Thursday, January 18, 2018

Trump's DOL: Employees' Protections Down the Drain

The Fair Labor Standards Act (“FLSA”) establishes, among other things, overtime pay standards affecting employees in both the private and Federal sectors. Workers covered by the FLSA must receive overtime pay (their hourly rate plus an additional 50%) for each hour they work after 40 hours of work in a workweek. The Department of Labor (“DOL”), Wage and Hour Division (“WHD”) enforces the Federal overtime pay requirements of the FLSA.

Historically, interested parties could ask the WHD for official written explanations (“Opinion Letters”) of what the FLSA requires in certain fact-specific situations. In an Opinion Letter, the DOL indicates whether a particular business practice complies with the FLSA. This process, however, largely served the interests of employers: it gave them a legal defense that their practices comported with what the Opinion Letter says, even if the DOL’s guidance in the Opinion Letter was wrong. Specifically, under the Portal-to-Portal Act of 1947, employers may be able to rely on the Opinion Letters for their affirmative defenses and receive deference from the courts if they act “in good faith in conformity with” an Opinion Letter. This can be a challenge for employees’ attorneys to overcome. Additionally, although most beneficial to the employer requesting the Letter, any other employer can cite the Letter as a defense, provided its practice aligns with the material facts underlying the Letter.

DOL’s longstanding practice of issuing Opinion Letters offering interpretive guidance under the FLSA was halted by the Obama Administration in 2009. Beginning in 2010, the DOL discontinued issuing Opinion Letters in favor of “Administrative Interpretations”—broader pronouncements of the DOL’s views on wage and hour issues, unlinked to a particular fact pattern.

In June 2017, the Trump Administration began undoing some of the sub-regulatory activism of the Obama administration by withdrawing two Administrative Interpretations on independent contractors and joint employers:
  • No. 2015-01: addressed the classification of independent contractors as employees under the FLSA, stating that “most workers are employees under the FLSA’s broad definitions,” essentially creating a presumption of employment for all workers. This Interpretation underscores the importance and level of scrutiny placed on employers to confirm that they are properly classifying workers.
  • No. 2016-01: established new standards for determining joint employment under the FLSA and Migrant Seasonal Agricultural Worker Protection Act. The DOL took the position that “[t]he concept of joint employment, like employment generally, should be defined expansively under the FLSA and MSPA.”
The withdrawal of these Interpretations signaled a major shift in wage and hour policy—away from heightened scrutiny of employers with respect to their classification of workers as employees and for determining joint employment with contractors and other related organizations. Later that month, the DOL announced it would return to the practice of issuing Opinion Letters to provide guidance to employers and employees on FLSA issues. The DOL also reissued 17 previously withdrawn Opinion Letters on a wide variety of topics under the FLSA. This shift strongly indicates that the Trump Administration favors less aggressive regulation and oversight of employers: reverting back to a process that largely serves employers’ interests—at the cost of employees’ wages.

Although the DOL may recover back wages (either administratively or through court action) on behalf of employees that have been illegally underpaid in violation of the FLSA, the Trump DOL has shown that it cannot be trusted to uphold workers’ interests. Accordingly, an employee who believes his/her employer has violated the FLSA should seek guidance from an attorney practicing in this area. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue to http://www.kcnlaw.com/Contact.shtml.


This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

Thursday, December 21, 2017

Overtime Rates Depend on Job Duties, not Position Title

The Federal Government Misclassified Bureau of Prisons Teachers as FLSA-Exempt.

KCNF attorneys recently won backpay and liquidated damages on behalf of teachers at the country’s largest federal prison complex, Federal Correctional Complex Coleman, Florida (“FCC Coleman”). The teachers brought a grievance alleging that Fair Labor Standards Act (“FLSA”) overtime requirements should apply to them, in part because they spend the majority of their time performing non-teaching correctional officer duties. (The FLSA defines who is entitled to overtime and who is “exempt” from the requirement.)

Normally, teachers and other professionals such as attorneys, doctors, and engineers employed by the federal government are considered to be FLSA-exempt “learned professionals” under 5 C.F.R. § 551.208. If these employees are properly exempt from the requirements of the FLSA, the government can cap their overtime rate at the GS-10 step 1 rate instead of paying full time and one-half overtime based on their actual salary.

At FCC Coleman, the teachers did not spend the majority of their time performing duties associated with teaching, which are considered exempt. Rather, because the Bureau of Prisons required teachers to perform numerous correctional officer duties, they were only able to spend a few hours a week in the classroom. Instead of teaching the inmates themselves, the teachers were forced to rely on inmate tutors while they monitored inmate movements, searched facilities for contraband, responded to emergencies, participated in “fog watch” patrols, tracked down missing inmates, and performed a variety of other correctional officer duties. The teachers’ union filed a grievance, and the arbitrator agreed that the Bureau of Prisons had misclassified the teachers as exempt from the FLSA’s overtime requirements. As a result, the teachers are entitled to (1) time and one-half overtime going forward based on each of their salaries; (2) backpay for the difference between the value of what the government paid the employees and what they should have been paid; and (3) liquidated damages equal to the full value of the backpay.

