Posted by marykeating on March 24, 2011 under Wage and hour issues, retaliation | 
Employment practitioners have been waiting for a long time for the Kasten V. Saint-Gobain Performance Plastics Corporation decision. That case arose under the Fair Labor Standards Act, which governs wages and overtime issues, among other things. Kevin Kasten complained orally, several times, about his company’s practice of putting the time clocks in a place that the employees can’t reach until they have put on the protective gear required for their jobs. Under the law, the employer has to pay them for the time they spend putting on and taking off the gear, but this company did not. After Mr. Kasten’s complaints, he was fired.
The Supreme Court had to resolve the issue whether an oral complaint was enough to invoke anti-retaliation protection. Unlike the laws prohibiting race and sex discrimination, the FLSA uses the word “filed” in connection with a complaint. After reviewing different definitions of filed, the Court turned to the reason for the anti-retaliation protection. Justice Breyer wrote “Why would Congress want to limit the enforcement scheme’s effectiveness by inhibiting use of the Act’s complaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate, less educated, or overworked workers? President Franklin Roosevelt pointed out at the time that these were the workers most in need of the Act’s help.”
While employers worry that oral complaints present problems of whether the right people get notified, it is important to recognize the effect of a rule that everything has to be in writing. Once employees are trained that they must lodge written complaints, the workplace will get less flexible and friendly. An oral complaint to a supervisor or, as in Mr. Kasten’s case, the company’s ethics hotline, should be enough to alert the company to determine whether it needs to investigate further. Had the company here done that, and realized it had to pay employees differently, it would not have been in the Supreme Court (not to mention all the other courts where other employees may have sued it).
Posted by marykeating on January 24, 2011 under retaliation |
The Supreme Court has decided the retaliation case reported on here earlier. In a unanimous opinion, in which Justice Kagan did not participate, the high court held that an employer retaliates illegally when it fires a fiancé of an employee who filed a complaint of discrimination. The fired employee had lost in trial court, on the basis that he was not the person who had been the subject of the discriminatory conduct. The Supreme Court disagreed, and continued its trend of protecting the rights of people to object to discrimination, on behalf of themselves or others. The opinion says:
“We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”
I think it should have been obvious that this kind of retaliation should not be legal, since, as the Court noted, “injuring him was the employer’s intended means of harming Regalado.” It is good to have this settled, though.
Posted by marykeating on December 24, 2010 under Government contractors, retaliation |
Although the lame duck Congress did a good amount of work before closing for the year, and the session, not everything passed. The Senate was unable to extend the protections for federal whistleblowers. On the evening of December 22, the bill was put on hold.
The major difference between the two versions of the bill related to the inclusion of employees in the intelligence community. Probably Wikileaks has something to do with it. On the other hand, some whistleblowers who have suffered for speaking out argue that the new law would remove some of their existing protections, and leaves too much discretion in the agencies that engaged in the too-friendly behavior with contractors.
Whistleblower protection in the federal government should draw broad support. The first law was enacted after the government discovered that contractors had charged for inferior supplies to the Union army, resulting in soldiers finding their boots falling apart or their food inedible. The False Claims Act has given an incentive to whistleblowers identifying fraud on the federal government, in the form of a percentage of the recovery that the government reclaims from the fraudulent contractor. It has anti-retaliation provisions as well.
There would seem to be little support for the opposition, other than from fraudulent contractors. Yet, obtaining an effective whistleblower protection has been difficult. In reality, many whistleblowers find themselves ostracized, threatened, fired, and otherwise mistreated for doing the right thing. Moreover, many were denied the protections of the law when they discovered the fraud during the course of their regular duties, or when the government believed that the information provided was already known.
If the House and Senate versions are reconciled in the new session, a stronger whistleblower law will improve the way government operates by forcing the higher-ups to listen to people who would stop waste and fraudulent practices.
Posted by marykeating on November 18, 2010 under Federal wage and hour law, Sex-based discrimination, retaliation |
The Senate (which remains Democratic after the election) failed to pass the Paycheck Fairness Act yesterday. While the Senate had the votes to pass the measure, which passed the House 2 years ago, it lacked enough of a majority to invoke cloture, and shut down a Republican filibuster. The Republican argument is that this law would encourage litigation and impose damages on employers. The other side is that if an employer is discriminating against women in wage rates, it should have to answer for the disparity. The Equal Pay Act “has not worked as Congress originally intended,” according to the findings of the bill. Under the bill, employers who enforce secrecy about their employees’ wages could be liable for a retaliation claim. The White House and the Department of Labor issued statements registering their disappointment.
