The U.S. Department of Labor provides general information and compliance guidance regarding numerous wage, hour, employment, and labor laws via “fact sheets” which are available to employees, employers, and the general public. Fact sheets can serve as helpful reference and compliance material for employers. On December 23, 2011, the DOL issued three new fact sheets on the issue of unlawful retaliation.  These newly released fact sheets address retaliation under the Fair Labor Standards Act (“FLSA”), the Family and Medical Leave Act (“FMLA”), and the Migrant and Seasonal Agricultural Workers Protection Act (“MSPA”).

Continue Reading U.S. Department Of Labor Issues New Retaliation Fact Sheets

The Fair Labor Standards Act, 29 U.S.C. 215(a)(3) ("FLSA") forbids an employer from retaliating against an employee for making prior FLSA complaints.  Simple concept, one would think.  But with most employment related legal issues, the "devil" is often in the details.  What is an "employee," exactly, under the FLSA?  Does it include an applicant for employment, who is retaliated against by a prospective employer?  A divided panel of the U.S. Court of Appeals for the Fourth Circuit recently ruled that the answer is "no," rejecting a claim that a prospective employer violated the FLSA by rescinding an employment offer to an applicant after learning about a FLSA lawsuit the applicant filed against her prior employer.  Dellinger v. Sci. Applications Int’l Corp., 2011 U.S. App. LEXIS 16635 (4th Cir. Aug. 12, 2011).

Continue Reading No Retaliation Claim For Applicants Under The FLSA

On August 8, 2011, the Second Circuit issued a decision in Millea v. Metro-North Railroad Co., taking an expansive view of the Family and Medical Leave Act’s (“FMLA”) anti-retaliation provision.  Turning to Title VII for guidance, the Court held that the jury should have received an instruction that broadly defined the term “materially adverse action.”

Continue Reading The Second Circuit Broadens The FMLA’s Anti-Retaliation Provision

A recent Tenth Circuit decision sends a strong message that the court takes seriously the jurisdictional prerequisite that plaintiffs exhaust their administrative remedies in a Title VII claim prior to taking a claim to court.  The process to do so is well-known — before an employee can file a lawsuit alleging discrimination against his or her employer, he or she must file a charge with the U.S. Equal Employment Opportunity Commission (“EEOC”).  Requiring individuals to exhaust their administrative remedies prior to filing a lawsuit serves, hopefully, to eliminate facially meritless charges, facilitate internal resolution, and help avoid litigation.  This is often the case, as many charges filed with the EEOC never end up on a court’s docket.  But what happens if the parties are already enmeshed in litigation and the plaintiff claims that the defendant’s conduct during the course of that litigation is retaliatory?  Can the plaintiff amend his or her complaint to include that allegation?  Or must he or she go back to the EEOC and file a charge for that claim?  In McDonald-Cuba v. Santa Fe Protective Services, Inc., the Tenth Circuit held that the latter is true.  No. 10-2151 (10th Cir. May 9, 2011).  The Fourth came down the other way in a similar case.

Continue Reading Procedure Rules: Actions Arising During Course Of Litigation Require EEOC Charge

The 2010 fiscal year was a busy one for the EEOC as employees filed a record number of charges.  See A Year In Review: EEOC Charges & Trends.  This wave of charges is historic — not just because of the number of charges filed, but also because of the evolving trends in the types of claims made. Unfortunately for employers, these trends will likely continue in 2011 and beyond.

Historically, the most common types of claims filed were those of race and sex discrimination. Although these particular types of claims remain prevalent (the number of both race and sex discrimination claims increased in 2010), other types of claims are emerging at an alarming rate due to recent changes in the legal landscape.

Continue Reading As The EEOC World Turns In 2011

On January 4, 2011, President Obama signed the FDA Food Safety Modernization Act (FSMA), which seeks to promote food safety by enacting strict safety standards in the food industry. In addition to the enactment of safety standards, Section 402 of the FSMA ensures sweeping protections for whistleblowers in the industry. The FSMA whistleblower protection applies to any “entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food.” The anti-retaliation provisions protect any employee of a covered entity who provides to the employer, the federal government, or the Attorney General of a State information that the employee reasonably believes constitutes a violation of the FSMA; testifies or is about to testify about any such violation; assists or participates in any such proceeding; or objects to or refuses to participate in any activity that the employee reasonably believes is a violation of the FSMA.

Continue Reading Whistleblower Provisions Of Food Safety Modernization Act

Expanding on our December 21 post, the U.S. Equal Employment Opportunity Commission on January 11, 2011, announced that private sector workplace discrimination charge filings reached the “unprecedented level” of 99,922 during fiscal year 2010, which ended on September 30, 2010.  According to the data, all major categories of charge filings in the private sector, including charges against state and local governments, increased significantly.

Continue Reading Is The Bad Economy Fueling Employment Discrimination Claims?

Committees in both the House and the Senate heard testimony this week regarding the Protecting Older Workers Against Discrimination Act (H.R. 3721 and S. 1756).  Democrats introduced the Act last fall with hopes of restoring employees’ rights under the Age Discrimination in Employment Act (“ADEA”) by overturning the Supreme Court’s decision in Gross v. FBL Fin. Servs. Inc., 557 U.S. __ (2009).

Continue Reading Proposed Protecting Older Workers Against Discrimination Act May Alter Other Discrimination And Retaliation Statutes

A panel of the U.S. Court of Appeals for the Ninth Circuit recently held in Alvarado v. Cajun Operating Company, that compensatory and punitive damages are unavailable to a  plaintiff who brings an ADA retaliation claim.  Consistent with a prior Seventh Circuit ruling  in Kramer v. Banc. of Am. Sec., 355 F.3d 961 (2004), the Alvarado Court found that the ADA specifically excludes a retaliation claim under Section 12203 from awards of  compensatory and punitive damages.  The court reasoned that Section 1981(a)(2) of the ADA does not list claims brought under section 12203 as one of the enumerated categories of claims meriting compensatory and punitive damages.  Since the statute specifically enumerated other claims under the ADA where punitive and compensatory damages are proper remedies, the court found that Congress intended for those claims, and not those under Section 12203, to get punitive and compensatory damages as a remedy.  In addition, the court held that since ADA retaliation claims are only subject to equitable relief, no jury trial is available.

Continue Reading An ADA Retaliation Claim Does Not Warrant Compensatory and Punitive Damages

As a recent decision by the U.S. Court of Appeals for the Fourth Circuit makes clear, the fact that an employer prevailed against an employee’s Sarbanes-Oxley claim in an administrative proceeding cannot be used to bar a new trial of the claim in federal court.  The U.S. District Court for the District of Maryland dismissed a former employee’s SOX lawsuit on the ground that it was precluded by an administrative law judge’s granting of the employer’s motion for summary decision.  The Court of Appeals, in a ruling of first impression, held that the lower court erred and vacated its dismissal in Stone v. Instrumentation Lab Co., 4th Cir., No. 08-1970, 12/31/09.

Continue Reading ALJ’s Decision in Employer’s Favor Does Not Preclude Employee’s New Sarbanes-Oxley Lawsuit in Federal Court