Misclassifying Employees Can Be an Expensive Mistake.

Employees fall into two basic categories under the FLSA: “non-exempt employees” (i.e., employees who are covered by the FLSA’s protections; and “exempt employees” who fall within one of the FLSA’s narrow exemptions and thus are not protected by the Act. Congress structured the FLSA to broadly protect employees, and the FLSA establishes a presumption of nonexempt status that an employer may overcome only by proving each element of a claimed exemption. See Astor v. U.S., 79 Fed. Cl. 303, 308 (Nov. 13, 2007) (citing 5 C.F.R. § 551.202(b)).

In short, if an employer, including the federal government, classifies its employees as FLSA-exempt, it has the burden of proving that the classification is proper. Clearly, employers have a financial incentive to classify employees as FLSA-exempt: when properly exempted from the FLSA, employees are not entitled to “time and a half” overtime pay, which can represent a significant expense for an organization. As a result, although the employer’s burden of proof is high, some employers still find the economic benefits of improperly labeling employees “FLSA exempt” too tempting to resist.

However, employers are short-sighted if they classify employees as FLSA-exempt without engaging in a full evaluation of the duties they perform and whether they truly meet each element of a proper FLSA exemption. The FLSA includes stiff penalties for employers who misclassify their workers. Where the employer cannot meet the significant burden of showing it properly classified its workers, employees may be entitled to back pay for the difference between the rate they were paid and time-and-a-half overtime, plus an equal amount in liquidated damages, plus the attorneys’ fees necessary to enforce their rights under the FLSA. What might have seemed like a quick way to save money on overtime can easily become an expensive mistake for an employer.

Why It Is Important to Question FLSA Determinations.


In cases such as FCC Coleman, the employer may point to the position title or description as evidence of the employees’ exempt status. However, job titles and position descriptions do not determine whether an employee is exempt. Rather, for federal employees such as the teachers at FCC Coleman, “The designation of an employee as FLSA exempt or nonexempt ultimately rests on the duties actually performed by the employee.” 5 C.F.R. § 551.202(e) (emphasis added). Any other approach would allow an employer to arbitrarily classify employees and eliminate FLSA protections at will. The decision at FCC Coleman is significant because it shows that even the federal government is not immune from misclassifying its employees as FLSA-exempt. FLSA-exempt employees should consider whether their duties actually match their job titles, and whether they have a claim for higher overtime rates and back pay based on the work they actually have been performing.

Written by Robert DePriest.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

Monday, December 18, 2017

What’s Leave Got To Do With It? Revisiting Leave as a Reasonable Accommodation under the ADA in Severson v. Heartland Woodcraft.

In a recent decision, the Seventh Circuit U.S. Court of Appeals held that the Americans with Disabilities Act (ADA) did not require an employer to accommodate an employee who had exhausted his 12 weeks of FMLA leave by providing him an unpaid leave of absence, reassigning him to a vacant position, or creating a light duty position for him. Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017). Less than a month later, the court applied its holding in Severson to a similar case, Golden v. Indianapolis Housing Agency, 698 Fed. Appx. 835 (7th Cir. 2017). There, it reached the same conclusion about leave as a reasonable accommodation under the Rehabilitation Act.

At first blush, these decisions may appear to be outliers against the wealth of decades-old authority recognizing that leave of absence is a form of reasonable accommodation that employers should consider for disabled employees, even when they are ineligible for or have exhausted leave mandated by state or federal law, or other company-approved leaves of absence. Nevertheless, the 7th Circuit’s interpretation that the ADA does not require a two to three month leave of absence may be a noteworthy warning of the evolution of the meaning of reasonable accommodation under the ADA.[1]

I. An Abbreviated Background on Leave as an Accommodation.

Title I of the ADA requires an employer to provide a reasonable accommodation to disabled, qualified employees or applicants for employment, unless doing so would cause undue hardship to the employer. Reasonable accommodation includes modifications or adjustments to the work environment, or to the manner or circumstances in which the position held or applied for is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position. 29 C.F.R. § 1630.2(o)(1)(i-iii) (1997).

Since at least 2002, the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA has permitted the use of leave as a form of reasonable accommodation when required by an employee’s disability. Indeed, in recent years, the EEOC has made a priority of enforcing violations of the ADA by focusing on employers with inflexible time-off and leave of absence policies. According to a 2012 paper published by Reed Group, the EEOC entered into numerous consent decrees with private-sector employers to remedy their failures to reasonably accommodate employees with disabilities under the ADA. The consent decrees required employers to undertake substantial obligations to post notice of the decree, amend polices, report frequently back to the EEOC, and provide training to employees.

Examples of the policies that violated the ADA illustrate how pervasively industry-leading employers terminated otherwise qualified employees with a disability in lieu of providing a leave of absence before the EEOC’s wave of enforcement activity in this area. According to the Reed Group’s paper, in November 2012, Interstate Distributor Co. entered into a consent decree with the EEOC following complaints over Interstate’s policies to allow a maximum leave period of 12 weeks and to terminate employees who were not 100% healed and able to return to work full time or full duty at the end of their leave. Verizon Communications was subject to an EEOC Consent Degree in July 2011 for disciplining or terminating disabled employees when they reached the maximum amount of “no fault” attendance plans, without considering additional time off as an ADA accommodation. United Airlines was subject to an EEOC Consent Decree in December 2010 because of its practice of requiring reservation sales representatives on disability leave to either retire or go out on extended leave, and then terminating those representatives when their leave ran out, without considering reduced hourly schedules as a reasonable ADA accommodation.

