Posted by marykeating on February 3, 2012 under Federal wage and hour law, retaliation | 
The Supreme Court issued a decision last year stating for the first time that a complaint about wages and hours need not be in writing to invoke the protection of the Fair Labor Standards Act. Before that, many courts had determined that only complaints made to the Department of Labor triggered anti-retaliation protection. The Supreme Court’s decision left open the issue whether complaints made only within a company qualified for protection.
The Fourth Circuit returned to this issue last week, and engaged in quite a bit of statutory analysis before concluding that an employee who complained about her supervisor could sue for retaliatory termination. In Minor v. Bostwick Laboratories, an employee asked for a meeting with the company’s head to inform him that her supervisor regularly altered employees’ timesheets to erase overtime hours. A few days later she was terminated, the employer citing her inability to get along with her supervisors.
The Fourth Circuit now allows the suit to go forward. The difficulty with the conclusion comes with the language of the depression-era law, which provides for protection for an employee who “files” a complaint. The Fourth Circuit’s decision makes sense given the purpose of the law. Employee advocates point out that to deprive employees of protection when they complaint internally gives an incentive to employers to fire complainers before they go to the outside agency. On the other hand, to require an employee to complaint externally (as with many whistle-blower type claims) encourages people to make complaints to government agencies whenever they see a potential violation. Employers have a major incentive to avoid problems, if a discussion and investigation could cure the issues before they become a federal case.
Posted by marykeating on October 31, 2011 under Sex-based discrimination, retaliation |
Most employers have policies against discrimination and harassment based on protected categories, such as race, sex, religion and national origin. To be effective, and to provide effective defenses against lawsuits, the policies often require supervisory personnel to report anything observed or reported to them that looks or smells like discrimination or harassment, regardless of whether an employee actively complains. The policies also require supervisors to pass along actual complaints. When they work well, these policies can minimize discriminatory cultures, and stop harassment before it ruins someone’s career. When reports of discrimination enrage the perpetrator or other managers, however, the fallout can be widespread and expensive.
In a recent Montgomery County case, for example, the employer retaliated against an employee for reporting sex discrimination. The harassment victim’s supervisor alerted the higher-ups of the retaliation. Soon thereafter the 30-year employee (the one reported her subordinate’s complaint and her observation of the retaliation) experienced retaliation herself. Her supervisor and upper management demoted her, and transferred her, increasing her daily commute from 4 to 84 miles. The jury responded to her allegations that she was fired for opposing a discriminatory practice, and awarded $650,000.
Posted by marykeating on August 25, 2011 under Collective rights, retaliation |
The National Labor Relations Board has taken or considered action in several cases involving twitter and facebook. The cases arise when an employer disciplines or fires an employee after finding out about something the employee posted on facebook or twitter. The NLRB has taken the position that facebook is not much different from any other meeting of employees to talk about their work conditions. If they are acting together, their conduct may be concerted activity protected by the National Labor Relations Act. If, on the other hand, the employee is venting only about his own issue, or if he’s using inappropriate language or sentiments, then the discipline is lawful.
The first cases took many people by surprise. Part of the surprise stemmed from two widespread misconceptions. The first is that the Act applies only to unionized workforces. Not so; the Act protects workers’ rights to organize. They can’t organize if they’re not allowed to speak to each other about the workplace. If employees get together to protest working conditions, a supervisor, or their pay, they are protected from retaliation, even if they have no plans to form a union.
The second misconception is that employees have a First Amendment right to speak out whenever they want. In the private sector (non-government employees), there is no such right. The First Amendment prohibits government from squelching the right of free speech. Most people find their speech can be regulated by their boss.
Because there is no private sector right of free speech, some employers have fired workers for posting derogatory messages. The NLRB has intervened when the messages have led to concerted activity. The intervention includes holding certain policies to be unlawful. For example, in one case, the employer’s policy prohibited employees “from making disparaging comments when discussing the company or the employee’s superiors, coworkers, and/or competitors.” Another prohibited “disrespectful conduct” towards others. A third made “inappropriate discussions” grounds for discipline. Sometimes rules prohibit employees from sharing their salary information. All violate Section 8(a)(1), according to the NLRB.
In its new memorandum, OM 11-74, the NLRB discusses some of the recent cases in an attempt to explain where the lines are drawn. A posting on facebook, just like a discussion at work, can lose its protection if it’s over the top. The Board does not protect speech if it is disloyal, reckless, or maliciously untrue. It also requires some protected activity. An employee venting alone is not covered by the Act, nor are rants that don’t concern the terms and conditions of employment. For example, a reporter was fired for inappropriate tweets about the city’s homicide rates; a bartender complaining that he did not get tips, and hoped that the bar’s clientele “choked on glass” was properly fired. Employees seeking to be protected must be speaking with or on behalf of others, not just expressing an “individual gripe.”
