Roy’s Analysis of Quirky Question # 183, Retaliating Against an Applicant Who Previously Sued Under the FLSA
Quirky Question # 183:
We recently made an offer to an applicant for an important job at our company. The offer was conditioned on a satisfactory background check and her passing our standard drug test. She had no problem with the drug test. But, when we did the background check, we discovered that she had sued her former employer for violations of the Fair Labor Standards Act. Based on that fact, we want to pull the offer. Do you see any problems with that decision? Are we buying litigation?
Roy’s Analysis:
You ask whether you are “buying litigation” if you reject an otherwise qualified candidate for employment solely because you have discovered that she previously sued a former employer for alleged violations of the Fair Labor Standards Act (FLSA). In one important respect, your question is incomplete. Another way to frame your inquiry is whether you are “buying litigation you cannot win?” Whereas you may be setting your company up for a lawsuit by withdrawing your conditional job offer, this is a lawsuit that you can and should win. Before addressing that topic more specifically, let me flag a few other issues for your consideration.
First, why is it so important to you that your applicant previously sued a former employer for FLSA violations? Have you concluded that this fact alone makes it more likely that she will institute litigation against your company? If so, why?
It could be that her former employer did violate the FLSA. Perhaps her former employer did not pay her, or other employees, the minimum wage. Perhaps her former employer did not provide overtime compensation for hours she or others worked over 40 each week. Perhaps her former employer misclassified her as an exempt employee to avoid the overtime obligation? Assuming that any of these hypotheticals were true, and she sought redress for these statutory violations, why would those facts disqualify her from working for your company?
Although, as discussed further below, you may not have a legal obligation to explore these issues, you might want to gain a better understanding of the facts that precipitated her prior litigation. Did she try to rectify the statutory violations before initiating suit? Did the employer admit that it had ignored key FLSA provisions? Did the lawsuit settle promptly? Did she prevail in the litigation? Or, conversely, was the lawsuit frivolous and quickly dismissed? In this last context, I could understand your concern about retaining the former disappointed litigant. In the former fact patterns, not so much. Read more
Kasten v. Saint-Gobain: Supreme Court Rules on Oral FLSA Employee Complaints
[Readers: The U.S. Supreme Court has decided several important employment law cases during March. Set forth below is an analysis of the Saint-Gobain decision, written by my colleague, Ben Weeks. If you have any questions regarding this analysis, please don't hesitate to contact Ben or me. Ben's direct line is 612.492.6157 and his email is weeks.benjamin@dorsey.com. Additional information regarding Ben is available at: http://www.dorsey.com/benjamin-weeks/. I hope you find this analysis helpful.
Next week, we will publish an article about the "Cat's Paw" decision, also rendered by the U.S. Supreme Court earlier this month. Regards, Roy]
Kasten v. Saint-Gobain: Supreme Court Rules That Oral Employee Complaints Are Afforded FLSA Retaliation Protection
By: Ben Weeks
Introduction
On March 22, 2011, the United States Supreme Court issued its long-awaited opinion in Kasten v. Saint-Gobain Performance Plastics Corp., __U.S.__, No. 09-834 (Mar. 22, 2011), holding that oral complaints are sufficient to support retaliation cases under the federal Fair Labor Standards Act (“FLSA”).
The Court’s decision has potentially significant implications beyond the FLSA, as several other federal statutes—including the Occupational Safety and Health Act (“OSHA”), the Migrant and Seasonal Agricultural Worker Protection Act, and the Clean Air Act—include similar language in their anti-retaliation provisions. Of particular importance to employers, the holding reaffirms a best practice for employee complaints: Pay attention to all employee complaints, regardless whether they are oral or written.