For at least 20 years, the courts have endorsed leave of absence as a reasonable accommodation, too. See, e.g., Garcia-Ayala v. Lederle Parentals, Inc., 212 F.3d 638 (1st Cir. 2000) (reversing summary judgment for employer and holding “[t]he company’s apparent position that the ADA can never impose an obligation on [it] to grant an accommodation beyond the leave allowed under the company’s own leave policy is flatly wrong under our precedent”) (citing Ralph v. Lucent Technologies, Inc., 135 F.3d 166, 171-72 (1st Cir. 1998); Humphrey v. Memorial Hospitals Ass’n, 239 F. 3d 1128, 1135-36 (9th Cir. 2001) (“where a leave of absence would reasonably accommodate an employee’s disability and permit him, upon his return, to perform the essential functions of the job, that employee is otherwise qualified under the ADA”) (citing Nunes v. Walmart Stores, Inc. 164 F.3d 1243, 1247 (9th Cir. 1999).

Employers defending against these cases typically argued, unsuccessfully, that employees were not “qualified” within the meaning of the ADA under the plain language of the statute. They argued that 42 U.S.C. §12111(8) defines a qualified individual as one “with a disability who, with or without reasonable accommodation can perform the essential functions of the employment position that such individual holds or desires.”[2] But in reliance on the same language, the courts have generally reasoned that a qualified individual is one who has the skills, training, education, and experience to perform the essential duties of his or her job despite a disability, and thus is “qualified” by virtue of credentials. To limit accommodation to those who “can successfully perform” the essential functions of a position “without reasonable accommodation” limits the protections of the ADA to those who don’t need them.

II. What happened in Severson?

Raymond Severson worked for Heartland Woodcraft in a physically demanding position that required, among other things, lifting materials that weighed 50 pounds or more. In early June 2013, Severson took 12 weeks of medical leave under the FMLA when he was unable to work due to a back injury. On August 13, 2013, he informed Heartland that his condition had not improved and he was scheduled to have disc decompression surgery on August 27. He told Heartland that the expected recovery time from the surgery was at least two months. He requested an extension of his medical leave, but his 12 weeks of FMLA entitlement expired on August 27. When he spoke with human resources on August 26, Heartland told him it would end Severson’s employment when his FMLA leave expired on August 27. Heartland informed Severson he was invited to reapply with the company when he recovered from surgery and was medically cleared to work.

Severson eventually fully recovered after approximately three months. He did not reapply for his job. Instead, he sued under the ADA and alleged that Heartland should have accommodated him by providing him with two to three months of leave of absence after his FMLA leave expired. He also alleged that Heartland could have transferred him to a vacant job or to a temporary light duty position without heavy lifting until he was fully recovered.

The district court granted Heartland’s motion for summary judgment by making what was old new again and reasoning that only “qualified” individuals are entitled to reasonable accommodations. The parties agreed Severson was disabled and that he could not perform the essential function of lifting 50 pounds at the time he was fired. The court found that at the time Heartland fired Severson, the request for leave would not have been a reasonable accommodation since he was unable to perform some of the essential functions of his position, and he would remain unable to do so for as long as three months.

On appeal, the Seventh Circuit affirmed for two reasons.

First, the court reasoned that the ADA’s definition of what a “reasonable accommodation” includes is permissive and not mandatory.[3] In other words, the court held that the statutory definition uses “may” to provide examples of what a reasonable accommodation includes, so “the concept of ‘reasonable accommodation’ is flexible and the listed examples are illustrative.”[4]

Second, the court determined that Severson’s inability to work for multiple months meant he failed to satisfy the “qualified” person criterion under the ADA. The court reasoned that the examples of reasonable accommodations provided by law “are all measures that facilitate work,” since a reasonable accommodation is, by definition, one that allows the disabled employee to “perform the essential functions of the employment position.”[5] Thus, where a “long-term absence” would not enable the employee to perform the essential functions of his job, a long term absence is not a reasonable accommodation.

The EEOC submitted an amicus curie brief arguing, in part, that the correct inquiry as to whether an accommodation is reasonable should focus on the employee’s ability to perform the essential functions of the job at the time the employee returns to work—not at the time the employee was terminated. The EEOC’s brief noted that the impact determining whether Severson was “qualified” at the time he was terminated would, in effect, “rule out leave as a possible accommodation under the ADA.” The court’s ruling specifically rejected the EEOC’s argument on the grounds that such an interpretation of the statute would equate “reasonable accommodation” with “effective accommodation,” the latter of which is not required under the ADA, and which would mutate the ADA “in effect, [into] an open-ended extension of the FMLA. That’s an untenable interpretation of the term ‘reasonable accommodation.’”[6]

III. Takeaways for Employees.


Severson did not wholly eliminate leave as an acceptable accommodation. The decision leaves open the possibility for intermittent time off for intermittent conditions as a reasonable accommodation, which is deemed “analogous to a part-time or modified work schedule” contemplated by the statute.

