Kasten v. Saint-Gobain Performance Plastics Corp., U.S., No. 09-834, 3/22/11

Can an employer retaliate against an employee who makes an oral complaint about an FLSA violation or does that complaint have to be in writing in order to trigger antiretaliation provisions?

The Supreme Court held today that a complaint does not have to be in writing in order to trigger antiretaliation provisions. However, the Court did leave a question unanswered:

Alternatively, Saint-Gobain claims that it should prevail because Kasten complained to a private employer, not tothe Government; and, in Saint-Gobain’s view, the antiretaliation provision applies only to complaints filed with the Government. Saint-Gobain advanced this claim in the lower courts, which held to the contrary. 570 F. 3d, at 837–838; 619 F. Supp. 2d, at 613. But Saint-Gobain said nothing about it in response to Kasten’s petition for certiorari. Indeed, it did not mention the claim in this Court until it filed its brief on the merits. We do not normally consider a separate legal questionnot raised in the certiorari briefs. See this Court’s Rule 15.2; Caterpillar Inc. v. Lewis, 519 U. S. 61, 75, n. 13 (1996). We see no reason to make an exception here.  Resolution of the Government/private employer question is not a "‘"predicate to an intelligent resolution"’" of the oral/written question that we granted certiorari to decide. See ibid. (quoting Ohio v. Robinette, 519 U. S. 33, 38 (1996)). That is to say, we can decide the oral/writtenquestion separately—on its own.

So whether a complaint (written or oral) to an employer rather to a government agency triggers the antiretaliation provision is still undecided by the Supreme Court.

The animation above is to show the point of the case, but does not take much from it in the way of facts or dialogue.

For blog coverage see Rick Bales at Workplace Prof Blog,  Philip Miles at Lawffice space, and Michael Maslanka at Work Matters and Jon Hyman at Ohio Employer Blog.

Worldmark by Wyndham, 356 NLRB 104 (2011)

Here's a pca case with a little bit of fashion for you to boot.

Wyndham changed its "resort casual" dresscode for its sales staff and the change did not go over well. The new code meant that shirts had to be tucked in. Tommy Bahama shirts were particularly popular with the sales staff, especially with salesman Feathers who held the title "King of Tommy Bahama Shirts." Tommy Bahama shirts are not meant to be tucked in.  Salesman Foley (no relationship) returned from vacation to find out about the new policy. Protected concerted activity ensued.

The animation is based on the facts of the case, although certain changes were necessary for both artistic and technical reasons.  The voice over is my poor version of a Bill Lumbergh.  

For more on this case, check out Jeff Hirsh's post at Workplace Prof Blog and Michael Eastman's take at NLRB Insights.

I couldn't get my animated characters to wear Tommy Bahama style shirts, so here is my son in one. Clearly this shirt should not be tucked in.
 

More on Technology

Two more follow ups on technology in labor and employment law:

1. New Ways to Harass:
Josh Bernstein at New York Employment Lawyer explains a case of sexual harassment via text messages and reminds us that new technologies present new ways to harass.  Bernstein concludes,

"Modern technology allows individuals to communicate without physically interacting, and a wealth of academic literature suggests that this physical disconnect leads individuals to act in a much more blunt, aggressive and exaggerated manner than they would if they could see the other person they are communicating with or hear their voice. Moreover, modern communications technology leaves a permanent record of conversations that previously might haven given rise to a he-said she-said in any sort of legal dispute. Given these trends, “textual harassment” is quickly entering the discrimination law vernacular."

In terms of emerging trends, if you follow the developments in schools where kids are being bullied via electronic communications, and even "bullying" their teachers in the same way, it's pretty clear that when these kids grow up and enter the workforce some of these behaviors will enter it with them (although there is at least some hope that the behaviors will dissipate with age).  As Bernstein's post suggests, the new forms of harassment aren't waiting around for the new generation, but are with us now.  Some employer-side attorneys see such progressions as yet another reason to implement strict policies against use of new technologies, but others have more lienient advice for their clients. For instance, Jay Shephard of Gruntled Employees, writes of social media policy's,

"I for one prefer the "Yes" approach. Yes, social media is here to stay. Yes, employees are going to tweet and Facebook and make connections with people on social-media sites. Yes, these employees can act as effective brand ambassadors for their companies, and they should be encouraged to do so. Yes, sometimes Bad Things relating to social media might happen, but we'll deal with them. We don't need draconian policies to prevent people from acting like idiots. People are going to do that from time to time anyway. Why throw out the good along with the bad?"

These new technologies and their implications give us a lot to think about.  Wouldn't it be a good idea for labor and employment lawyers to get together and discuss these type of issues?