The Republican opposition argues that this law would encourage litigation and impose damages on small employers. Opponents also argue that the wage disparity is explained by “personal choices” (yes! Back to family responsibility discrimination!) that lead women to opt for part-time work more often than men, or take leaves from their career paths.
An interesting article addresses this popular belief, and dispels its logical force with data. After taking into account part-time work, length of employment, and other factors relating to the “mommy track,” the effect of discrimination is still stronger than the laws of supply and demand. One interesting example arises in the field of nursing. Nursing instructors (mostly women) earn less than males college instructors teaching other courses. The disparity is so great that nursing teachers earn less than nurses, therefore it is hard to fill the teaching positions. Hence, the nursing shortage.
Posted by marykeating on October 14, 2010 under retaliation |
The Supreme Court granted certiorari to a case involving retaliation against government employees. In Borough of Duryea v. Guarnieri, a local government asks the Supreme Court to reverse a decision in favor of its employees who sued for retaliation. Unlike many retaliation charges, which rest on the words of anti-discrimination statutes, this was brought as a constitutional claim. A police chief claimed that he was retaliated against for filing a grievance relating first to his termination (he was reinstated), and then from a grievance following his employer’s treatment of him after he was reinstated. Under the first amendment, citizens have the right to petition the government.
The local government raises the issue whether public employees should be protected from retaliation when they petition the government on “matters of purely private concern.” The petition for certiorari argues that most of the other federal courts that have spoken on the subject have separated issues of public concerns, which more centrally invoke free speech rights, from private matters, such as a person’s own job. The local government raises the specter that every employee who is disciplined will literally turn the issue into a federal case.
Parties often use the argument that the floodgates of litigation will open if a certain limit is not placed on the exercise of a right. In reality, it is not easy to maintain a federal lawsuit, and it is unlikely to be done on a whim. And in this case, the petition to the government was not a remark or voicemail message, but a grievance filed in accordance with procedures set up for those purposes. Still, this Supreme Court is hard to predict, with two new justices. Since certioari was granted so early in the term, the Court may get to the matter before June.
Posted by marykeating on October 4, 2010 under retaliation |
The Equal Employment Opportunity Commission filed a complaint against Fox News last week, in the District of Columbia’s federal court. The complaint accuses Fox of retaliating against a correspondent who had complained of sex and age discrimination policies at Fox. When it was time to renew her contract, Fox News presented a contract that mentioned her discrimination complaints, and was meant to stop her from pressing such complaints in the future. The reporter declined to sign the contract with that language. Fox refused to negotiate, until the following year, after the EEOC investigated.
A lawsuit claiming retaliation for making complaints can pack a powerful punch. Judges often have a better reaction to retaliation claims than to the discrimination charges that prompted them. Perhaps this is because they represent an attack on the citizen’s right to invoke the protections of a law, or to participate in someone else’s lawsuit.
Retaliation can take many forms, including firing, demoting, isolating, and attempting to make the workplace so harrowing that the employee quits. Sometimes an employer retaliates after the employee has left the employer. Employers need to be careful about reacting in a resentful manner about a claim of discrimination, even if it sincerely believes that the charge was baseless. Giving a bad reference, fighting against unemployment benefits and refusing to consider a person for may all qualify as retaliatory acts, prolonging the problem.
Posted by marykeating on July 31, 2010 under retaliation |
The Sarbanes-Oxley Act imposed higher standards of conduct on publicly-traded companies, to avoid massive stock fraud and other ills in complex companies whose shares traded on public exchanges. The Act also created a degree of protection for whistleblowing employees who had a reasonable belief that their company was violating the law. The problem in implementing the law was the “reasonable belief” part; that created incentives to challenge the employee’s belief and basis.
The law was revised by the Dodd-Frank Wall Street Reform and Consumer Protection Act, signed into law this month. Now, employees who complain to the Securities and Exchange Commission are automatically covered by the anti-retaliation provision. They are also entitled to double their back pay if the retaliation cost them their job. An employee who objects only within the company is protected from retaliation, but still must satisfy the reasonable belief standard. Finally, the law invalidates any effort to require claims to be arbitrated rather than go to court and be heard before a jury.
Naturally the hope is that employees, usually in the best position to detect fraud, will come forward to prevent the future Enron situations. The protection for internal complaints is helpful, too. Companies should reward employees for whistleblowing activities, given the stakes. Most employers would rather deal with problems internally rather than risk the SEC launching an investigation.
When the fraud is significant, however, the employee is best served by going directly to the SEC. The employee whose complaint leads to a recovery by the SEC is entitled to a share of the fine.