However, following the Seventh Circuit’s application of Severson to its unpublished decision in Golden, the court’s rejection of “a multimonth leave of absence” as a reasonable accommodation under the ADA will apply to government employees. Golden involved a state housing agency police officer diagnosed with breast cancer. Golden exhausted all 16 weeks of her unpaid medical leave (12 weeks of FMLA and four weeks of unpaid medical leave granted by agency “custom”). After meeting with the agency the day before her leave was due to expire, Golden requested an unpaid leave of absence under the agency’s “General Leave of Absence (Unpaid Leave)” policy, which permitted leave for a specific period of time not to exceed six months. The agency rejected Golden’s request and fired her the next day. Golden sued the agency under the ADA and Rehabilitation Act for failing to accommodate her by granting her an additional six months of unpaid leave. The court affirmed summary judgment granted to the agency.

While employees should be aware of the possibility that other federal courts could adopt Severson or Golden, none have as of the time of this publication. Helpfully, Golden is distinguishable from Severson, including because the employee’s doctor could not provide a date on which she was expected to return to work. Judge Rovner’s concurring opinion in Golden also highlights that the court’s adoption of Severson’s “per se rule that ‘a long term leave of absence cannot be a reasonable accommodation’” is “without any support from the text of the Americans with Disabilities Act.”

In sum, employees with disabilities that require lengthy leaves of absence should typically include an expected date of return to work in their requests for medical leave. Despite the efforts made by the terminated employees in Severson and Golden, best practices include keeping one’s employer up to date about any changes to the length of leave required or one’s expected date of return, including, if possible, by keeping one’s employer updated about the progress or ineffectiveness of medical treatment.

Written by Puja Gupta

[1] The U.S. Seventh Circuit Court of Appeals has appellate jurisdiction over the U.S. District Courts in Illinois, Indiana, and Wisconsin.
[2] 42 U.S.C. §12111(8) (emphasis added).
[3] 872 F. 3d at 481 (citing 42 U.S.C. §12111(9)).
[4] Id.
[5] Id. (citing 42 U.S.C §12111(8)).
[6] 872 F.3d at 482 (citing U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002)).

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

Wednesday, December 6, 2017

It's Time to Reconsider the Cultural Context of Sexual Harassment

Charlie Rose: On November 14, 2017, CBS fired 75-year-old Charlie Rose after eight women who worked for him accused him of exposing himself and groping their breasts, buttocks, legs, and genitals. The incidents spanned more than a decade—from the 1990s through 2011.

Matt Lauer: On November 29, 2017, NBC News fired Matt Lauer after a colleague alleged he engaged in inappropriate sexual behavior toward her which lasted for several months. This allegation was followed by accusations from five other women that Lauer sexually harassed them in the workplace.

Representative John Conyers, Jr: On December 4, 2017, 88-year old Representative John Conyers, Jr., of Michigan, the longest-serving member of the House of Representatives, resigned amid accusations of sexual harassment by several female employees. Several of his former aides alleged that he demanded sexual favors from them or touched them inappropriately.

Harvey Weinstein: Almost daily, new allegations of sexual misconduct emerge against the mogul movie producer Harvey Weinstein, who has reportedly fled to Europe for sexual addiction rehabilitation.

Sexual harassment in the workplace is not confined to Hollywood, major media outlets, or the legislature. Statistics show that “[a]pproximately 15,000 sexual harassment cases…are brought to the Equal Employment Opportunity Commission (EEOC) each year.” A telephone poll of 782 workers revealed that 31% of the women workers claimed to have been sexually harassed at work. It is quite likely, though, that even these appalling statistics do not accurately represent the number of people who are sexually harassed at work. According to the EEOC’s June 2016 Select Task Force on the Study of Harassment in the Workplace: “Common workplace-based responses by those who experience sex-based harassment are to avoid the harasser, deny or downplay the gravity of the situation, or attempt to ignore, forget, or endure the behavior. The least common response to harassment is to take some formal action–either to report the harassment internally or file a formal legal complaint. Roughly three out of four individuals who experienced harassment never even talked to a supervisor, manager, or union representative about the harassing conduct. Employees who experience harassment fail to report the harassing behavior or to file a complaint because they fear disbelief of their claim, inaction on their claim, blame, or social or professional retaliation.”

