Over the last decade, a number of employment cases have reached the United States Supreme Court claiming retaliation against employees.  These plaintiffs had previously claimed violations of wage and hour, Title VII, age discrimination and various civil rights laws which apply to the workplace.  The same Court that has made it more difficult for employment plaintiffs to maintain claims of workplace discrimination has been very expansive of the rights of employees who complain of retaliation.

The most recent case decided by the Court earlier this year resulted in a unanimous decision with an opinion written by one of the most conservative Justices (Scalia).  In Johnson v. North American Stainless, the plaintiff had not complained of workplace illegality in any form.  His fiancé had done so.  However, three weeks after a sex discrimination claim was filed by his fiancé, Johnson was fired.  Lower courts held that Title VII did not cover alleged retaliation against someone who was merely associated with an employee who complained.  Unexpectedly, the United States Supreme Court found that Title VII protects employees if retaliation is based on their association with someone who complains of illegal discrimination.

In fact, employees are making significantly more claims under the retaliation theory.  A record number of retaliation claims were filed with the EEOC in 2010, roughly 50% more than in 2000.

Employers must be vigilant to assure that adverse employment actions are completely unrelated to the claims employees might have made for wage and hour, discrimination or any other allegation of legal impropriety in the workplace.  Due diligence requires an employer to routinely inquire about the employee’s possible participation in any form of whistleblowing before a negative employment decision is made or communicated.

Whistleblowers are not immunized from termination decisions.  However, the scrutiny placed on employer actions taken against employees who have complained previously about legal concerns is significantly greater than other employment claims.

Be certain the evidence justifying termination is totally independent of any legal claim previously made before taking adverse action against employees who complain, participate in or are associated with employees who raise legal complaints in the workplace.  Be careful to avoid taking action against employees only after they have complained.  Defensible terminations are supported by well-developed documentation which follows the employer’s procedures, precedents and practices leaving no question about the employer’s legal business related motivations.

So, beware.  The DOL has just made it easier for employees to build their case, especially if they can legitimately argue that your recordkeeping system is not trustworthy.  While the DOL does not indicate how it can determine whether what an employee enters on either the app or the printable time sheet is accurate or dependable, remember that it is the employer that has the burden of proof.  Not only is it the employer’s responsibility to keep accurate records, it should also be your goal.  Being able to show that employees follow your recordkeeping procedures, that there is limited access to time records with a limited number of users who can make adjustments to these records, and that any and all changes can be and are tracked is essential to defending a claim by an employee that he has worked more hours than he has been paid.  Even with all that, it will be telling to see how this new technology comes into play when there is a disparity between an employers records and the information contained on his phone. 

By Karen Smith, Member
Miller & Martin PLLC
ksmith@millermartin.com | (423) 785-8209

Although over 600 employees of Howard Industries proved to be illegal, they all presented documentation which federal prosecutors claimed were clearly fraudulent and should not have been relied upon.  Continuing to hire workers after Social Security verifications failed to pass muster established the required knowledge that led to criminal prosecution.  The court discounted Gonzalez’ defense that he was just doing what his superiors ordered.

USA v. Gonzalez, 2:09-cr-00009, U.S. District Court for the Southern District of Mississippi

Larry Bridgesmith, Of Counsel
Miller & Martin PLLC
Suite 1200, One Nashville Place
150 Fourth Avenue North
Nashville, TN 37219
lwbridgesmith@millermartin.com | (615) 744-8580

The facts of the case are as follows: Plaintiff’s supervisors going two levels up the chain of authority were allegedly hostile towards Plaintiff’s military service obligations. The supervisors gave the plaintiff a disciplinary warning and reported a violation of the terms of the warning. Another manager, three levels up the chain of command reviewed the personnel file and made the termination decision. The plaintiff alleged the underlying discipline had been fabricated as a result of the hostility towards his military service obligations.

The jury found in favor of the plaintiff, but the Seventh Circuit Court of Appeals reversed, finding that the (third level) decisionmaker had relied on more than the tainted disciplinary decisions of the two lower supervisors. The Supreme Court reversed.

