Ads, News Stories -- the Employee Free Choice Act is Serious Business

Although it made a short lived run in this Congress, the improperly named Employee Free Choice Act, will quite likely be in the headlines on a regular basis next January and February. Although clearly it depends on the outcome of the election, my guess is that there will be an attempt to get it to the new President's desk as quickly as the Family Medical Leave Act made it to President Clinton's. Fortunately, I don't think that's likely.

Unlike the EFCA, the FMLA had been in the works for a long time. Here's a brief history from the political blog, The Personal Is Political:

1. Senator Chris Dodd is generally credited as being the author of the FMLA. He wrote and introduced a version of it in 1986, six years before Bill Clinton ran for president and seven years before Clinton took office.

2. It was a long slog to get the FMLA passed. The Senate would have passed it under Reagan but because there was a threatened presidential veto and a filibuster it was pulled.

3. Then Congress passed it twice during George H.W. Bush’s presidency. It was vetoed both times.

4. When Bill Clinton ran for office in 1992, he promised he would sign this legislation.

5. After Clinton was elected, the Congress took this up quickly, in part to show that they and the new president could break the Washington gridlock and could get things done.

6. The Family and Medical Leave Act, H.R.1 and S.1, was passed by the House on February 3 and by the Senate on February 4. While they had passed it twice before, because this was a new Congress, they needed to pass it again.

7. Fulfilling his campaign promise to sign the bill that had been authored by Dodd and vetoed twice by the former president, the FMLA was the very first piece of legislation signed by President Clinton.

That was two weeks and two days after his inauguration, a record that will be hard to top.

But there is no question that it is at the top of organized labor's agenda. That's why even during the legislative "off season" business group's are already running ads and unions are busy denouncing them. The NAM's blog, Shopfloor had an interesting report on the battle in Maine, Card Check: But What About the Substance? which also has a link to the ads themselves, click here.

Why Maine? My guess is that it's because that's where two moderate Republican senators, Olympia Snowe and Susan Collins live. In this year's EFCA cloture vote, both Senator Snowe and Senator Collins voted against cloture. The vote was 51 - 48, which indicates that there is still a lot of work to go before EFCA will just sail through Congress.

However, Senator Collins is up for re-election and can't be too thrilled about having to talk about that vote in an election season where Senator Obama is almost sure to carry Maine.

That advertising about a specific piece of legislation is not only being run but fought over six months before it will likely be voted on again in Congress in the relatively small state of Maine gives you a hint about the stakes involved. Employers should take heed.

This Can't Be Good for the Workplace

This lead from a CNN story, Why some folks get a loan workout and others don't caught my attention:

More than 3,000 times daily, struggling homeowners call the foreclosure Help Hotline for advice on how to save their homes.

There is no question that pressures at home often carry over into work. Summer with its distractions and hot weather can often make for a less than optimum work environment, if these headlines keep up, you can bank on it this year.

5th Circuit View on Retaliation Under the FLSA

No question that FLSA is the hot topic labor and employment circles these days, although most of that attention is focused on collective actions. Last week, the 5th Circuit took up another area, one of those rare cases of "first impression" -- what constitutes retaliation under the "complaint" portion of the anti-retaliation statute in the FLSA. Hagan v. Echostar Satellite LLC (5/30/08) [pdf].


That section of the FLSA provides it is illegal for an employer to:

discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.

The case reached the Court on an appeal by a discharged employee. The trial court granted a direct following a mistrial. The employee, a supervisor, claimed the protected activity was his passing to the human resources department a question from the technicians he supervised about whether a change in policy that would lead to less overtime was legal. Since he was terminated for the way he handled the implementation the new practice whether that action was "protected activity" was crucial.


The district court made three legal findings before applying them to the facts:

1. "even an informal, internal complaint could constitute protected activity under the FLSA,"


2. in order to be protected employee the employee must have “stepped out of his role as an Echostar field service manager, either to complain to his employer in behalf of the technicians, or in his own behalf, about a supposed violation or irregularity under or related to the FLSA,"


3. and that the FLSA "protects employees engaged in otherwise protected activity if that employee possesses a good faith belief that the employer had violated the law."

The 5th Circuit, in an opinion joined by one of its newer members, Judge Leslie Southwick, noted that the 2nd Circuit had taken a more restrictive view than the district court did and would not extend FLSA protection to informal complaints. It refused to take that view, instead going with the district court and what it viewed to be the majority rule in other courts. It did note that it was important that the complaint be about the legality of an action.

The Court also accepted the district court's 2nd premise, that the employee must be doing something other than his job, here being an intermediary between his employees and human resources, which was one of the functions of a manager. A different holding would otherwise mean a whole class of employees, managers, hr and legal, would be protected for just doing their job.

The Court found givenn that Hagan could not meet either of the first two principles, it did not need to address the good faith argument and so, in an appropriate act of judicial restraint, it did not.

I don't think this case represents a land mark shift in the 5th Circuit's view of employment cases generally, but I do think it is an indicator that it is not now a court that automatically looks for the most harsh outcome for employees, if in fact it ever was. Although here the employee lost, the standard which the Court articulates for the first time seems to be a clearly correct and mainstream, as well as less employer friendly than at least one of its sister circuits.

Make That Retaliation Three, Employers Zero - Another MDV

Although chronologically the verdict came before the two Supreme Court decisions I mentioned yesterday, I just read this Boston Globe headline this morning, Ex-Cambridge city worker is awarded $4.5m in suit. A good reminder on the heels of the Supreme Court decisions, as if we needed one, that retaliation cases carry great weight with juries. Here, the jury award was more than $4.5 million, with $3.5 of that being punitive damages.

