Calling ICE on an Undocumented Worker Who Has Filed an FLSA Claim May Be Unlawful Retaliation

 

By Kathleen Jennings (kjj@wimlaw.com)

An attorney in California learned that the tactic of calling ICE (Immigration and Customs Enforcement) on undocumented workers who have filed FLSA wage-hour claims against his clients (1) is unlawful retaliation under the FLSA and (2) that he can be sued for retaliation for making those calls, even though he is not the employer of those workers. That’s right—those workers can sue the attorney personally. If that doesn’t get the attention of attorneys practicing wage-hour law, I don’t know what will.

In Arias v. Raimondo (9th Cir., No. 15-16120, 6/22/17), the U.S. Court of Appeals for the Ninth Circuit held that the FLSA prohibits retaliation by “any person,” not just the employer. In this case, Jose Arias had proof that Anthony Raimondo, the attorney for Angelo Dairy, called Immigration and Customs Enforcement on at least five occasions when workers brought wage-and-hour claims against his clients. Arias also claimed that Raimondo used the tactic to force Arias into settling his wage-and-hour case against Angelo Dairy. So Arias sued Raimando for retaliation. Raimando claimed that he could not liable to Arias for retaliation because he was not his statutory employer, and the Ninth Circuit Court of Appeals disagreed. The “distinctive purpose” of the FLSA anti-retaliation provision is to allow workers to avail themselves of their rights, the court said. That purpose wouldn’t be served if it has to be the employer engaging in the retaliation, it said.

Advocates for workers see this as an added layer of protection from retaliation for undocumented who challenge employer wage-hour policies under the FLSA.

What does this decision mean for employers? Making threats of deportation to undocumented workers who have filed FLSA claims is not a lawful bargaining tactic when trying to resolve claims or lawsuits. Moreover, an employer cannot use others, such as its attorney, to do indirectly what it cannot do directly, at least in the states encompassed by the Ninth Circuit (California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, Washington).

Pro tip: Undocumented workers who work in the United States are entitled to protection under federal wage/hour and federal anti-discrimination laws, which means that their undocumented status is generally not a defense to liability under those statutes (although it may affect the measure of damages available).

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Happy 50th Birthday, ADEA!

By Kathleen Jennings (kjj@wimlaw.com)

This year, the Age Discrimination in Employment Act (ADEA) turns 50 years old. To mark this milestone, the EEOC held a public meeting on Tuesday entitled “The ADEA @ 50 – More Relevant Than Ever.” At the meeting, several experts addressed the issue of age discrimination in employment from different perspectives.

Laurie McCann, a senior attorney for AARP Foundation Litigation, cited hiring discrimination and mandatory retirement as persistent problems that older workers face across industries. She called on the EEOC to strengthen ADEA protections and enforcement. “The ADEA should not be treated as a second-class civil rights statute. On this 50th Anniversary of the ADEA, AARP urges the EEOC to take bolder action to ensure older workers are treated fairly at work…” McCann told the Commission.

Sara Czaja, director of the Center for Research and Education on Aging and Technology Enhancement (CREATE), explained that research refutes assumptions that older workers are less productive, technophobic or inflexible. Czaja discussed practical ways employers could do a better job of integrating older workers into the workforce by recognizing their value and by matching their skills and abilities with work environments. “Unfortunately, numerous negative stereotypes about older workers still exist that often prevent or have a negative impact on employment opportunities for older people. These stereotypes can also prevent organizations from realizing the wealth of positive assets, such as wisdom, experience, and reliability that older workers can bring to the table,” said Czaja.

Nearly two-thirds of workers age 55-64 report their age as a barrier to getting a job, as reported by a 2017 AARP survey. A comprehensive study in 2015 using resumes for workers at various ages found significant discrimination in hiring for female applicants and the oldest applicants, according to a co-author of the research, Patrick Button, Assistant Professor of Economics at Tulane University and a researcher with the National Bureau of Economic Research Disability Research Center (NBER).

