Supreme Court rules that retaliation includes participating in internal investigations

In a unanimous 9-0 decision, the U.S. Supreme Court held today that Title VII’s anti-retaliation provision covers employees who answer questions during employers’ internal investigations. The case is Crawford v. Metropolitan Gov’t of Nashville.

The case involved the termination of a 30-year employee who answered her employer’s questions during its investigation into a co-worker’s allegations of harassment against a different employee.

The Court found Crawford’s activity to be protected by the anti-retaliation provision’s “opposition” clause:

[N]othing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question….

If it were clear law that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others…. The appeals court’s rule would thus create a real dilemma for any knowledgeable employee in a hostile work environment if the boss took steps to assure a defense under our cases. If the employee reported discrimination in response to the enquiries, the employer might well be free to penalize her for speaking up. But if she kept quiet about the discrimination and later filed a Title VII claim, the employer might well escape liability, arguing that it “exercised reasonable care to prevent and correct [any discrimination] promptly” but “the plaintiff employee unreasonably failed to take advantage of … preventive or corrective opportunities provided by the employer.” Nothing in the statute’s precedent supports this catch-22.

Wile the Court went to great lengths to ground its decision in the statutory definition of “opposition,” this opinion really is policy driven. The Court is sending a clear message that it highly values internal workplace investigations. The message to employers is two-fold:

1. If an employee complains of discrimination or retaliation, investigate

   promptly and thoroughly; and

2. The investigatory process should include clear assurances to third-party witnesses that they will not be retaliated against for participating in the investigation.

Reverse age discrimination should not be a concern in layoffs

Last week, BusinessWeek ran the following headline: Employers Avoid Axing Oldies but Goodies. The crux of the story is that the current wave of layoffs is hitting younger employees much harder than in the past. Seniority is being protected because of legal concerns in laying off the over-40 set, and because of the need to keep experienced people in place to help navigate these difficult times. According to the article, hard numbers back this trend:

• Unemployment claims for those 55 and older jumped to 4.9% in December 2008, a 1.8% rise over the prior year.
• In contrast, for those aged 25-54 the rate climbed to 6.3% in December, a 2.3% jump from December 2007.
• Meanwhile, there are 2.8 million less people ages 25-54 employed in December 2008 as compared to December 2007.
• In contrast, there are 878,000 more employees age 55 and over employed this year as compared to last year.

Yet, the article ends with the following word of caution:

Still, companies must tread carefully to avoid showing favoritism based on age. They could wind up facing reverse-discrimination suits from younger workers who feel targeted.

Nothing could be further from the truth. In General Dynamics Land Systems v. Cline (2004), the U.S. Supreme Court conclusively ended the debate over whether one can bring a claim for reverse age discrimination. In that case, the employer provided retiree health benefits only to those people who were over age 50. 196 employees ages 40-49 claimed that since the contract expressly excluded employees between the ages of 40 and 49, providing benefits only to retirees 50 and over was illegal age discrimination. Thus, the Court was asked to decided if the ADEA prohibits “reverse discrimination” against workers over 40 by providing greater benefits to workers over 50 than to younger workers who are still over 40.

The Court rejected the notion of “reverse age discrimination.” The ADEA’s “text, structure, purpose, history, and relationship to other federal statutes show that the statute does not mean to stop an employer from favoring an older employee over a younger one.” According to the Court, the ADEA is “a remedy for unfair preference based on relative youth, leaving complaints of the relatively young outside the statutory concern.”

In structuring any layoff, it is always wise to verify that the affected group does not contain a disproportionate percentage of “protected group” employees. In conducting that analysis, though, one should not be concerned about whether the layoff disproportionately favors older workers over younger workers.

Ledbetter passes Senate – President’s signature is next

It’s looking like the Lilly Ledbetter Fair Pay Act will be the first piece of legislation President Obama will sign into law. The Washington Post reports that yesterday it passed the Senate by a vote of 61-36. The Washington Post goes on to quote Lilly Ledbetter, who said that she had spoken to the President following the Senate vote, and that “he has assured me that he will see me in the White House, hopefully in just a few days.”

For more the Ledbetter Act and its implications for employers, see Ledbetter Fair Pay Act likely to be first employment legislation of the Obama Presidency and Are we overreacting to Ledbetter?

WIRTW #63

If you check out only one other link this week, click over the Connecticut Employment Law Blog, where Dan Schwartz writes an Inauguration Day letter to President Obama on what he hopes to see for employers over the next four years.

In other Inauguration-related news, the Delaware Employment Law Blog shares some thoughts on work-life balance and Michelle Obama.

The Evil HR Lady answers a question on the pro-rating of exempt employees’ salaries based on the number of hours they work each week. If an employer prorates a salary based on the number of hours worked, the employee almost certainly isn’t exempt.

George’s Employment Blawg points out some common employment application mistakes.

The Word on Employment Law with John Phillips, with a nod to Execupundit, lists the top 7 reasons employees don’t go to HR. For what it’s worth, I’d re-rank the top 2 as fear of retaliation and fear of company bias.

LawMemo Employment Law Blog reports on the Supreme Court’s decision in Locke v. Karass, which held that a local union can lawfully charge nonmembers for national litigation expenses.

More lessons from children’s lit: Dr. Seuss

As either my wife or I do every night, our daughter was put to bed last night with a book (or four). On the list last night was one of my all time favorites, Green Eggs & Ham. As I was reading I got to thinking that given the adult themes Dr. Seuss weaved into his books, there must be some lessons for employers to take from his works. I came up with the following:

Horton Hears a Who teaches that employers should not ignore complaints by employees. If an employee raises a concern about harassment, it is best for the company to take the complaint seriously, investigate, and take whatever corrective action, if any, is necessary. It is far better to investigate and conclude that nothing is there than to ignore the complaint and have it blossom into a lawsuit.

