Tag: Supreme Court Decision
U.S. Supreme Court Decides Fair Labor Standards Act Anti-Retaliation Provision Reaches Oral (and Not Just Written) Complaints
On March 22, 2011, the U.S. Supreme Court held in Kasten v. Saint-Gobain Performance Plastics Corp., that retaliation under the Fair Labor Standards Act, can be based on oral complaints, not just written ones. The Court rejected the employer’s argument that oral complaints are too indefinite to provide an employer with fair notice that an employee is engaging in protected activity.
Facts of the Case: The plaintiff employee believed that the location of the defendant employer’s time clock was illegal under the FLSA because it prevented employees from receiving fair compensation for the time they spent changing in and out of work clothes. The employer had an ethics policy that imposed on employees the obligation to report suspected violations of the law and an internal grievance resolution procedure that instructed employees to immediately contact their supervisor with “questions, complaints, and problems.” The employee claimed that he “raised concerns” with his supervisor that the location of the time clocks was “illegal” and that he also advised human resources personnel (a generalist and the HR manager) that the company would “lose in court” if a legal challenge were brought about the time clock location. He also told his lead operator that he was “thinking about starting a lawsuit about the placement of the time clocks.” The employee claimed that his subsequent discharge from employment was because of these complaints. He sued under the FLSA’s anti-retaliation provision and his claims were dismissed on summary judgment. The trial court, affirmed by the U.S. Court of Appeals for the Seventh Circuit, concluded that the FLSA, which prohibits retaliation against employees because they “file any complaint” required a written filing with a government agency.
The Court’s Ruling: A divided Supreme Court held that the FLSA covers oral complaints, but declined to rule on the related question of whether a complaint must be made to the external authorities rather than solely to the employer. (The Court majority deemed that latter question to have not been raised by the employer.) In concluding that oral complaints are covered, the Court rejected the notion that the statute clearly specified by the use of the term “file” that complaints had to be in writing. The Court reasoned that filings can be oral or written, depending on the context, and thus the language of the statute did not resolve the question on its face. The Court then looked to the purpose of the FLSA, which was intended to prohibit labor conditions detrimental to the general well being of workers, and the population that the law intended to protect, which at the time of passage included numbers of illiterate workers. The Court, however, acknowledged that employers have a right to receive “fair notice that an employee is making a complaint that could subject the employer to a later claim of retaliation.” The Court thus held that a complaint “must be sufficiently clear and detailed for a reasonable employer to understand it, in light of the content and context, as an assertion of rights protected by the statute and a call for their protection.” The dissent would have held that only complaints filed with external authorities (be they oral or written) are protected by the FLSA, given the language, structure, and content of the law. The dissent chided the majority for declining to address an issue implicit in the majority’s holding – whether intra-company complaints are protected – given that the majority’s opinion “assumes a ‘yes’ answer – and … makes no sense otherwise.”
Lessons Learned: The Court has expanded the class of individuals who can claim that they were subject to retaliation for protected complaints, given that purely oral concerns may be later characterized by an employee as such. The Court has indicated, however, that an employee’s complaint must be sufficiently definite to give the employer fair notice. Employers should consider adopting policies that encourage employees to reduce to writing complaints that concern matters of significance so that appropriate action can be taken. Such policies would also warn employees that to the extent they are unwilling, for any reason, to make a written complaint, they need to direct their concerns to responsible individuals within the organization designated to respond to complaints so that appropriate action can be taken. While a policy may not, by itself, limit what communications will suffice to serve as “fair notice,” a policy designating line-level supervisors as persons authorized to receive complaints may give rise to an inference that complaints to them about FLSA-covered matters constitutes “fair notice.” Finally, supervisors should be instructed to immediately report to human resources or other higher management any concerns or complaints from employees that appear to challenge the legality of a policy or practice.
Article courtesy of Worklaw Network firm Shawe Rosenthal.
On January 24, 2011, the United States Supreme Court unanimously held in Thompson v. North American Stainless, LP, that Title VII allows for “association retaliation” claims by individuals who have not themselves engaged in protected activity but are “associated” with someone who has. A cause of action for association retaliation has not been recognized previously, and this decision represents a fundamental change in the law.
FACTS OF THE CASE
Plaintiff Eric Thompson and his fiancée, Miriam Regalado, were employees of North American Stainless (NAS). In February 2003, the EEOC notified the employer that Regalado had filed a charge of discrimination alleging sex discrimination. Three weeks later, NAS fired Thompson. Thompson then filed a charge with the EEOC and, subsequently, a lawsuit, claiming that NAS fired him in order to retaliate against his fiancée. The trial court granted summary judgment in favor of NAS, concluding that Title VII does not permit third party retaliation claims. The Sixth Circuit affirmed that decision, and Thompson appealed to the U.S. Supreme Court.