Failure to report a harassment claim due to fear of disbelief of the claim and inaction on the claim likely stems from a cultural environment present in the workplace which ignores and even accepts (whether implicitly or explicitly) sexual harassment. Unfortunately, the legal genesis for the burgeoning cultural acceptance of sexual harassment in the workplace may be attributed to the Supreme Court. In 1998, the Supreme Court held in Oncale v. Sundowner Offshore Services, Inc., that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. While that holding is laudable, the Supreme Court attempted to prevent its holding from expanding into a “general civility code,” which Title VII does not permit:
We have emphasized…that the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances.’…In same-sex (as in all) harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. A professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field—even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing…and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.
It is precisely this “social context” that has seemingly fueled the acceptance of sexual harassment in the workplace. Kyle Godfrey-Ryan, one of Charlie Rose’s accusers, said that “Rose walked around one of his New York City homes nude in front of her at least a dozen times.” Godfrey-Ryan also alleged that Rose “called her several times to discuss his fantasies of her swimming naked in his Bellport pool as he watched her from his bedroom.” Godfrey-Ryan claimed to have informed Rose’s producer about his phone calls. “I explained how he inappropriately spoke to me during those times.” Rose’s producer “would just shrug and just say, ‘That’s just Charlie being Charlie.’” Another of Rose’s accusers claimed that while she was working for Rose in his Manhattan apartment, he called out her name while he was showering. When she did not respond, Rose emerged from the shower wearing only a towel and said to her, “‘Didn’t you hear me calling you?’” When she reported his behavior to someone in the office, a male colleague approached her, laughing, and said, “‘Oh, you got the shower trick.’”

Describing the social context that is pervasive in Hollywood, George Clooney stated, “[I]n some ways, a lecherous guy with money picking up younger girls is unfortunately not a news story in our society.” Matt Damon commented, “We vouch for each other all the time…We know this stuff goes on in the world. I did five or six movies with Harvey [Weinstein]. I never saw this.” However, “[t]he ‘not seeing’ is a common theme in actors’ responses to this scandal.” Three women who accused Matt Lauer of sexually harassing them “complained to NBC about Lauer’s behavior in the past–and the network didn’t do anything.” Nor did government leaders respond immediately to the claims that Representative John Conyers, Jr., sexually harassed his former aides: “Democratic leaders at first circled protectively around Conyers, but as the number of accounts grew, members of his party began calling for his departure.”

The social context present in many workplaces not only creates an atmosphere that is conducive to sexual harassment, but it also keeps any attempts at prevention training from succeeding. For example, “employees who already believed that their employers tolerated sexual harassment took that cynicism into training sessions and were less motivated to learn from it.” “Institutional cultural change is needed. If workplace environments are influencing employees’ attitudes toward training and/or its actual effectiveness, then employers need to pay more attention to the cultural environment of their organization.”

When determining whether harassment claims are actionable, courts are directed to consider the “totality of the circumstances,” including the nature and frequency of the offensive encounters. The conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive.” The key question is, though, who is a “reasonable person”? The Sixth Circuit held in Highlander v K.F.C. Management Co. that a court must “adopt the perspective of a reasonable person’s reaction to a similar environment under similar or like circumstances to determine if the defendant’s conduct would have interfered with the work performance and would have seriously affected the psychological well-being of that characterized individual.” Is that “reasonable person’s” reaction under similar circumstances a work colleague who is so familiar with Rose’s sexual misbehavior that he believes a woman being asked by Charlie Rose to come into the shower with him is nothing unusual? Is that “reasonable person” a work colleague who has become so numbed by the pervasiveness of wealthy men picking up younger women in Hollywood that he simply does not “see” Harvey Weinstein sexually harassing actresses who are working on his films? Is that “reasonable person” the nation’s government leaders who do not force Representative John Conyers, Jr.’s resignation from office until a particular number of women have accused him of sexual harassment?

In 1991, the Ninth Circuit held in Ellison v. Brady that “a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.” The Ninth Circuit explained the rationale behind its “reasonable woman” standard: “We adopt the perspective of a reasonable woman primarily because we believe that a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women.” The Ninth Circuit made clear in Ellison, though, that “where male employees allege that co-workers engage in conduct which creates a hostile environment, the appropriate victim’s perspective would be that of a reasonable man.” The Ninth Circuit continues to this date to adopt the reasonable woman or man standard, depending on the gender of the plaintiff.

In Ellison, the Ninth Circuit stated that, “analyzing harassment from the perspective of the victim requires “among other things, an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women.” Further, “[a]dopting the victim’s perspective ensures that courts will not ‘sustain ingrained notions of reasonable behavior fashioned by the offenders.’ Congress did not enact Title VII to codify prevailing sexist prejudices.”

The Ninth Circuit appropriately assessed the severity of the harasser’s conduct from the perspective of the reasonable victim, rather than from the perspective of the organizational and social context from which it arose–which often ignores and even accepts that behavior.

Adopting the Ninth Circuit’s standard across the country just might curb the precipitous tide of sexual harassment that is occurring in Hollywood, major media outlets, the national legislature, and in the most common of workplaces.

Written by Valerie A. LeFevere

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

Wednesday, November 29, 2017

The FLSA Has Meaningful Teeth to Prevent Retaliation

The Fair Labor Standards Act (“FLSA”) establishes minimum wage and overtime protections for many workers in the U.S., including many federal employees. While the FLSA prohibits retaliation against any person who has filed a complaint or cooperated in an FLSA investigation, workers are often deterred or prevented from asserting workplace rights for fear of retaliation. Fortunately for employees, courts are sending an increasingly clear message: employees must be free to bring FLSA claims; and anybody who retaliates against them does so at their own peril.