Background
Kasten, a former employee in Saint-Gobain’s Portage, Wisconsin facility, received repeated warnings, and ultimately was terminated, for violating company policy requiring hourly employees to clock in and out of work. See Kasten v. St. Gobain Performance Plastics Corp., 570 F.3d 834, 836 (7th Cir. 2009). Following his termination, Kasten filed a lawsuit alleging that he was discharged in retaliation for making oral complaints to his supervisors and human resources personnel that the location of the company’s time clocks prevented employees from recording their time spent “donning and doffing” protective gear. See id. at 835-36. Read more
Associational Discrimination: Supreme Court Decides Thompson v. North American Stainless
On January 24, 2011, the United States Supreme Court decided the case of Thompson v. North American Stainless, LP, No. 09-291. The Court unanimously (8-0, with Justice Kagan recusing herself) reversed the 10-6 en banc decision from the Sixth Circuit. The Supreme Court held that Title VII’s anti-retaliation provision reached a Charging Party’s fiancé. The decision’s significant practical ramifications are discussed at the conclusion of this article.
Background Facts
The facts of this case are straightforward. The defendant company, North American Stainless (NAS) terminated one of its employees, Miriam Regalado. She filed a Charge of Discrimination with the EEOC, claiming that she had been discharged on the basis of gender in violation of Title VII’s prohibition against sex discrimination. Three weeks after Regalado filed her Charge, NAS also terminated her fiancé, Eric Thompson. Thompson then independently filed a Charge of Discrimination with the EEOC, claiming that he was a victim of retaliatory conduct by NAS.
Procedural Posture
The District Court for the Eastern District of Kentucky granted NAS summary judgment, concluding that Title VII “does not permit third party retaliation claims.” The Sixth Circuit initially reversed this determination, but following a rehearing by the entire intermediate appellate court, the en banc court flipped the panel’s determination and affirmed the District Court’s dismissal of the case. The Sixth Circuit concluded that because Thompson did not “engag[e] in any statutorily protected activity, either on his own behalf or on behalf of Miriam Regalado,” he “is not included in the class of persons for whom Congress created a retaliation cause of action.” (I previously analyzed the Sixth Circuit’s opinion in an earlier Blog posting; see Quirky Question # 99, Retaliation Against Fiancé.)
The Supreme Court granted review of the Sixth Circuit’s decision. For the purposes of the Supreme Court’s analysis, the Court assumed that NAS had fired Thompson to retaliate against Regalado for filing her Charge of Discrimination. The Supreme Court evaluated two related questions: did NAS’s firing of Thompson constitute unlawful retaliation; and, if it did, does Title VII provide Thompson a cause of action? Read more
Lawyer Whistleblower Ethics – A Difficult Duty
[Readers: Yesterday, I posted an article on the recent Kidwell v. Sybaritic, Inc. decision from the Minnesota Supreme Court. As I referenced in the final practical pointer in the analysis, the decision does implicate a number of interesting ethical issues. My colleague, Bill Wernz, who was the former Executive Director of the Office of Lawyers' Professional Responsibility, has just written an article for Minnesota Lawyer (July 12, 2010, Vol. 14, No. 28) that focuses on just these ethical issues. With approval from Minnesota Lawyer, Bill's article is reprinted below. If you have any questions regarding Bill's analysis, don't hesitate to contact him at wernz.william@dorsey.com or at 612.340.5679. Regards, Roy]
In-House Counsel as Whistleblower, Kidwell vs. Sybaritic, Inc.
The Minnesota Supreme Court finally has ruled on Kidwell v. Sybaritic, Inc., Nos. A07-584 and 788 (June 24, 2010), the “in-house counsel as whistle-blower” case that was pending before it for more than 18 months. Unfortunately, the Court’s ruling has not brought clarity to this area of the law.
I previously discussed this case in a Blog entry in August 2008 (to see the earlier analysis, use the “View by Topic” bar to the left, scroll down to “Retaliation” and go to Quirky Question # 50). My analysis of the latest pronouncement from the Minnesota Supreme Court is set forth below. Please contact me if you have any questions. Regards, Roy
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