And to Think That I Saw It on Mulberry Street, Dr. Seuss’s first children’s book, is about a boy who dreams up a wild story to tell his father when he gets some from a walk down Mulberry Street, but ultimately decides to simply tell him what he saw. For employers, the lesson is to deal openly and honestly with employees. Gossip runs rampant in every workplace, and it is better to quell rumors than to keep truths or even lie to employees. This lesson is especially relevant with the silent killer of card check union recognition potentially looming on the horizon.

The Cat in the Hat teaches that employers must know what it is the right time to cut bait with a troublesome employee.

Yertle the Turtle involves the king of the pond who commands the other turtles to stack themselves beneath him so that he can see, ignoring the turtles’ pleas for rest. The lesson for employers is to treat employees fairly.

The Sneetches, about shunning those who look different, teaches an important lesson about discrimination.

Finally, Fox in Sox teaches that sometimes you just have to have a little fun.

Unions should not bet on the EFCA as a sure thing

As President Obama was taking the oath of office, inside some office in some executive office building in Washington D.C., someone flipped a switch and turned on the new website for the White House. It is drastically different, as President Obama is becoming the first president to fully embrace the internet as a viable means to communicate with the public. It has all of the typical history, civics, and biographical information one has come to expect from the White House’s website. However, it also has extensive information on President Obama’s agenda for the next four years. You’ll find information on suggested changes to the FMLA and paid sick leave, proposed new laws to protect individuals from discrimination based on sexual orientation and gender identity, and his plan to stimulate the economy and create jobs.

What you will not find, though, is any mention of the Employee Free Choice Act. While it was featured prominently on Change.gov, the President’s transition website, it has been completely scrubbed from Whitehouse.gov. Perhaps this recent interview of President Obama by the Washington Post sheds some light on this curious omission:

Q: The Employee Free Choice Act - a timing question and a substance question: in terms of timing how quickly would you like to see it brought up? Would you like to see it brought up in your first year? In terms of substance, the bills that you talked about in your floor statement on the Employee Free Choice Act problems with bullying of [inaudible] people want to join unions. Is card check the only solution? Or are you open to considering other solutions that might shorten the time?

Obama: I think I think that is a fair question and a good one.

Here's my basic principal that wages and incomes have flatlined over the last decade. That part of that has to do with forces that are beyond everybody's control: globalization, technology and so forth. Part of it has to do with workers have very little leverage and that larger and larger shares of our productivity go to the top and not to the middle or the bottom. I think unions serve an important role in that. I think that the way the Bush Administration managed the Department of Labor, the NLRB, and a host of other aspects of labor management relations put the thumb too heavily against unions. I want to lift that thumb. There are going to be steps that we can take other than the Employee Free Choice Act that will make a difference there.

I think the basic principal of making it easier and fairer for workers who want to join a union, join a union is important. And the basic outline of the Employee Fair Choice are ones that I agree with. But I will certainly listen to all parties involved including from labor and the business community which I know considers this to be the devil incarnate. I will listen to parties involved and see if there are ways that we can bring those parties together and restore some balance.

You know, now if the business community's argument against the Employee Free Choice Act is simply that it will make it easier for people to join unions and we think that is damaging to the economy then they probably won't get too far with me. If their arguments are we think there are more elegant ways of doing this or here are some modifications or tweaks to the general concept that we would like to see. Then I think that's a conversation that not only myself but folks in labor would be willing to have. But, so that's the general approach that I am interested in taking. But in terms of time table, if we are losing half a million jobs a month then there are no jobs to unionize. So my focus first is on those key economic priority items that I just mentioned.

To read the tea leaves, no one should think that President Obama has softened his position on the EFCA as a matter of policy. He was an early supporter of it as a Senator, and it is fair to conclude that the ascension to the Presidency has not altered his ideology. However, he is a shrewd politician, and he must know: 1) that given the current state of the economy the timing is not right for the EFCA, and 2) the EFCA in its current form is too divisive to ever come out of Congress. In other words, the EFCA is off the table for now, but once the economic ship has been righted, look for this administration to push for a compromised, less controversial, Employee Free Choice Act.

[Hat tip: Connecticut Employment Law Blog and Workplace Prof Blog]

Reminder: It’s not too late to RSVP for KJK’s Breakfast Briefing

There is still time to RSVP for KJK’s inaugural Employment Law Breakfast Briefing: The Top 10 Labor & Employment Law Issues to Face Your Business in 2009. We’ll discuss topics such as the recent ADA Amendments, the new FMLA regulations, legislation President Obama is likely to sign in 2009, the crush of wage and hour litigation, and handling employee layoffs and terminations in a difficult economy. Help prepare your organization for these issues by spending a couple of hours of your morning with KJK’s Labor and Employment Law attorneys.

The seminar will be held Wednesday, January 28, 2009, at The Club at Key Center located at 127 Public Square, Cleveland, OH 44114. The agenda is as follows:

Presenters: Rob Gilmore, Alan Rauss, and Jon Hyman

Agenda
8:00-8:30 Breakfast
8:30-9:30 Presentation
9:30-10:00 Q&A

The event is free and parking will be provided.

If you are interested in attending, or for more information, please contact Andrea Hill, (216) 736-7234 or ach@kjk.com, by January 23, 2009.