Posted by marykeating on July 5, 2010 under retaliation |
The Supreme Court granted certiorari to a case from the Sixth Circuit, agreeing to hear a case in which an employee was denied protection against retaliation. In that case, an employee complained of discrimination; shortly thereafter, the employer terminated the employment of her fiance. The Sixth Circuit had trouble with the issue, and divided nearly evenly. The petitioner’s brief seeking Supreme Court review points out how effective retaliation could be if an employer were free to punish the worker’s friends and relatives for making a complaint. In some towns, where major employers have a large proportion of the populace employed, the threat of such retaliation would deter most people from making a complaint for fear that people they cared about would suffer.
The EEOC and the National Labor Relations Board both recognize this kind of retaliation as illegal.
Legally, the issue comes down to whether impermissible retaliation focuses on an employer’s method of retaliation, at which point punishing a person’s fiance would clearly violate the law. Or it could focus on the complainer’s work experience, in which case the employee would be unable to show a personal injury if she were still employed and not demoted. The next question becomes whether either the fired worker or the complaining worker has the ability under federal law to sue. The Fourth Circuit says that the complaining worker may not file suit when the relative is fired.
This case is on next term’s docket, so the decision may not be released before next June.
Posted by marykeating on May 16, 2010 under retaliation |
The Maryland Court of Appeals issued an opinion last week in favor of a health care whistleblower. An employee had made internal complaints about serious safety issues at the hospice facility where she worked. She was fired before she could take the complaints further. Under the eight year old law protecting health care whistleblowers, the Court held that she had the right to a trial to prove that she was fired in retaliation for her complaints about the unsafe practices.
Under this particular whistleblower law, a health care employer must correct violations of the law that endanger the health and safety of patients. In addition, many employees, nurses among them, have personal obligations to report violations to the licensing board. In this case, the nurse complained to her supervisor about the lax oversight of narcotic dispensation. For example, “starter packs” of controlled pain medications had been delivered to families of pediatric patients without taking appropriate safeguards to ensure that other children in the house were protected.
Before the employee could go to the nursing board, she was fired. The Court of Appeals decided that it was counter-productive to require an employee to complain outside of the health care facility, if the complaint resulted in corrective action. In addition, the highest court rejected the argument that the employees engaging in the illegal behavior were not responsible for setting policy at the facility.
The case is limited to this specific statute, which details the requirements that the employee report the issue internally and give the employer a chance to correct the problem, and that the problem “poses a substantial and specific danger to the public health or safety.” Still, one statement of the Court is intriguing: it agrees with the commentary of Paul Tobias, a founder of the National Employment Lawyers Association, quoting the following passage:
“Although it would clearly seem to be in employers’ interest to encourage employees to report violations internally before (or instead of) making reports to governmental authorities, a number of courts that have addressed the issue have held that the public policy tort doctrine does not protect a whistleblower from retaliation unless he or she has gone outside the company with reports of wrongdoing.
“The majority (and better) view, however, is that internal protests are enough, and that the viability of a public policy tort claim by a discharged whistleblower does not depend on whether or not the violations or illegal activities were reported to outside authorities.”
Paul H. Tobias, Litigating Wrongful Discharge Claims § 5.13 (1987 & Supp. 2009-10)
The Court then stated: “We agree with that observation.” This statement may foretell a loosening of the difficult standard facing whistleblowers who do not fit the mold of the health care workers. For those workers, it has been the law that unless they go to an outside agency, that is report to the “appropriate authorities,” retaliatory firing is perfectly legal. Perhaps Maryland is ready to join the majority of states which do not require that outside report.
Posted by marykeating on May 11, 2010 under Religious discrimination, retaliation |
Chief Magistrate Judge Paul Grimm issued an opinion recently that dives into the murky waters of anti-discrimination laws and religious institutions. Under current law, religious institutions have some immunity from discrimination on the grounds of religious beliefs. They can insist upon employing “individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.” That is, a synagogue can refuse to hire a Baptist as its administrative assistant; it can fire an employee for a religious observance that conflicts with a work schedule.
But Judge Grimm drew the line at religious harassment. Lori Kennedy, a member of the Church of the Brethren, complained of being harassed and eventually terminated because she adhered to a certain dress code dictated by her religion. Having decided to hire a non-Catholic at a Catholic hospital, the institution was not permitted to harass an employee whose modest dress and head covering were called inappropriate in a Catholic institution. The court decided that the harassment is not permitted under Title VII, the federal anti-discrimination statute. 
An interesting twist involves the plaintiff’s claims for illegal termination. Her claim of religious harassment will go to trial. She also complained that she was fired in retaliation for complaining about the harassment, and in violation of her right to be free of religious discrimination. The latter claim fails. The Catholic church is free to fire her for her religious beliefs. But the retaliation claim survives, since it arises out of the harassment. Her damages are the same for either claim.
