Adria Richards is a self-described “endlessly enthusiastic technology evangelist.” While attending a large technology conference in Santa Clara, California, Ms. Richards overheard two men sitting behind her making a series of crude, sexually inappropriate jokes (click here for a link to Ms. Richards’ blog entry titled Forking and Dongle Jokes Don’t Belong at a Tech Conference). She tweeted “not cool,” and asked for help in talking with the offending men. The conference sponsors agreed with her, and spoke with the men. One of the men took to Twitter on Ms. Richards’ behalf, tweeting that she "had every right to report me to [conference] staff, and I defend her position.”
Supreme Court Leaves Intact Decision Refusing to Extend the Fair Labor Standards Act's Anti-Retaliation Provision to Prospective Employees
The Supreme Court has refused to consider the issue of whether the Fair Labor Standards Act’s anti-retaliation provision applies to prospective employees. Its refusal leaves intact a Fourth Circuit Court of Appeals decision extending the FLSA anti-retaliation provision to current and former employees only and barring such claims by prospective employees. You can read our previous entry on the Fourth Circuit’s decision here. We will provide further updates as other courts weigh in on this issue over time.
Retaliation claims are here to stay. According to charge statistics recently released by the EEOC, retaliation claims rose to an all-time high of 37,344 in fiscal year 2011, and were included in 37.4% of all charges filed with the agency. Recent developments lead us to conclude that this trend will continue, in 2012 and beyond.
In December 2011, the U.S. Department of Labor (“DOL”), Wage and Hour Division (“WHD”), released guidance pertaining to prohibitions against retaliation under the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”).
In a case of first impression, the United States Court of Appeals for the Eleventh Circuit recently held that the Family and Medical Leave Act (“FMLA” or the “Act”) protected a pregnant worker who was fired after she requested leave, despite the fact that she was not eligible for FMLA leave when she made the request, because she would have been eligible at the time the leave was to have been taken. The case, Pereda v. Brookdale Senior Living Facilities, Inc., is an important case for employers to heed.
In a case of first impression, the Department of Labor’s Administrative Review Board (ARB) finds that the meaning of the term “adverse action” under the whistleblower protection provisions of the Sarbanes-Oxley Act (SOX) is substantially broader than the meaning of the same term under Title VII, and found that the employer’s disclosure of the whistleblower’s identity in violation of the employer’s own confidentiality policy was an adverse action. This employee-friendly decision reflects the DOL trend towards expanding employees’ workplace rights.
First, the background.
The Fourth Circuit Court of Appeals recently dismissed a Fair Labor Standards Act retaliation claim where the plaintiff alleged that the defendant refused to hire her because she had sued her previous employer for wage and hour violations. In Dellinger v. SAIC, the Fourth Circuit reasoned that because the Fair Labor Standards Act (FLSA) only permits “employees” to sue their “employers” for retaliation, an employer cannot retaliate against someone they never actually hired as an employee. The result would likely have been different had the case been brought under Title VII rather than under the FLSA- unlike the FLSA, Title VII specifically prohibits discrimination and retaliation against applicants for employment.
Second Circuit Analyzes Scope of Material Adverse Employment Actions in a Family Medical Leave Act Retaliation Claim
Written by Michael Arnold
Last week, the Second Circuit Court of Appeals in Millea v. Metro-North R.R. Co., --- F.3d ----, 2011 WL 3437513 (2d Cir. Aug. 8, 2011), found that a “material adverse employment action” in the context of a Family Medical Leave Act (“FMLA”) retaliation claim need not be all that “material” .
The FMLA entitles eligible employees to take unpaid, job-protected leave for certain family and medical reasons and prohibits employers from retaliating against an employee exercising their FMLA rights. In Millea, the plaintiff claimed his employer retaliated against him by, among other things, issuing a formal reprimand after he took medical leave to recover from a panic attack.