Wyatt Employment Law Report

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Retaliation Still the Most Filed Charge with the EEOC: How Employers Can Guard Against Costly Retaliation Claims

By Sharon Gold

The EEOC released its fiscal year charge data and for another year in a row, retaliation is the most filed charge.  Behind retaliation are charges for race, disability and sexual discrimination.  The full list of charge data is:

  • Retaliation: 41,097 (48.8 percent of all charges filed)
  • Race: 28,528 (33.9 percent)
  • Disability: 26,838 (31.9 percent)
  • Sex: 25,605 (30.4 percent)
  • Age: 18,376 (21.8 percent)
  • National Origin: 8,299 (9.8 percent)
  • Religion: 3,436 (4.1 percent)
  • Color: 3,240 (3.8 percent)
  • Equal Pay Act: 996 (1.2 percent)
  • Genetic Information: 206 (0.2 percent)

[These percentages add up to more than 100 because some charges allege multiple bases.]

Any employer who has been through litigation concerning a retaliation claim knows Continue reading

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EEOC Proposes Updated Guidance to Address Increasing Number of Retaliation Claims

By Michelle D. Wyrick

With retaliation again reigning as the most frequently filed charge with the Equal Employment Opportunity Commission (“EEOC”) and retaliation charges having doubled since 1998, the EEOC has proposed updated guidance on retaliation. It seeks input on its proposed guidance through February 24, 2016. Comments may be submitted here in letter, email or memoranda format, or hard copies may be mailed to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507. The EEOC’s proposed guidance, which is more than seventy pages long, updates the EEOC Compliance Manual on Retaliation, which was issued in 1998.

The guidance explains the elements of a retaliation claim under federal anti-discrimination statutes and gives examples of what an EEOC investigator might look for in connection with a retaliation charge. Federal equal employment opportunity (“EEO”) laws preclude employers from Continue reading

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Whistleblowers Can Now File Complaints Online With OSHA

By Edwin S. Hopson

The U.S. Department of Labor’s Occupational Safety and Health Administration recently announced that whistleblowers covered by any one of 22 statutes administered by OSHA can now file complaints with the agency online.

“The ability of workers to speak out and exercise their rights without fear of retaliation provides the backbone for some of American workers’ most essential protections,” said OSHA Director Dr. David Michaels in an agency press release. “Whistleblower laws protect not only workers, but also the public at large and now workers will have an additional avenue available to file a complaint with OSHA.”

Currently, employees can make complaints to OSHA by filing a written complaint or by calling the agency’s 800 number or by calling an OSHA regional or area office. With this change, employees can now electronically submit a whistleblower complaint to OSHA by visiting www.osha.gov/whistleblower/WBComplaint.html.

The new online form prompts the worker to include basic whistleblower complaint information so they can be easily contacted for follow-up. Complaints are automatically routed to the appropriate regional whistleblower investigators. In addition, the complaint form can also be downloaded and submitted to the agency in hard-copy format by fax, mail or hand-delivery. The paper version is identical to the electronic version and requests the same information necessary to initiate a whistleblower investigation.

The whistleblower provisions of 22 statutes protect employees who report violations of various securities laws, trucking, airline, nuclear power, pipeline, environmental, rail, public transportation, workplace safety and health, and consumer protection laws.

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FLMA Claim Dismissed Based On Employee’s Violation of Employer’s “Call-in” Policy

By Michael D. Hornback

The U.S. Court of Appeals for the Sixth Circuit has dismissed a former employee’s Family Medical Leave Act (“FMLA”) interference claim because the employee failed to utilize her former employer’s call-in procedure related to absences. 

In Ritenour v. State of Tennessee Department of Human Services, 497 Fed. Appx. 521 (6th Cir. 2012), the plaintiff was initially hired as a interim employee, but later became a full-time Clerk with the Tennessee Department of Human Services (“TDHS”).  A few months after becoming a full-time employee, the plaintiff determined that she needed to take a leave of absence from her position to care for her son who suffered from a multitude of physical and mental health issues, including a bipolar disorder, suicide attempts, and behavior problems.  Thereafter, the plaintiff and her superiors had several conversations with regard to her request for leave; however, no leave was actually granted by TDHS.  Despite the plaintiff being absent from her employment for several weeks, the plaintiff and TDHS ultimately agreed that she would return to work on September 8, 2008.  Plaintiff was provided a copy of the employee handbook which detailed the necessary steps to take in order to request a leave of absence, including the requirement that such leave request be put in writing.  Plaintiff alleged that she put her request in writing; however, her superiors did not receive it.