USERRA prohibits discrimination based on an employee’s military service record or obligation for additional service if that service is a motivating factor in a challenged employment decision. Relying on general principles of agency and tort law, Justice Scalia, writing for the Court stated, “it is axiomatic under tort law that the exercise of judgment by the decisionmaker [the third level supervisor] does not prevent the earlier agent’s action (and hence the earlier agent’s discriminatory animus) from being the proximate cause of the harm.” The case was remanded, leaving open the possibility that the trial court’s jury instruction was harmless error.

The Court’s decision call’s into question a number of lower court decisions allowing employers to escape liability when it can be shown that factors beyond those allegedly tainted by discriminatory bias are part of the decision. The waters appear poised to remain muddied, as the application of general tort and agency theories leaves room for debate.

On appeal of their criminal convictions, the defendants argued that their sentence was too harsh because they had not engaged in extortion, but only blackmail.  The Court of Appeals disagreed, deciding that the two jobs which each paid the unqualified employees $150,00 in annual compensation were indeed “things of value”.

Accordingly, instead of reducing the six month prison sentence and two year probation, the court sent the matter back for harsher sentencing than the trial court had originally imposed.

Be careful what you ask for.

Larry W. Bridgesmith, Of Counsel

Phone: 615-744-8580

Suite 1200, One Nashville Place
150 Fourth Avenue North
Nashville, TN 37219

lwbridgesmith@millermartin.com

Melancholy Song Link

http://music.aol.com/video/everybody-hurts/rem/1869912

]]> http://www.wordonemploymentlaw.com/2011/01/hr-song-of-the-week-everybody-hurts/feed/ 0 http://www.wordonemploymentlaw.com/2011/01/supreme-court-title-vii-alert-who-says-scalia-is-anti-plaintiff/ http://www.wordonemploymentlaw.com/2011/01/supreme-court-title-vii-alert-who-says-scalia-is-anti-plaintiff/#comments Mon, 24 Jan 2011 18:29:13 +0000 jpdaniel http://www.wordonemploymentlaw.com/?p=21748 In February 2003, North American Stainless (NAS) received notice that Miriam Regalado had filed an EEOC charge against it. Three weeks later, NAS fired Ms. Regalado’s fiancée, Eric Thompson. Mr. Thompson thereafter brought a Title VII retaliation claim against NAS in federal court in Kentucky. The trial court granted summary judgment in favor of NAS on the theory that Title VII did not allow “third party retaliation claims.” That decision was ultimately affirmed by the Sixth Circuit Court of Appeals. Earlier today, however, the U.S. Supreme Court reversed the Sixth Circuit and held 8-0 (the majority opinion was drafted by Scalia, with Kagan not participating) that Mr. Thompson’s suit could proceed even though it was not he who had engaged in protected activity under Title VII. A link to the decision is below. Bottom line — In 2006, the Supreme Court adopted a pretty broad standard for what types of employment actions could be retaliatory under Title VII. The Court has now used some of the rationale from that decision to essentially prohibit “associational retaliation.”

• The union membership rate for public sector workers (36.2%) is substantially higher than the rate for private sector workers (6.9%). 
• Workers in education, training, and library occupations have the highest unionization rate at 37.1%.
• Black workers were more likely to be union members than were white, Asian, or Hispanic workers.
• Among states, New York had the highest union membership rate (24.2%), and North Carolina had the lowest rate (3.2%).

You can get what amount to an audio summary of the state of organized labor here (http://www.youtube.com/watch?v=ZarmRLa2p9Q), although the report itself (http://www.bls.gov/news.release/pdf/union2.pdf) is very accessible.

Songs that could lead to a citation -

http://www.youtube.com/watch?v=KW2J_UZ8lQU

http://www.youtube.com/watch?v=RBA-xi8WuCU

Song with an other than serious risk of injury-

http://www.youtube.com/watch?v=eZGWQauQOAQ