2. Symposium
I've learned (via the Workplace Prof Blog) that there will be a symposium on the subject at NYU New York University, April 27-29.  I'd like to attend, but kind of doubt I'll make it up there.  I'll be interested to read whatever comes out of it.  Here are the topics:

* Are You Protected? Privacy, Intellectual Property, Trade Secrets and Non-Competes in Web 2.0
* What You Really Need To Know: The Top 5 Legal and Legislative Technology Developments Impacting the Practice and the Workplace
* Telepresence and Telepresence Robots Being Used in the Workplace
* Social Media and the Global Workplace
* Public Sector Employment: Emerging Issues and their Potential Private Sector Impact
* Electronic Invasion of the Workplace: the Good, the Bad and the Aural?
* Discovery and Subpoenas for the Next Generation of
* Workplace Technology
* Technology as a Research, Communications and Collaborative Tool in the Practice of Law: Retrospective and Prospective
* Investigating and Forgetting on the Web
* Technology Tools and Legal Ethics.

I'm glad to see that on of the topics is not, "How Watson and other Super Computers are Making Labor and Employment Attorneys Obsolete."  At least not this year.

Nevettie v. Wal-Mart

In this case, the Missouri Court of Appeals found that a Wal-Mart employee who told a manager that she disgusted him and made a "very rude gesture" towards her was entitled to unemployment benefits.

According to the Missouri Court of Appeals Eastern District, (see Riverfront Times coverage here), Nevettie, a Wal-Mart employee, had allegedly already received a couple of "coachings" -one for attendance and one for performance- and so he may have been on his last leg when the events transpired. According to the Court:

"Ms. Horn [a manager] testified that on September 4, 2009, she saw claimant in the maintenance department supply room when she was going to the nearby shoe department stock area. She asked claimant how his day was going, and he "just kind of real off the wall he said just you disgust me." A few minutes later, she saw him putting away cases of toilet paper and paper towels, and she commented that the store had finally received paper towels. Claimant replied, "yeah, yeah, yeah, we did and that it's a good thing because so now we--now the people don't have to do this," and he then made a demonstration with his hand, which Ms. Horn characterized as a "very rude gesture."" (Emphasis supplied).

Ms. Horn reported the incident to Nevettie's manager and Nevettie was (allegedly) terminated for the comment and making the "very rude gesture."  Nevettie applied for unemployment.  The initial ruling by a Division of Employment Security deputy was that Nevettie was entitled to benefits because he had not been discharged for a matter related to work.  The deputy was reversed by the Division's Appeals Tribunal, who found that the discharge was related to work and that Nevettie's conduct had shown "a disregard of the standards of behavior the employer had a right to expect of the claimant."  The decision was affirmed by the Labor and Industrial Relations Commission.  However, the Missouri Court of Appeals reversed and remanded the Commission's decision.

In pertinent part, the Court writes, "in this case employer did not produce evidence that it had a policy on offensive language or conduct. The first comment was rude and disrespectful, but it was not vulgar or obscene. Neither the comment nor the subsequent gesture, was accompanied by aggressive or angry behavior. Although the gesture was disgusting, it was not confrontational...
...the evidence does not support a determination that claimant's comment and gesture were the result of anything more than simple lack of judgment. It does not establish that claimant intentionally disregarded the standards of behavior that employer had the right to expect."

The animation roughly depicts the facts as presented by the Court, although, as always, certain changes needed to be made due to technical limitations and artistic considerations.

Speaking of Technology in Labor and Employment Law

When it comes to workplace surveillance, usually you think of employers -in Big Brother fashion- monitoring the email and phone calls of their employees.  But, look out Big Brother; Little Brother has eyes too. Here are two stories in which employees are the ones doing the monitoring:

First, thanks to Sharon Steckler for sending me this Easterbrook decision about an IRS employee.  From the opinion:

"Szymuszkiewicz was in trouble at work. His driver's license had been suspended for driving while drunk. This threatened his job because, as a revenue officer, Szymuszkiewicz was required to travel to delinquent taxpayers' homes. He worried he might be fired. One response, a jury found, was to monitor email messages sent to his supervisor, Nella Infusino. She found out by accident when being trained to use Microsoft Outlook, her email client."

Szymuskiewicz had set up his boss's email account so that every email sent to her would also go to him (an auto-forwarding rule).  This was a bad idea.  Not only did he violate the Wiretap Act for intentionally intercepting electronic communications, he didn't even intercept anything of use.  Catching nothing of use  was no defense.  Neither was it a defense that the emails were not "in flight" when he caught them as the interception does not have to be contemporaneous. (In a normal wiretap setting you think of a person contemporaneously listening in on a telephone conversation.  But would it be wiretapping to listen to someone's voicemail, where the call has already arrived?  In the context of email forwarding the Court didn't give weight to the fact that the emails had already arrived when they were stolen). 

Second is the tale of a Social Security Administration employee.  As the Molly DiBianca posts at the Delaware Employment Blog,

"Roberto Rodriguez worked for the Social Security Administration (SSA) and had access to the SSA’s databases as part of his job duties. The SSA’s policy prohibits its employees from using the databases for non-business reason. Rodriguez violated this policy when he looked up personal information about various women that he knew and had met. He looked up his ex-wife’s earnings history and the address of a woman he met at a church study group to send her flowers on Valentine’s Day.  Rodriguez was found guilty on 17 counts of violating the CFAA [Computer Fraud and Abuse Act]."

A lot of times we complain that the law can't keep up with the technology.  But in these cases it looks like the law was up with the technology and the problem may be that the employees didn't fully understand it or its consequences.