Reality check: In 2000, 23 percent of the U.S. population was in the 45-84 age group. By 2010, this portion will rise to 37.2 percent, and by 2020 it will hit 39 percent, according to the U.S. Census Bureau. A survey from Pew Research found that 70 percent of today’s workers expect to work after retirement. In other words, the number of workers who are protected by the ADEA is increasing.

And don’t forget—it is not only workers who are getting older—jury pools are getting older also. Age discrimination trials present a special challenge because most everyone knows how it feels to get older, or has close relatives or friends who are older, which means jury members are more likely to be sympathetic to age discrimination plaintiffs.

The Takeaway: Employers can prevent age discrimination claims (or minimize liability when the inevitable hard-headed plaintiff pursues a meritless claim) in the same ways that it can prevent other discrimination claims:

  • Be consistent and as objective as possible in discipline and evaluating employee performance
  • Train supervisors and managers to avoid stereotyping employees on the basis of age (or any other protected characteristic)
  • Don’t ignore performance or discipline issues just because an employee has worked at the company “forever;” address them when they occur, just as the company should do with all employees.
  • Monitor interview questions to ensure that none of them are intended to screen out older workers (or other protected class workers).

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

This is What Happens When You Can’t Keep Your Story Straight

By Kathleen Jennings (kjj@wimlaw.com)

I’ve said it before, and I will say it again: when an employer makes a decision to terminate an employee, the decisionmaker(s) had better be able to articulate all of the reasons for the termination decision from the date of that decision forward. When a decisionmaker articulates different or conflicting reasons for a termination decision, if that decision ends up in litigation, that inconsistency is going to result in a jury trial.

A recent example comes to us from Pennsylvania and involves Fedex. Last week, a federal court in Pennsylvania denied Fedex’s motion for summary judgment in an age discrimination case brought by a 45-year-old sales executive, Justine Larison, who was fired by FedEx and replaced with a 38-year-old. (Larison v. Fedex Corp. Servs., Inc., 2017 BL 196229, E.D. Pa., No. 16-5921, 6/9/17). The evidence showed that two younger sales executives—ages 34 and 31—did worse than Larison on the sales metric used to justify Larison’s discharge, but they weren’t terminated. Their common supervisor testified that she expected more of Larison because she’d been in the position eight years versus their two years and one year, respectively.

But then the 34-year-old supervisor also testified that the “entire sales team” was held to the same standard, regardless of experience. There’s the inconsistency. Because of this inconsistency, the district court decided that a jury should review whether Larison was held to a higher standard because of her age.

Note also that that the gap in age between Larison and her replacement was only 7 years. The Court found that the gap in age between a discharged worker and her replacement doesn’t need to be overly lengthy—even as short as 5 years– to support a claim under the Age Discrimination in Employment Act.

Pro tip: Be thorough in identifying the reasons for an employment decision before the decision is communicated to the employee. If there is any concern about whether the decision could result in litigation, have qualified counsel review the decision and the reasons for it. Document those reasons. Be consistent in communicating those reasons to the employee and afterwards.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Paid Leave? Leave in Lieu of Overtime Pay? Changes May Be Coming.

 

By Kathleen Jennings (kjj@wimlaw.com)

Is a federal law requiring employee paid leave in the works? It appears that House Republicans are expected to introduce a bill shielding employers from state and local paid leave requirements if they offer workers a certain amount of paid time off for family and medical reasons. The amount of leave that a business would have to offer to be eligible for the safe harbor would vary based on number of employees. Business groups have been advocating for federal legislation addressing paid leave as an alternative to the various state and local leave laws that are being passed. Basically, for covered employers, the federal law would preempt state and local laws, giving those eligible employers and their HR personnel one federal law to comply with. Some states, including New York and Washington, are already working on passing their own paid leave laws. The Society for Human Resource Management is one of the organizations that has been lobbying in support of a federal law. It is too to tell whether this legislation, and if so, in what form. We will provide updates as necessary.