The FLSA’s anti-retaliation provision states:
It shall be unlawful for any person – (3) to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.
29 U.S.C. § 215(a) (emphasis added). This is broad language, which courts have interpreted as meaning that individual employees, managers, and even non-employees acting in the interest of the employer can be held individually liable for FLSA retaliation.

In a recent Ninth Circuit case, the Court held that an employee who was retaliated against for complaining of illegal pay practices could even sue the employer’s outside attorney responsible for the retaliation. Arias v. Raimondo, 860 F.3d 1185 (9th Cir. 2017). There, the employer’s attorney attempted to derail the employee’s case shortly before trial by notifying Immigration and Customs Enforcement (ICE) of the employee’s immigration status. In particular, the attorney scheduled the employee’s deposition and then told ICE where it could find the employee that day.

In Arias, the Court found that even though the attorney was not the employer, the attorney’s conduct was an attempt to penalize the employee for complaining about his pay and, therefore, “manifestly falls within the purview, the purpose, and the plain language” of the FLSA. Arias at 1192. The Ninth Circuit distinguished between FLSA liability based on its wage and hour economic provisions and its anti-retaliation provisions, explaining:
The wage and hours provisions focus on de facto employers, but the anti-retaliation provision refers to "any person" who retaliates. See 29 U.S.C. § 215(a)(3). In turn, section 203(d) extends this concept to "any person acting directly or indirectly in the interest of an employer in relation to an employee." See Id. § 203(d). Thus, Congress clearly means to extend section 215(a)(3)'s reach beyond actual employers.
Arias, 860 F.3d at 1191-92.

In addition to a broader understanding of who can be liable for FLSA retaliation, Congress also expanded the remedies available to employees when it created a private cause of action to enforce the FLSA’s anti-retaliation provision. Fair Labor Standards Amendments of 1977, Pub. L. No. 95-151, 91 Stat. 1252 (Nov. 1, 1977). While employees bringing traditional wage and hour claims are limited in the types of relief they can recover (back pay, liquidated damages, etc.), those who claim FLSA retaliation can seek “such legal or equitable relief as may be appropriate.” 29 U.S.C. 216(b). Circuit Courts of Appeals are increasingly agreeing that these remedies include compensation for emotional injuries suffered by an employee because of employer retaliation. In particular:
  • The 5th Circuit recently authorized an award of compensatory damages as a result of retaliation for protected FLSA activity. The plaintiff worked for his landlord, who required him to vacate his apartment after he sought payment for unpaid overtime. See Pineda v. JTCH Apartments, LLC, 843 F.3d 1062 (5th Cir. 2016).
  • The 6th Circuit upheld an award of compensatory damages of $40,000 for mental and emotional distress as a result of FLSA retaliation where an employee was fired after raising FLSA claims. See Moore v. Freeman, 355 F.3d 558, 563 (6th Cir. 2004).
  • The 7th Circuit upheld an award of $35,000 for emotional distress and $45,500 in punitive damages for FLSA retaliation where the employer fired a supervisor who testified in an employee’s FLSA case. See Travis v. Gary Cmty. Mental Health Ctr., 921 F.2d 108 (7th Cir. 1990).
  • The 9th Circuit upheld an award of compensatory damages of $75,000 to each individual plaintiff as well as $4,182,000 in punitive damages as a result of retaliation for participation in an FLSA proceeding, after the employer fired employees who complained about overtime violations. See Lambert v. Ackerley, 180 F.3d 997 (9th Cir. 1999).
On its own, the threat of potential civil liability and the prospect of having to pay damages for pain and suffering ought to cause individuals to tread carefully when taking action against employees who have engaged in FLSA-protected activity. If that isn’t sufficient deterrent, however, it is also feasible that individuals could face criminal charges for FLSA retaliation:
Any person who willfully violates any of the provisions of section 215 of this title shall upon conviction thereof be subject to a fine of not more than $10,000, or to imprisonment for not more than six months, or both. No person shall be imprisoned under this subsection except for an offense committed after the conviction of such person for a prior offense under this section.
29 U.S.C. § 216(a). While criminal prosecution under the FLSA is rare, if courts continue to emphasize the broad reach of the FLSA’s anti-retaliation provisions, it is possible that prosecutors could resurrect this seldom-used provision allowing criminal prosecution for individuals responsible for FLSA retaliation. As one court warned, any retaliatory response to employees participating in an FLSA claim will be treated with the utmost seriousness, “including considering referring the matter to the United States Attorney for criminal prosecution of FLSA violations or even obstruction of justice.” Morangelli v. Chemed Corp., 2011 WL 7475 (E.D.N.Y. Jan. 1, 2011), citing Meek v. U.S., 136 F.2d 679 (6th Cir. 1943) (sustaining conviction for retaliating against employees who filed FLSA claim).

Courts’ increasing willingness to broadly apply the FLSA’s anti-retaliation provisions is good news for FLSA plaintiffs and prospective litigants. With such significant penalties for FLSA retaliation, employees can feel more comfortable exercising their rights, and employers and individuals acting on their behalf should be more mindful of their responsibilities and the consequences of running afoul of the law.

Written by Robert DePriest.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

Friday, November 17, 2017

Montgomery County, Maryland passes $15/hour minimum wage. Who is affected, what are the caveats, and will it last?