The Plaintiff did not report to work from September 22 through 25, 2008 and she was ultimately terminated for job abandonment, which was defined as being absent from duty for more that three consecutive business days without giving notice to management and without securing permission to be on leave.  Additionally, the TDHS employee handbook required employees to personally notify their superior(s) by telephone if they were going to be late for or absent from work.  The plaintiff did not utilize this “call-in” procedure for her absences in September, 2008.

The plaintiff subsequently filed suit against TDHS, alleging interference with her right to take intermittent FMLA leave and retaliation under the FMLA.  The U.S. District Court for the Middle District of Tennessee granted summary judgment in favor of TDHS, finding that, even assuming the plaintiff was entitled to take FMLA leave, there was no dispute that she failed to contact her supervisor related to her absences in September, 2008.

The Sixth Circuit affirmed the dismissal of plaintiff’s claims, finding that it was undisputed that plaintiff failed to follow TDHS’ “call-in” procedure and the enforcement of the job abandonment policy was not related to plaintiff’s request for FMLA leave because the policy applied to employees who are absent from work without approval for any reason. 

It is also worth noting that the Sixth Circuit relied upon its previous decision in Allen v. Butler Cnty. Comm’rs, 331 Fed. Appx. 389 (6th Cir. 2009), in which it found that an employer could terminate an employee on FMLA leave for violating the more stringent requirements of a concurrently run paid sick leave policy, which included a “call-in” requirement.  The Allen court noted that because the “call-in” procedures established the obligations of employees on any type of leave, whether pursuant to FMLA or not, the employer therein was not liable for interfering with the employee’s right to take FMLA leave.


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Department of Labor Issues Proposed New Rules Governing Whistleblower Proctections Under the Affordable Care Act

By Douglas L. McSwain

The interim Final Insurance Market Reform Rule under the Affordable Care Act (ACA) came out this past week, and included the employment non-discrimination/whistleblower protection provisions.  This rule could very well become one of the most litigious employment law developments in some time. Employers are prohibited from discriminating against any employee who complains in good faith that an employer is not providing healthcare coverage benefits in compliance with the ACA.  Employers and their insurers are also prohibited from discriminating against employees who participate in any complaint to a state or federal official about the perceived inadequacies of the employer’s coverage of health benefits, and, critically important, against any employee who chooses to go into the insurance exchange to purchase individual health coverage (thereby triggering, for any “large” employer, exposure to a tax penalty if it has failed to provide its employees “affordable” and at least 60% actuarially-valued, coverage). 

Employees may bring a complaint of discrimination (i.e., “blow the whistle” on an employer) within a 180-day limitations period by lodging an oral or informal written complaint (in letter-form or otherwise) with the U.S. Occupational Safety and Heath Administration (“OSHA”).  Under the new rule, reinstatement or front pay is available as remedies, as well as backpay, attorneys fees, expert fees, costs, etc.  If reinstatement is ordered, it must be done immediately pending appeal unless infeasible, in which event, front pay is awardable.  If a prima facie discrimination case is made out by an employee, the employer bears a “clear and convincing burden,” in effect, to disprove that any adverse employment action would have been taken in any event (interesting burden-shift here, and perhaps of questionable validity).  On the other hand, for frivolous or bad faith employee-filings, employers may be awarded up to, but no more than, $1,000 in attorneys fees against a frivolous-filing employee. OSHA filings are exhausted in the administrative setting before an Administrative Law Judge, and appeals are to the U.S. Court of Appeals. However, if a complaint remains unaddressed by OSHA for over 210 days, the case may be initiated by a filing in federal district court, subject to de novo review. 

These are significant developments in employment and employee benefits law. You may find the proposed new employment rules on the DOL’s website regarding the non-discrimination/whistleblower regulations: http://www.dol.gov/find/20130222/OSHA2013.pdf

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Supreme Court Validates Third Party Retaliation Claim

By Edwin S. Hopson

Eric Thompson and Miriam Regalado met while they both worked for North American Stainless (“NAS”) in Carroll County, Kentucky, and they became engaged to be married.  Regalado filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) against NAS claiming discrimination on account of sex.  Some three weeks after NAS was notified of Regalado’s Charge, NAS fired her fiancée.  Thompson filed a Charge with the EEOC alleging retaliation and later sued in federal court. 

Thompson lost in both the U.S. District Court for the Eastern District of Kentucky and the U.S. Court of Appeals for the Sixth Circuit, which ruled en banc that Thompson was not entitled to sue for retaliation because he had not been the person who engaged in the protected activity under the statute.