Another Republican Wage-Hour initiative is a bill that was introduced earlier this year by House Republicans to allow companies to offer employees compensatory time (time off) rather than time-and-a-half pay. The Working Families Flexibility Act of 2017, if passed, would allow nonexempt workers to earn compensatory time off at a rate of no less than 1.5 times every hour for which they would have otherwise earned overtime pay. The bill also would

  • cap the amount of comp time employees could accrue at 160 hours,
  • require employers to pay out annually any unused comp time,
  • give employers 30 days to pay out any unused comp time beyond 80 hours, and
  • require employers to pay out any unused comp time accrued upon termination for any reason.

The House Bill (H.R. 1180) passed on May 2 without any Democratic support. The bill is now in the Senate (S. 801), where it will need some Democratic support in order to pass. There is significant opposition to this bill, so it is by no means a done deal. We will also monitor this legislation and provide updates as necessary.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

No Small Potatoes: Six Figure Settlement of Claims That Citizens and Lawful Permanent Residents Treated Differently

By Kathleen Jennings (kjj@wimlaw.com)

A recent settlement between potato processors in Washington State and the Department of Justice shows the consequences of treating lawful permanent residents differently than American born citizens. In the case of the potato processors, those consequences amounted to a $225,750 settlement of claims that they discriminated against immigrant workers when asking for work authorization proof. (U.S. v. Wash. Potato Co., DOJ OCAHO, settlement announced 5/17/17).

What caused the potato processors, Pasco Processing LLC and Washington Potato Co., to becomes targets of the discrimination claims? They required immigrant workers, but not U.S. citizens, to provide specific documentation to prove they are authorized to work in the U.S. when they completed their I-9 Forms.

According to an administrative complaint filed by the DOJ last November, 99.5 percent
of Pasco’s lawful permanent resident employees hired between November 2013 and October 2016 were required to provide “List A” documents to prove their identity and work authorization. Those documents, which include green cards, were submitted through E-Verify, an electronic government system that confirms work eligibility. In comparison, however, only 2.15 percent of U.S. citizen employees presented List A documents, the DOJ said. The DOJ asserted that the companies’ practices violated the Immigration and Nationality Act, which prohibits citizenship or national origin discrimination.

Pro Tip: It is illegal to discriminate against work-authorized individuals. Employers CANNOT specify which document(s) an employee may present to establish employment authorization and identity. Furthermore, the refusal to hire or continue an individual because the documentation presented has a future expiration date may also constitute illegal discrimination.

Wimberly Lawson can audit your company’s I-9 Forms to ensure that they are completed lawfully. Please contact Jim Wimberly at (404) 365-0900 or jww@wimlaw.com to set up an audit.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Another Facebook Fail: Posting Vacation Pics During FMLA Leave

By Kathleen Jennings (kjj@wimlaw.com)

When will employees learn that the things they post on social media almost always get back to their employer? An example of an employee who learned this lesson the hard way comes to us from the 11th Circuit Court of Appeals. In Jones v. Gulf Coast Health Care of Del., LLC, No. 16-11142 (11th Cir., 2017), Rodney Jones served as Activities Director for Accentia, a long-term-care nursing facility. He requested and received FMLA leave so that he could undergo rotator cuff surgery. Jones was granted another 30 days of non-FMLA medical leave in order to complete his physical therapy. While on the 30 days of additional leave, Jones twice visited the Busch Gardens theme park in Tampa Bay, Florida and went on a trip to St. Martin. Jones spent his time at Busch Gardens walking around and taking pictures of the park’s Christmas decorations. He sent these pictures to his staff via text message, hoping to give them ideas for decorating Accentia’s facilities. Jones also visited his family in St. Martin for three days. He posted photos from these trips on his Facebook page, including pictures of himself on the beach, posing by a boat wreck, and in the ocean. Let’s face it, this guy was having way too much fun on FMLA leave, and he seemed to be rubbing everyone’s face in it. This was not going to end well.