On Monday, November 13, Montgomery County Executive Isiah Leggett signed into law the County Council’s bill increasing the County-wide minimum wage to $15.00 per hour for certain employers by 2021. Under Montgomery County Council Bill 28-17, as enacted, the law provides a transition period to allow for the annual incremental increase of the hourly minimum wage paid by “large” employers, which are defined as those who employ 51 or more employees. Previous incremental adjustments to the County’s minimum wage did not account for the size of the employer.

For large employers, the County minimum wage increases from $11.50 effective July 1, 2017 to $12.25 per hour on July 1, 2018; to $13.00 per hour effective July 1, 2019, to $14.00 per hour effective July 1, 2020, and to $15.00 per hour effective July 1, 2021. The law provides that the minimum wage paid in any given year shall be the greater of that provided under the County law or under the prevailing state or federal law.

Regardless of the size of the employer, beginning July 1 in the year after the $15.00/hour minimum wage is reached, the County’s Chief Administrative Officer must adjust the minimum wage each subsequent July 1 by the annual average increase in the Consumer Price Index (CPI) for Urban Wage Earner and Clerical Workers for Washington-Baltimore, during the previous calendar year. For mid-sized and small employers, if the annual average increase under the CPI is less than $.50, then the annual increase shall be one percent of the minimum wage required for the previous year, up to a total increase of $.50.

Who is exempt from the County’s $15.00/hour minimum wage increase?


The County minimum wage does not apply to an employee who is under 19 years of age and is employed for fewer than 20 hours per week, or to an employee who is exempt from the minimum wage requirements under state or federal law.

Moreover, employers with fewer than 51 employees will have a longer transition period to implement the minimum wage.

What are the caveats to the County’s minimum wage increase?


The public policy behind the legislation to provide an improved standard of living for otherwise low-wage, hourly earners in Montgomery County is apparent from the exclusion of employees 19 years and younger who are employed for fewer than 20 hours a week. Still, during their first six months of employment, employers retain discretion to pay employees under 20 years old a wage equal to 85% of the County minimum wage.

Mid-size employers are defined as those who employ between 11 and 50 employees or as an employer who employs 11 or more employees and either has 501(c)(3) tax-exempt status or provides certain home health-care services whose revenues are derived at least 75% in part through Medicaid programs. Mid-sized employers benefit from a longer transition period, and they have until July 1, 2023, rather than 2021, to implement the minimum wage. The minimum wage for mid-sized employers increases from $11.50 effective July 1, 2017 to $12.00 per hour effective July 1, 2018, and then to $12.50 per hour by July 1, 2019; to $13.25 per hour by July 1, 2020; to $14.00 per hour by July 1, 2021; to $14.50 per hour by July 1, 2022; and finally to $15.00 per hour by July 1, 2023.

Small employers, or those employers with 10 or fewer employees, will have until 2024 to implement the $15.00 per hour minimum wage. The minimum wage for small employers increases from $11.50 effective July 1, 2017 to $12.00 per hour effective July 1, 2018 and then incrementally increases on July 1 of each year to $12.50 per hour in 2019; $13.00 per hour in 2020; $13.50 per hour in 2021; $14.00 per hour in 2022; $14.50 per hour in 2023; and finally to $15.00 per hour in 2024.

The number of employees at an employer is determined by the employer’s average number of employees per calendar week during the preceding calendar year for all weeks during which at least one employee worked for compensation. For employers that did not have employees in the preceding calendar year, the number of employees must be calculated based on the average number of employees who worked for compensation per calendar week in the first 90 calendar days of the current year in which the employer engaged in business, effective as of the time the employer first becomes subject to the Act and remains subject to any section of the Act.

Will the law last?


The County Executive’s signature of the bill into law stands in contrast to his veto of similar legislation passed by the County Council in January 2017, under which the $15.00 minimum wage would be effective by July 1, 2020. Under previous law that was enacted in 2014, also under Mr. Leggett’s leadership, the County’s $9.25 per hour minimum wage, which was effective July 1, 2016, increased to $11.50 per hour effective July 1, 2017.

Yet in January 2017, Mr. Leggett’s reported concern was that the legislation would put Montgomery County at a “competitive disadvantage…compared to…neighboring jurisdictions.” By comparison, the $9.25 per hour minimum wage in Prince George’s County increased to $11.50 per hour on July 1, 2017. In the District, the current minimum wage of $12.50 is on track to increase incrementally to $15.00 per hour by July 2020, the same date as the proposed legislation in Montgomery County. In his January 2017 veto message, Mr. Leggett also commissioned a study of the economic impact of a $15.00 per hour minimum wage on the County’s public, private, and non-profit sectors and pushed for a revised bill that extended the wage increase’s phase-in to 2022, and which included an exemption for small businesses and youth workers.