Employers are still getting the word about these decisions, and how much they can regulate. Good rules of thumb for the employee who wants to discuss the problems at work are: avoid gratuitous personal remarks about the supervisor; don’t disclose confidential information about the clientele; ease off the profanity; make sure the issue is of wider concern than yourself; and take a breather before you post. Angry, sarcastic comments may not do much to express concerns that the other employees share, and usually don’t reflect well on the poster.
Posted by marykeating on August 17, 2011 under Interesting cases, Wrongful termination, retaliation |
The Court of Appeals just released a decision reinstating a state employee’s wrongful termination case. Tyson Lawson, a member of the Bowie State University Police Department objected to an arrest that he believed was constitutionally defective. He was fired for violating the chain of command in his reporting of the incident and his suspicions. He lost at his administrative hearing because the administrative judge believed that his report of wrongdoing was motivated by his personal interest in changing the department’s culture, rather than his reasonable belief that his disclosure evidenced a violation of law, abuse of authority, gross mismanagement, gross waste of money, or a substantial and specific danger to public health or safety.
The State’s highest court rejected that analysis. The employee need not “possess a purely altruistic motive for the disclosure.” The public welfare is served by having employees disclose violations of law and waste of public money. To obtain protection under the whistleblower law, “an employee must prove that a reasonable person would believe the disclosure exposes a violation,” not that the violation actually occurred.
Whistleblowers may well be the people who want changes to the department, or to government as a whole. They are not altruistic bystanders, they are on the inside, and usually in a better position to uncover abuses. They are probably well aware that blowing the whistle will cause them problems. By disallowing a focus on their motivations, the Court adds some welcome protection for people willing to speak out.
Posted by marykeating on August 16, 2011 under Sex-based discrimination, retaliation, sexual harassment |
The Fourth Circuit recently overturned a decision dismissing the sexual harassment claim of a former Baltimore City employee, Katrina Okoli. Contrary to the trial court, the Court of Appeals first decided that the behavior of the supervisor created a hostile work environment. The behavior ranged from touching, sharing his fantasies of sex in a Jacuzzi, to yelling.The Court also determined that Ms. Okoli showed that her rejection of the boss’s advances led directly to her firing. It deemed “deeply suspicious” the fact that the plaintiff’s boss fired her “only hours after she culminated her rejection of him by complaining to the Mayor.” It also permits the retaliation case to go to trial.
The entire panel agreed that the unwelcome overtures and outright requests for sexual conduct amounted to sexual harassment. The concurring opinion discussed the ambiguity of the evidence that tied her job to her acceptance of the sexual advances. It also gave more credit to the City’s claim that the plaintiff was scheduled to be fired even before she complained to the Mayor. The important point, however, is that the jury should be able to decide whether the reasons for her termination were pretexts, given to cover up the discriminatory conduct.
It is still difficult for plaintiffs to get to trial in employment discrimination cases. But the Fourth Circuit has changed over the last few years, and this decision may be a harbinger of fewer cases decided without a trial.
Posted by marykeating on August 15, 2011 under Federal wage and hour law, retaliation |
The Fourth Circuit just ruled against a claim by an applicant for a job who was rejected because she previously sued a former employer. The Court held that the Fair Labor Standards Act protects current and former employees only, and therefore she had no viable claim of retaliation.
In this case, the plaintiff was offered a job, contingent on passing a drug test and transferring her security clearance. In the security clearance form, she had to list pending cases, which is how the new employer found out about the lawsuit. It withdrew the offer. Because she never started work with the new company, its retaliation was not illegal under the law, according to the decision.
The dissent argued that the definition of the word “employee” was not so free from doubt, and could be stretched to cover the plaintiff, particularly in light of the law’s intent to protect workers. In fact, the law imposes criminal penalties for acts of retaliation. In addition, there is precedent that unpaid trainees qualified as employees.
Employees who experience discrimination and retaliation have many issues to consider before suing their employers. Unfortunately, one of them is whether a new employer will hold that lawsuit against them.
Posted by marykeating on August 13, 2011 under Federal wage and hour law, retaliation |
The Maryland federal district court just ruled on a claim by workers who were fired after making claims that they were not being paid appropriately. (Randolph v. ADT Security Services, Inc.) The employees filed claims with the State of Maryland, which requested backup documentation to support the charges that their employer, ADT Security Services, was not calculating their commissions correctly. The documentation included detailed information about the company’s customers and their security system installations.
Upon learning of the claims filed with the State, the company suspended and then fired the workers, stating that they had violated the terms of the company’s confidentiality policy by disseminating the information outside of the company. They sued for retaliation, and wrongful termination.
