony D. Dick Esq., an Associate in McNees Wallace & Nurick LLC's Labor and Employment Practice Group in Columbus, Ohio.

More and more employers are recognizing what employment attorneys have long known. The most prevalent type of employment discrimination claim is not one based on race, sex, religion, disability or age. Rather, it is one alleging unlawful retaliation. In fact, in 2010, for the first time ever, retaliation claims surpassed race discrimination claims to become the most common type of claim filed with the Equal Employment Opportunity Commission (EEOC). This trend is not expected to end anytime soon.

Just before the holidays, the United States Department of Labor released three new fact sheets offering further guidance to employers on the topic of retaliation under the Fair Labor Standards Act (FLSA), the Family Medical Leave Act (FMLA), and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). Each of these statutes contain specific provisions prohibiting employers from taking adverse employment actions against employees for asserting rights covered under these laws.

Fact Sheet #77A: Prohibiting Retaliation Under the FLSA, provides general information concerning the FLSA’s prohibition of retaliating against any employee who has filed a complaint or cooperated in an investigation where an FLSA violation is alleged. The fact sheet also incorporates last year’s U.S. Supreme Court decision in Kasten v. Saint-Gobain. There, the Court held that an employee’s verbal complaint about alleged wage and hour violations can be sufficient to trigger the anti-retaliation protections under the FLSA.

Fact Sheet #77B: Protection for Individuals under the FMLA, reiterates that employers are prohibited from retaliating against employees who exercise their right to take FMLA leave or any other FMLA right, complain about or oppose any unlawful practices under the FMLA, or participate in proceeding concerning FMLA rights. In addition, the fact sheet provides specific examples of prohibited retaliatory conduct under the FMLA. Examples include: refusing to authorize FMLA leave for an eligible employee, discouraging an employee from using FMLA leave, manipulating an employee’s work hours to avoid responsibilities under the FMLA, using an employee’s request for or use of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions, and counting FMLA leave under “no fault” attendance policies.

Fact Sheet #77C: Prohibiting Retaliation Under the MSPA articulates that certain agricultural employers may not “intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against any migrant or seasonal agricultural worker” who files a complaint under the MSPA, participates in any proceeding under the Act, or exercises any MSPA right. The fact sheets also identifies what employers are subject to the statute and outlines the MSPA’s enforcement mechanisms.

As you can see, retaliation is hot topic,and retaliation claims are trendy.  Now more than ever, employers, and more importantly supervisors and managers, must be aware of the risks of retaliation claims.

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This post was contributed by Tony D. Dick Esq., an Associate and a member of McNees Wallace & Nurick LLC's Labor and Employment Practice Group in Columbus, Ohio.

In a 6-2 decision, the United States Supreme Court recently ruled in Kasten v. Saint-Gobain Performance Plastics Corp., ___ U.S. ___, No. 09-834 (2011) (pdf), that an employee’s verbal complaint about alleged wage and hour violations can be sufficient to trigger the anti-retaliation protections under the Fair Labor Standards Act (“FLSA”).

At issue was the provision in the statute that makes it illegal “to discharge . . . any employee because such employee has filed any complaint” alleging a violation of the Act. 29 U.S.C. § 215(a)(3). Plaintiff Kevin Kasten, a former employee of Saint-Gobain, alleged he was terminated in retaliation for making oral complaints to his supervisors and human resources personnel regarding the location of the company’s time clocks, which Kasten alleged prevented employees from recording time spent “donning and doffing” protective equipment. The question before the Court was whether the phrase “filed any complaint” in the statutory text of the FLSA included both verbal and written complaints. The District Court granted Saint-Gobain’s motion for summary judgment, concluding the FLSA's anti-retaliation provision did not cover verbal complaints. The Seventh Circuit affirmed the lower court’s decision.

In reversing the Seventh Circuit’s decision, the Supreme Court first analyzed the actual text of the statute but, finding the text to be open to multiple interpretations, ultimately relied on an examination of congressional intent and the Department of Labor’s and the Equal Employment Opportunity Commission’s interpretation of the phrase. With respect to Congress’s intended purpose in enacting the anti-retaliation provision of the FLSA, the Court stated specifically:

Several functional considerations indicate that Congress intended the anti-retaliation provision to cover oral, as well as written, “complaint[s].” First, an interpretation that limited the provision's coverage to written complaints would undermine the Act's basic objectives. The Act seeks to prohibit “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.” 29 U.S.C. § 202(a). It does so in part by setting forth substantive wage, hour, and overtime standards. It relies for enforcement of these standards, not upon “continuing detailed federal supervision or inspection of payrolls,” but upon “information and complaints received from employees seeking to vindicate rights claimed to have been denied.” And its anti-retaliation provision makes this enforcement scheme effective by preventing “fear of economic retaliation” from inducing workers “quietly to accept substandard conditions.”

