Workplace Retaliation: The Employment Boomerang

Consider these recent headlines:

• February 23rd - Major construction firm to pay $110,000 to settle EEOC lawsuit for Retaliation
• February 22nd - Federal court refuses to toss out EEOC claim that company retaliated against employees
• February 3rd - Company to pay $85,000 to settle EEOC lawsuit for retaliation

Add to that, on January 24th the U.S. Supreme held that an individual who associates with an individual who engages in protected activity may be protected by Title VII's anti-retaliation provisions.  Here's the scenario, an employee filed a charge of discrimination against her employer. Three weeks after receiving notice of the charge from the EEOC, the employer fired the employee's fiancé, Thompson, who worked for the same company. Thompson then filed his own charge, claiming his termination was in retaliation for his fiancé's initial charge. The district court and the entire Sixth Circuit Court of Appeals ruled that Thompson could not raise a retaliation claim because at the time he was fired he himself had not filed a charge of discrimination. 

The Supreme court reversed the lower courts' opinions in a unanimous verdict holding, "Title VII's antiretaliation provision must be construed to cover a broad range of employer conduct...It prohibits any employer action that well might have dissuaded a reasonable worker from making or supporting a [discrimination] charge...A reasonable worker obviously might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired...Title VII grants Thompson a cause of action."  

The subject of workplace retaliation and litigation in this area is not new.  You may recall in 2008 the U.S. Supreme Court addressed the issue of whether "protected activity" included participation in internal workplace investigations and held that this was included as protected activity. And stay tuned as the next matter to be addressed by the high court is what protected activity means, under the Fair Labor Standards Act, and whether the protected activity of filing a complaint includes expressing oral complaints. 

What does it mean to engage in protected activity? What does it mean to take adverse employment action? What to learn more? You can view FiveL Company's February webcast by the same name for answers to these questions and more. Just $25 per person.  Click here and scroll down to "Archived Webcasts" to register (pre-approved by HRCI for 1.0 general credit hour).     

 Hot Hits!! Education Corner

Upcoming Public Speaking Engagements

Tuesday, March 15th, "Practice Your Passion: Advocacy as a Core Competency for HR Professionals" presented during SHRM's 2011 Employment Law & Legislative Conference, Washington, DC 10:45 - Noon. To be followed by a sale and signing of Ms. Walters' new book, "From Hello to Goodbye: Proactive Tips for Maintaining Positive Employee Relations." Coming soon.  

Thursday, March 17th, "Employment Law, Legislative & Regulatory Update," presented for HoCoHRS, Columbia, MD 8:30 -10:30 a.m.

NEXT WEBCAST: March 23rd - "Wage and Hour Woes: What's An Employer To Do?"  The U.S. Department of Labor's Wage and Hour Division's budget request for FY 2012 includes an increase of $13.3 million from FY 2011 including:

• an increase of 95 FTE's;
• initiatives to detect and deter the misclassification of workers as independent contractors;
• developing proposed rules for updating recordkeeping regulations;
• ...and more.

Join this interactive webcast as we review proactive practices and pitfalls to avoid when classifying workers as well as employees and current state trends in wage and hour administration.

This program is pre-approved by HRCI for 1.0 general credit hour. Click here to register.  

Use of this seal is not an endorsement by HRCI of the quality of the program. It means that this program has met HRCI's criteria to be pre-approved for recertification credit.

Wage & Hour Woes

Now consider these headlines! 

• February 17th - US Labor Department prevents shipment of goods produced by manufacturer due to FLSA violations (more than $138,000 in back wages secured(;
• February 16th - US Labor Department sues nail salons and company officers to recover overtime, back wages and damages;
• February 10th - Lawsuit seeks more than $1 million in back wages nationwide;
• February 10th - US Labor Department sues restaurant and owner to recover bck wages and damages;
• February 9th - US Labor Department recovers more than $104,000 in back wages from government contractor.

Heard enough? Believe me, I could go on with more headlines and even greater dollar amounts but you get the idea.  Enforcement of wage and hour violations has certainly not slowed. Of particular interest may be that of the five headlines above, individual corporate officers and business owners are also named in the lawsuits. You may have also read above that the US Labor Department is seeking a budgetary increase of $13.3 million over its last fiscal year; that's nearly six percent. 

I invite you to join FiveL Company's March 23rd webcast by the same title as we review proactive tips and pitfalls to avoid in classifying workers as independent contractors, classifying employees as exempt or non-exempt, and some state trends in wage and hour administration. Click here for more information about this webcast and other upcoming events.

Book Publication - Finishing Touches!

As of this writing we have put the finishing touches on the artwork for the book cover and SHRM is preparing the book for distribution.  You can read more about the book's purpose, content and read some testimonials here.

  This newsletter does not constitute the rendering of legal advice. For legal guidance on any particular issue(s) you should consult with your company's legal advisor or contact FiveL Company directly.