In fact there are a lot of interesting aspects to this case that can be gleaned just from this short story:

• The plaintiff, Malvina Monteiro, a Cape Verdean, was one of four women who filed discrimination complaints against the City of Cambridge. The initial claim was filed in September, 1998. She resigned in September 2003 after the City told her they intended to fire her.
• In a 2005 trial, Monteiro lost her discrimination claim but the jury deadlocked on the retaliation claim.
• The final action that led to her termination was a violation of a City policy because she took daytime classes at Tufts University before she filed her complaint of discrimination. The City said it first learned of that violation when she gave her deposition in the discrimination complaint.
• Monteiro was quoted after the trial as saying she had a million thoughts (irony intended?), but one stood out the most: "I got my dignity back."
• The spokesperson for the City after the trial was the City Manager, also the individual alledly responsibile for the retaliation.

Lots of lessons that can be learned from just those few nuggets.

Kudos to James Vaznis who wrote the article for getting this small, but critical point correct:

Judge Bonnie H. MacLeod-Mancuso has not yet ruled on the verdict and its dollar amounts. (emphasis added)

Supreme Court Scoreboard: Retaliation 2, Employers 0

Today the Supreme Court issued two employment related decisions -- holding that there is a cause of action for retaliation under 42 USC § 1981, CBOCS West, Inc. v. Humphrey (S.Ct. 5/27/08) and that federal employees who claim age discrimination are also protected against retaliation for doing so, Gomez v. Potter (S.Ct. 5/27/08).

It is hard to be too surprised by CBOCS West. Although § 1981 does not mention retaliation, in light of the Supreme Court finding retaliation under Title IX in the same circumstances three years ago, see Whistleblowing in the Supreme Court,A Good Day, it would have been more surprising if the decision had gone the other way.

Pile on top of that the unanimity in agreeing that § 1981 prohibited retaliation by all the appeals courts which had decided the question and the impact is negligible, except in the sense of one that employers thought might help, got away. Perhaps more interesting is that the two justices who were not around for the Title IX decision, C.J. Roberts and J. Alito, were aligned with the 7 person majority and J. Kennedy switched his view, leaving only J. Thomas to dissent, joined by J. Scalia.

The basis for the decision emphasized by Justice Breyer -- stare decisis. An argument that J. Thomas was less than enamored with:

Unable to justify its holding as a matter of statutory interpretation, the Court today retreats behind the figleaf of ersatz stare decisis. The Court’s invocation of stare decisis appears to rest on three considerations: (1) Sullivan’s purported recognition of a cause of action for retaliation under §1982; (2) Jackson’s (re)interpretation of Sullivan; and (3) the Courts of Appeals’ view that §1981 provides a cause of action for retaliation. None of these considerations, separately or together, justifies implying a cause of action that Congress did not include in the statute. And none can conceal the irony in the Court’s novel use of stare decisis to decide a question of first impression.

If as many think, there is a strong possibility that the next Congress will do away with the statutory caps of Title VII, today's decision in CBOCS West would be of even less importance, just a timing blip. What may be of longer term significance is the 7-2 majority, which was the same in both cases and the Court's view on the importance of stare decisis.

The first is significant to employers in contemplating how employment decisions may fare at the Supreme Court level in light of the 7-2 alignment. The second -- the view of stare decisis, given its potential impact on Roe v. Wade may well be the most significant thing to come from this decision.

Update: Mea culpa. The breakdown on the decision in Potter was not 7-2, but 6-3 with C.J. Roberts actually writing the dissent. Although since it was about federal employers, I just skimmed the decision, I should have been much more careful in what I wrote. Probably many of my fellow commentators caught it, but the first that I read that jumped out at me was Brian Peterson's post at the West Virginia Legal Weblog. Although it's not quite as good a story maybe as the 7-2 alignment in both cases would have been, perhaps it is as significant that J. Alito was actually the author of Potter majority opinion. And even better, it's accurate.

Hello GINA: Our Newest Friend

As an employment law blog, it seems almost mandatory that I post about the newest labor and employment law, which would be the Genetic Information Nondisclosure Act, signed into law by President Bush yesterday. For some reason I can't get excited about it.

Maybe I am still mellow from the two weeks in France, maybe because I thought I was going to be in trial this week and we got bumped to a future setting, maybe it's because it's not effective for 18 months, maybe it's because I don't really see the problem as I am not aware of any employers that are doing genetic testing or using the information, or maybe it's because I think the real impact will be on insurance companies which is more likely to affect me as an insured than as a lawyer representing employers.

Maybe it's knowing that I am going to be barraged for 18 months with doomsday writings about how the newest cause of action is going to mean the end of the world as we know it. Who knows why?

Which probably means I am setting myself up for a big surprise. Just for example

• the remedies are the same as Title VII which means damages are now capped, but if the damage cap goes away for Title VII, it will for GINA as well;
• it has an extremely broad definition of genetic information which includes not only genetic test information but "the manifestation of a disease or disorder in family members," which I suppose could include a comment about an employee's mother having breast cancer or father having a heart attack;
• it prohibits obtaining and disclosing such information, subject to some exceptions, which means at a minimum more confidentiality obligations on employers that are easier to implement than maintain; and
• the regulations are due a year from now which means that they will be written by a new Administration still finding its way, and from an employer standpoint, a fair chance it will be a less friendly administration than the current one.

So who knows. Fortunately, some of my colleagues at Ogletree Deakins have paid more attention than me and you can see their initial analysis here.

In the meantime, I am not going to get too excited about it until after Memorial Day, and it may well be Memorial Day 2009.

A Belated Happy Blog Anniversary

I am late, but five years of doing this is a remarkable accomplishment.

Hat's off to Michael Fitzgibbon at Thoughts from a Management Lawyer.