THE COURT’S RULING
The Supreme Court held that Thompson can bring a cause of action for retaliation even though he was not the one who engaged in protected activity.
First, the Court held that NAS’s firing of Thompson constituted unlawful retaliation. Relying on the broad definition of retaliation set forth in Burlington N. & S. F. R. Co. v. White, the Court stated that a reasonable worker would be dissuaded from engaging in protected activity if she knew that her fiancée would be fired for her actions. The Court declined, however, to identify a fixed class of relationships for unlawful third-party retaliation claims and noted that “the significance of any given act of retaliation will often depend upon the particular circumstances.”
Then, the Court addressed the question of whether Thompson had a cause of action against NAS. Title VII provides that “a civil action may be brought . . . by the person claiming to be aggrieved.” The Court applied the common usage of the term “person aggrieved,” as interpreted in cases involving the Administrative Procedure Act. In those cases, the Court has held that a plaintiff may not sue unless he “falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” The Court concluded that Thompson fell within the zone of interests protected by Title VII because he was not an accidental victim of the retaliation; rather, injuring him was the employer’s intended means of harming the employee who filed the charge of discrimination.
Justice Ginsburg wrote a concurring opinion, joined by Justice Breyer, noting that the EEOC has a longstanding view that association retaliation is actionable under Title VII. Justice Kagan took no part in the decision.
Until this case, “association retaliation” was not recognized by the courts. This ruling opens the doors to additional claims of retaliation by employees who have not, themselves, engaged in any protected activity, but have some relationship to the an employee who has. Accordingly, employers should use caution when disciplining employees who are relatives, spouses, or even close friends of an employee who has exercised his or her rights under Title VII.
To read the case in it’s entirety go to http://www.supremecourt.gov/opinions/10pdf/09-291.pdf.
Article courtesy of Worklaw Network firm Shawe Rosenthal.
On June 17th, 2010, a divided US Supreme Court held that the National Labor Relations Board (NLRB) lacked authority to act when three of its five seats were vacant, a decision with the potential to invalidate more than 600 decisions issued by the NLRB over the past 27 months. The 5-4 decision in New Process Steel, LP v. NLRB is expected to have far reaching implications for employers.
The Two-Member NLRB
The NLRB decides cases arising under the National Labor Relations Act, which governs relations between organized labor and private employers. Normally, the Board is comprised of five Members, but its authorizing statute, 29 USC §153(b), provides that the power to issue decisions may be delegated to a quorum of three Members. In late 2007, the Board was comprised of four Members – Wilma Liebman, Peter Schaumber, Peter Kirsanow and Dennis Walsh. Before Member Walsh’s term expired near the end of 2007, the four Members delegated their powers to Members Liebman, Schaumber and Kirsanow as a three-Member quorum. On December 31, 2007 Member Kirsanow’s term expired, which left only a two-Member Board composed of Chairman Liebman and Member Schaumber.
The remaining two Members took the position that they still retained statutory authority to issue decisions because they represented a two-member quorum of the three-member group to which the Board’s powers had been properly delegated. Further, the remaining two Members also contended that it was in the public’s interest to avoid a shut-down of the Board by allowing the two-Member Board to continue to decide cases.
The Court’s Decision
The Supreme Court disagreed with these arguments. Writing for the majority, Justice Stevens stated that Congress has the power to change the NLRB’s statutory authority and authorize a two-member Board, but “until it does, Congress’ decision to require that the Board’s full power be delegated to no fewer than three members, and to provide for a Board quorum of three, must be given practical effect”. The full text of the Court’s decision can be read here.
Impact of the Court’s Decision
According to a June 17, 2010 press release from the NLRB Office of Public Affairs, losing parties have sought Federal Court review of dozens of the two-Member Board’s decisions. Other cases involving the same challenge to the Board’s authority are still pending before the Federal Courts: five are before the Supreme Court, and 69 others are before the lower appellate courts.
The Board expects that these will now be remanded to the current, four-member Board for reconsideration. The Board has not stated, however, what action it will take regarding the decisions issued in cases that were not appealed to the Federal Courts on the grounds that the two-Member Board lacked authority to issue decisions. It remains to be seen whether those decisions will also be subject to reconsideration by a proper quorum of at least three Board Members. Such a process would tie up the Board with old cases for years to come. Employers who may be inclined to celebrate that potential outcome today should temper that by remembering that the now four Member Board has two additional Union-friendly Members appointed by President Obama, so the outcome of any such reconsideration could end with the same, or more onerous, results.
Article courtesy of Worklaw® Network firm Bullard Smith.