On January 24, 2011, in Thompson v. North American Stainless, 562 US ____ (2011), No. 09-291, the U.S. Supreme Court, in a unanimous decision authored by Justice Antonin Scalia, ruled that the discharge of Thompson because his fiancée had filed a charge of discrimination under Title VII of the Civil Rights Act entitled Thompson to file his own retaliation charge under that statute.  Thus, a so-called “third-party retaliation” claim has now been validated under Title VII.

Justice Scalia, writing for a unanimous court, except for Justice Kagan, who took no part in consideration of the case, reasoned that the anti-retaliation provision of Title VII must be construed to cover a broad range of employer conduct citing Burlington N. & S. F. R. Co. v. White, 548 U. S. 53 (2006). According to the Court, that provision prohibits any employer action that “ ‘well might have “dissuaded a reasonable worker from making or supporting a [discrimination] charge,” ’” id., at 68. Still citing Burlington, the Court stated that the test must be applied in an objective fashion, to “avoi[d] the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective feelings.” Id., at 68–69. Applying this objective test, the Court found that a reasonable employee would clearly be dissuaded from engaging in protected activity if she knew that her fiancé who was also an employee would be fired.

The Court sympathized with the argument that employers must now attempt to identify if someone about to be discharged has a close relationship with someone else in the workforce who has engaged in protected activity before taking adverse action that could expose it to a third party retaliation claim.  After rejecting that argument, it stated:

“We must also decline to identify a fixed class of relationships for which third-party reprisals are unlawful. We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.”  Slip Opinion, page 4.

The Court, in analyzing Thompson’s Title VII standing, ruled that the term “person aggrieved” must be construed more narrowly than the outer boundaries of Article III of the Constitution, notwithstanding dictum to the contrary in Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205 (1972).  However, the Court went on to hold that at the other extreme, limiting “person aggrieved” to the person who was the subject of unlawful retaliation is too narrow a reading.  Thus, the Court decided upon a common usage of the term “person aggrieved” so as to avoid both of extremes.

Citing the Administrative Procedure Act, which authorizes suit to challenge a federal agency by any “person. . . adversely affected or aggrieved . . . within the meaning of a relevant statute,” 5 U. S. C. §702, the Court found this established a regime under which 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,” Lujan v. National Wildlife Federation, 497 U. S. 871, 883 (1990).  The Court concluded:

“We have described the “zone of interests” test as denying a right of review “if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke v. Securities Industry Assn., 479 U. S. 388, 399–400 (1987). We hold that the term “aggrieved” in Title VII incorporates this test, enabling suit by any plaintiff with an interest “arguably [sought] to be protected by the statutes,” National Credit Union Admin. v. First Nat. Bank & Trust Co., 522 U. S. 479, 495 (1998) (internal quotation marks omitted), while excluding plaintiffs who might technically be injured in an Article III sense but whose interests are unrelated to the statutory prohibitions in Title VII.”  Slip Opinion, page 7.

Applying that test to Thompson, the Court found that he fell within the zone of interests protected by Title VII and that hurting him was the unlawful conduct by which the employer had punished his fiancée who had engaged in the protected activity of filing the Title VII Charge of Discrimination.

 Justices Ginsburg and Breyer concurred, and simply added that, “[t]oday’s decision accords with the longstanding views of the Equal Employment Opportunity Commission (EEOC), the federal agency that administers Title VII.”  Concurring Opinion, page 1.

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Wage and Hour Update: Retaliation

By George J. Miller

It is common practice for employers to “get it in writing” when conducting workplace investigations.  However, when it comes to employees complaining about wage and hour violations, a new court decision cautions against this practice.  In a case involving a Saint Gobain Performance Plastics plant in Wisconsin, a federal appeals court has held that employees who orally complain about what they believe are violations of wage and hour law, but do not put their complaint in writing to management, cannot pursue a claim for retaliation in court if they are later disciplined or discharged and believe this action was taken because of their earlier complaints.

In the Saint Gobain case, the employee was progressively disciplined and eventually discharged for improperly clocking in and out on the company’s Kronos time clock system.  After he was discharged, he filed suit alleging that his discipline and discharge were actually in retaliation for oral complaints he made to his supervisors and Human Resources that the location of the time clocks illegally prevented employees from being paid for time spent donning and doffing required protective gear. 

The trial court dismissed his case because his workplace complaints were not in writing, and the court of appeals affirmed.  In so ruling, the court of appeals joined one other federal court of appeals which had ruled the same way in another case.  In other federal jurisdictions, the issue is still unresolved.  So watch for further developments on this issue. 

 In the mean time, employers should be cautious about asking employees to put complaints about wage and hour violations in writing.