On the whole, most of the conditions Mr. Leggett sought are not satisfied by or do not support the current law. Indeed, the study commissioned by the County Executive fails to make any finding about the impact of the minimum wage increase on non-profit employers in Montgomery County. Opponents of the legislation in Montgomery County, as with those opposed to the $15.00 per hour minimum wage trend, have long argued that such sharp wage increases lead to layoffs and overburden businesses. For example, the study projected that approximately 47,000 jobs would be lost by 2022 as a result of the County’s increase in the minimum wage. Out of those jobs, approximately 43,500 of the lost positions were expected to be for low-wage workers. And far from exempt, under the new law, small businesses must implement the increase to $15.00 per hour by 2024, just three years after large employers are required to do so in four years’ time by 2021.

So why enact this law now? Interestingly, and perhaps as an acknowledgement of the risks the $15.00 per hour minimum wage mandate presents so soon after a recession and as a nod to the business interests in the County, the law provides for the suspension of the minimum wage increases in the event economic conditions do not support a minimum wage increase. Between 2018, and annually until 2024, the County’s Director of Finance must certify to the County Council and Executive whether any of the four following conditions are met:

  1. whether total private employment for Montgomery County decreased by 1.5% from April 1 to June 30 of the previous year, as compared to the total private employment in June and the total private employment in April, as reported by Maryland’s State Department of Labor Licensing, and Regulation’s (DLLR’s) Quarterly Census of Employment and Wage data series;
  2. whether total private employment for the County decreased by 2% from January 1 to June 30 of the previous year, compared to total private employment in June to total private employment in January, as reported by DLLR;
  3. whether the gross domestic product of the United States, as published by the U.S. Department of Commerce, has experienced negative growth for the preceding two quarters; and
  4. whether the National Bureau of Economic Research has determined that the United States economy is in recession.
The law provides that in any given year, if any of these conditions is satisfied, the County Executive may temporarily suspend the minimum wage increases for a year, and if the Executive does so, implementation of the minimum wage increases that follow the temporary suspension must be postponed by an additional year.

By signing the law with this provision in the third year of his third and final term as County Executive, Mr. Leggett appears to receive the benefit of embracing and signing a $15.00 per hour minimum wage into law, while simultaneously leaving the door open for his successor to suspend its implementation if economic conditions do not support it.

Written by Puja Gupta.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

Tuesday, November 7, 2017

Small Steps Toward Greater Whistleblower Protections

On October 26, 2017, the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 became law. Officially referenced as Pub. L. 115-73, this statute had tragic origins: Dr. Kirkpatrick was fired from the Tomah Veterans Affairs Medical Center after he blew the whistle on how his patients were receiving disturbingly high doses of drugs that prevented him from providing them with proper psychiatric treatment. After Dr. Kirkpatrick gathered his personal belongings, he secured care for his dog, wrote to tell his girlfriend he loved her, and committed suicide. The Veterans Administration never investigated Dr. Kirkpatrick’s death.

In response, Congress enacted the following changes:
  1. Under Sec. 102, when the Merit Systems Protection Board (“MSPB”) stays an action proposed against a potential whistleblower, including probationary employees, the head of the employing agency must give priority to any request for a transfer by the employee. Additionally, the Comptroller General of the United States must submit a report on the subject of retaliation against probationary employees.
  2. Under Sec. 103, a new prohibited personnel action is added to forbid agencies from accessing the medical records of employees or applicants in furtherance of the original 13 prohibited personnel practices.
  3. Under Sec. 104, if a supervisor is found to have retaliated against a whistleblower, the head of the employing agency must, at minimum, propose a 3-day suspension for a first offense, and must propose the supervisor’s removal from federal service after a second offense. 
  4. Under Sec. 105, if a whistleblower commits suicide, the head of the agency must refer this information, as well as any information in its possession relating to the circumstances of the suicide, to the Office of Special Counsel, who will examine whether the whistleblower had been retaliated against and who will take any action it deems appropriate within its authority.
  5. Under Sec. 106, agencies must provide training on handling complaints of whistleblower retaliation to all new supervisors and to all supervisors on an annual basis.
  6. Under Sec. 107, the heads of covered agencies are responsible for preventing retaliation against whistleblowers and for ensuring that employees are informed of their rights and the available avenues for relief. 
The Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 became law after passing unanimously in both houses of Congress. The Senate Report notes that Special Counsel Lerner cited numerous examples of the VA failing to discipline officials found responsible for posing significant risks to public health and safety or engaging in other misconduct. Special Counsel Lerner added that this lack of discipline “stand[s] in stark contrast to disciplinary actions taken against VA whistleblowers . . . for minor indiscretions or for activity directly related to the employee’s whistleblowing.”

Astoundingly, this is not the first time that it took the death of a whistleblower to instigate much needed change: we have previously written about the Kate Puzey Peace Corps Volunteer Protection Act of 2011, which was enacted after Peace Corps Volunteer Kate Puzey was brutally murdered in retaliation for her whistleblowing about sexual assaults.

Even now, our intelligence community whistleblowers are exempt from many protections that other federal employees enjoy. On the very day that the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 became law, the Federal Circuit issued Parkinson v. Department of Justice, which denied preference-eligible (veteran) FBI employees who face retaliation for whistleblowing any recourse to the MSPB. Parkinson is a stark reminder that while Congress has made small steps towards greater protection, more remains to be done. Let it be before any more lives are lost.

By Nina Ren



This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.