The District Court made an important distinction between employees who participate in their own claims of illegal activity, and those who oppose illegal activity, by helping others in their claims. The first group has a higher level of protection from interference. The opinion states: “While protected activity under the opposition clause must be ‘reasonable,’ the Fourth Circuit has specifically refused to apply any reasonableness requirement in the participation clause context.”
Often this distinction comes up in the context of complaints that might be only marginally related to an allegation of race discrimination, for example. There is a fear that any fired employee could recharacterize statements or conduct as protected activity. So if an employee raises an issue about conduct that does not involve him personally, the complaint must be reasonably related to a violation of the law, and the conduct is viewed under a reasonableness standard. Therefore, releasing confidential documents may be unreasonable under the circumstances when the employee releasing the documents is not making a personal complaint.
When the employee is making a complaint about her own situation, however, “reasonableness has no place” in the analysis.
The Court pointed out that permitting employees to be retaliated against for using “confidential” documentation would harm employees with the best cases. Those employees with convincing documentation, if not allowed to use it, would be hamstrung solely by a policy that prevents them from taking documents that are used to establish their pay. The Court pointed out that this could not only lead to abusive policies, but also intrusive investigations by agencies that enforce the discrimination and wage payment laws.
Posted by marykeating on May 19, 2011 under Maryland wage law, Pending legislation, Unemployment compensation, retaliation |
Here is another update on new laws signed by the Governor.
HB 1228 tweaks the unemployment law to allow for the maximum chance of getting full federal funding of extended unemployment benefits. To meet federal standards, the state law needed to alter the definition of an economic downturn triggering the extnsion.
SB 551 prohibits an employer from retaliating against an employee making an oral or written complaint, or testifying in an action relating to Maryland’s wage laws. The law clarifies that taking adverse action in retaliation means not just firing the employee but demoting, or threatening to fire or demote the employee, or taking any other adverse action “that would dissuade a reasonable employee from making a complaint, bringing an action, or testifying in an action under” the law. A violation of the law is a misdemeanor.
HB 211 changes the name of the Maryland Commission on Human Relations to the Maryland Commission on Civil Rights, effective October 1.
Posted by marykeating on April 7, 2011 under retaliation, sexual harassment |
The Fourth Circuit recently allowed a woman’s sexual harassment case to proceed to trial. The District Court had entered judgment without a trial in the employer’s favor, which was held to be legally erroneous on appeal.
In Hoyle v. Freightliner, LLC, a worker in a truck plant complained on numerous occasions of her coworkers putting up pictures of scantily clad women in sexually demeaning poses, putting a similar screensaver on her computer, putting a tampon on her key ring, and similar conduct. Although the company said it would “look into” the conduct, nothing seems to have been changed. The worker was first reassigned to janitor duty, then fired for excessive absenteeism, which she claimed was retaliation for making the complaints.
The Fourth Circuit said “A juror could reasonably find that sexualizing the work environment by placing photos of nude women or women in sexually provocative dress and poses in common areas is detrimental to female employees and satisfies the ‘because of sex’ requirement.”
It did uphold the dismissal of the retaliation and discrimination charges relating to her reassignment and discharge, however. Although the treatment of her could reasonably be seen as retaliatory, the employer showed a legitimate nondiscriminatory reason for its actions. Since the employee had failed to show that men had been treated better, when they were in trouble for absences, she cannot bring that claim to trial.
Posted by marykeating on April 2, 2011 under retaliation, sexual harassment |
The Court of Appeals just decided a case involving a claim of harassment and retaliation. The plaintiff worked for a hotel, and reported to a man named Ahmed who had been rehired after having been terminated several years before. According to the complaint, many people had complained about the supervisor’s sexual harassment, assault, battery and discrimination during his first stint with the hotel. Upon his return, he asked the plaintiff to help him identify those who had complained about him, so he could fire them in retaliation. Mr. Ahmed also rehired a manager who sexually harassed the plaintiff. He discouraged her from continuing to complain about the harassing behavior. When she continued, and accused him of retaliating, he fired her.
The case will go back to trial because the jury was given the wrong instruction on retaliation.
The Court also resurrected the plaintiff’s claim that rehiring Ahmed was negligent. The Court of Appeals decided that if retaliation is a motivating factor in the decision to fire someone, it is illegal. The jury had been told that only if retaliation is the determining factor could they decide for the plaintiff.
This may seem like splitting hairs, but the opposite is the case. Most employers come up with some reasonable sounding explanation for a firing. Sometimes they do so right away, and sometimes after suit is filed, but most employees can be accused of something that violates a policy. (In this case it was “insubordination” and a bad attitude among other things – both are consistent with someone frustrated over having her complaints of sexual harassment ignored.) The adoption of the “motivating factor” standard is a big step forward.