Jones eventually returned to work as planned, and he presented his supervisor, Daniels, with a fitness-for-duty certification confirming that Jones could immediately resume his job as Activities Director. Daniels responded by showing Jones the photos from Jones’s Facebook page, which depicted the trips that he had taken while on medical leave. Oops.

To make matters worse, when Jones asked Daniels how he had obtained the photos, Daniels responded that “you can thank your wonderful staff, they just ratted you out,” but also remarked that “maybe if you’re going to have a Facebook account, you shouldn’t have it on public.” Daniels then informed Jones that “corporate” believed, based on these Facebook posts, that Jones had been well enough to return to work at an earlier point. Jones was subsequently suspended so that Daniels could investigate his conduct during medical leave. Although Jones was given an opportunity to respond to these charges in a letter, he failed to do so. Several days later, Jones’s employment was terminated.

Jones filed suit, alleging that, in suspending and later terminating him, Accentia interfered with the exercise of his FMLA rights and retaliated against him for asserting those rights. The District Court granted summary judgment in favor of the employer on both claims. The 11th Circuit affirmed the decision to grant summary judgment on the interference claim, but reversed the decision on the retaliation claim, finding that there were disputed issues of fact because the employer offered inconsistent reasons for Jones’ discharge.

The employer prevailed on the FMLA interference claim because Jones likely waived his FMLA right to reinstatement by taking an additional 30 days of medical leave, because he failed to submit a fitness-for-duty certification by the end of his FMLA leave, and because the record was devoid of proof challenging Accentia’s contention that its fitness-for-duty certification policy was implemented in a uniform fashion. Thus, Jones lost the right to be reinstated after failing to comply with this policy.

On the retaliation claim, the 11th Circuit clarified the law of the Circuit by holding that temporal proximity, for the purpose of establishing the causation prong of a prima facie case of FMLA retaliation, should be measured from the last day of an employee’s FMLA leave until the adverse employment action at issue occurs. In Jones’ case, he was terminated the day he returned from FMLA leave, so the temporal proximity between the end of FMLA leave and termination was as close as it could get. In addition, the Court found that Daniels’s alleged comment that “corporate was not going to like the fact that [Jones] was taking FMLA leave during the ‘survey window'” corroborated Jones’s claim that his FMLA leave and his termination were not “wholly unrelated.”

Accentia also offered inconsistent reasons for Jones’ discharge, which will almost always preclude summary judgment.

Pro tip: When terminating an employee, a decisionmaker should be able to identify the reasons for termination at the time of the decision, and communicate them to the employee. If the employee files a lawsuit, the employer needs to be consistent with its reasons for the termination, unless it discovers new, previously unknown evidence of misconduct.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Non-Union Facilities Can Keep Union Reps Out of OSHA Inspections

By Kathleen Jennings (kjj@wimlaw.com)

Non-union employers can breathe a sigh of relief this week — OSHA has changed its enforcement policy regarding the participation of union representatives in workplace inspections of non-union facilities. In a 2013 interpretation letter (known as the “Fairfax Memo”), OSHA addressed which people not associated with the employer or government can be selected by compliance officers to accompany them on inspections. OSHA took the position that it had a right to select union advocates to participate in workplace inspections, even in non-union facilities. Not surprisingly, employer groups were not happy with this interpretation, and the Fairfax Memo was challenged in Court by the by the National Federation of Independent Businesses. Last week, OSHA rescinded the Fairfax Memo and announced that the guidance would be removed from OSHA’s manual on how staff should conduct inspections.

This is one less headache for non-union employers dealing with OSHA inspections. If an employer is going to have anyone present at an OSHA inspection, it should be the company’s counsel.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.