Slip op. at 7.

The Court articulated a test to determine whether a complaint is “filed” for FLSA purposes. Under the test, if a reasonable and objective person would have “fair notice” that the employee is asserting statutory rights, the employee is protected under the FLSA. “Fair notice” is achieved where a “complaint [is] sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights.”

What does the Court’s decision mean for employers? It should be clear that the case expands the bounds of potential employer liability under the FLSA. The Court’s decision may also have farther reaching implications beyond the FLSA as several other federal statutes, including Occupational Safety and Health Act and the Clean Air Act, contain similar anti-retaliation provisions. A cautious employer will treat a verbal complaint the same as a written complaint. In disciplinary investigations, employers should ask supervisors whether the particular employee has made any oral complaints to determine whether the employee may make an argument in the future that any disciplinary action was in retaliation for making the complaint. As always, employers should document the specific reasons for employee terminations and disciplinary actions and follow established company policies to limit later arguments by a terminated employee that he or she was terminated because of a retaliatory motive on the part of the employer.

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This post was contributed by Anthony D. Dick, Esq., an Associate and a member of McNees Wallace & Nurick LLC's Labor and Employment Practice Group in Columbus, Ohio.

The number of retaliation-based charges of discrimination filed with the Equal Employment Opportunity Commission (the “EEOC") has doubled from approximately 18,000 to 36,000 in the last ten years.  Last week, the United States Supreme Court issued a decision that surely will cause this trend to continue.  In a unanimous decision, the Court held in Thompson v. North American Stainless (pdf) that an employee who claimed he was terminated because his fiancée engaged in protected activity, could bring a retaliation claim against their mutual employer under Title VII of the Civil Rights Act of 1964 ("Title VII").

Plaintiff Eric Thompson met and eventually became engaged to Miriam Regalado while both worked for North American Stainless (“NAS”).  Subsequently, Regalado filed a charge of discrimination with the EEOC, claiming NAS discriminated against her because of her sex. Approximately three weeks later, NAS fired Thompson.  Thompson filed suit, alleging his termination was in retaliation for his fiancée’s protected activity.

Both the U.S. District Court for the Eastern District of Kentucky and the Sixth Circuit Court of Appeals ruled that Thompson did not have standing to sue for retaliation under Title VII because he had not engaged in any protected activity under the law.  The Sixth Circuit reasoned that the plain language of Title VII did not contemplate third-party retaliation claims.  The statute specifically provides that:  “It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.” 

In an opinion written by Justice Scalia, the Supreme Court determined that NAS’s alleged conduct was prohibited by Title VII.  The Court ruled that the anti-retaliation provision of Title VII must be construed broadly to prohibit any employer action that would “have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  Applying this rule, the Court found that a reasonable employee certainly would be dissuaded from engaging in protected activity if she knew that the consequence would be her fiancé’s termination from the company.

NAS argued unsuccessfully that this standard will force employers into an unenviable position of having to try to identify whether an employee who is about to be terminated has a close relationship with someone who recently engaged in protected activity before taking an adverse action that could expose it to a third-party retaliation claim.  In rejecting this argument, the Court noted that, "[a]lthough we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VII." 

The Court refused to articulate a bright-line rule concerning how close a relationship must be to afford third-party retaliation protection, stating in pertinent part, “[w]e expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.”

In analyzing Thompson’s standing to sue under Title VII, the Supreme Court went on to find that the term “person aggrieved” under the statute includes a plaintiff who falls within the "zone of interests" sought to be protected by Title VII.  Thus, if Title VII “arguably sought” to protect that person’s rights, he or she has standing under Title VII; however, if the individual has interests that are only “marginally related to or inconsistent” with the purposes of law, no standing to sue exists.

According to the Supreme Court, Thompson had standing to pursue his own retaliation claim against NAS because he fell within the amorphous “zone of interests” contemplated by Title VII.

It should be clear that this case expands the bounds of employers’ potential liability under Title VII.  Now, more than ever, employers should use caution when taking adverse action against an employee whose spouse, family member, domestic partner or fiancé(e) recently engaged in protected activity.  And, as always, employers should document the specific reasons for employee terminations and follow established company policies to limit later arguments by a terminated employee that he or she was terminated because of a retaliatory motive on the part of the employer.

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In its decision in Crawford v. Metropolitan Government of Nashville and Davidson City, the United States Supreme Court considered the scope of Title VII protections from retaliation for employees who act as witnesses in an employer's internal investigation into harassment. The Court held that an employee's involvement in the employer's internal investigation constituted opposition to unlawful employment practices when she responded to her employer's questions in a manner disapproving of accused harasser's sexually obnoxious behavior toward her. The Court's decision unfortunately does not create a bright line standard for employers defining the scope of an employee's involvement in an internal investigation which can trigger protections from retaliation. Employers should tread very carefully in this area.

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