According to the U.S. Equal Employment Opportunity Commission, of the 99,412 new charges of discrimination it received in Fiscal Year 2012, allegations of employment retaliation under all of the federal statutes enforced by the EEOC led with 37,836, or 38.1% of all charges — a new high, continuing the upward trend.
A retaliation claim can arise when an employee engages in some form of “protected activity” under a federal or state law and is then subjected to an “adverse employment action.” If the employee can show the protected activity was causally connected to the adverse employment action, his or her employer may be liable under the applicable statute. However, each statute provides different remedies and may define “protected activity” and “adverse employment action” differently.
A retaliation claim can be brought under an alarming array of federal and state statutes, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Equal Pay Act, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, the Fair Labor Standards Act, the Family and Medical Leave Act, the Florida Civil Rights Act, the Florida Whistleblower Act, and the Florida Workers’ Compensation Act, among others.
Giving employers encouraging news, the U.S. Court of Appeals for the Eleventh Circuit, which rules on cases from Florida, Georgia, and Alabama, has issued some favorable decisions recently. For example, in Miller v. Roche Surety and Casualty Co., Inc., 2012 U.S. App. LEXIS 26364, the Court rejected the employee’s claim for unlawful retaliation under the FLSA. The employee claimed she engaged in protected activity when she requested the employer provide her with time and a private place to express milk. The Court stated that, unlike under the Family and Medical Leave Act, merely requesting an employer comply with the FLSA is not “protected activity.” The employee must make a complaint about a potential violation.
In another FLSA retaliation case, the Court upheld the rejection of liquidated damages, holding that in retaliation cases, unlike overtime or minimum wage cases, liquidated damages are not mandatory and are left to the discretion of the court. Moore v. Appliance Direct, Inc., 2013 U.S. App. LEXIS 3047. A jury had found the employer retaliated against its employees for filing a suit alleging FLSA violations. Before the plaintiffs filed their first lawsuit for overtime violations, the employer began converting all of its delivery drivers, except for the plaintiffs, from employees to independent contractors. In upholding the jury verdict, the trial court found the employer’s failure to offer the plaintiffs an opportunity to become independent contractors was an “adverse employment action” under the FLSA. However, it denied liquidated damages even though the employer did not prove it acted in good faith, finding that liquidated damages are discretionary in retaliation cases.
In Morgan v. Orange County, 2012 U.S. App. LEXIS 10335, the Eleventh Circuit rejected an employee’s FMLA retaliation claim because he failed to follow the employer’s routine absence notification procedure. While employed with Orange County, the plaintiff told a supervisor who was not his immediate superior that he would be absent from work the next day due to an FMLA-related illness. He failed to report his continuing absence over the next five days. Following an investigation, the employer found the plaintiff had violated its call-in procedures for reporting FMLA leave and had committed “fraud or dishonesty.” The plaintiff’s employment was terminated. Finding that the termination was not retaliation for requesting or taking FMLA leave, the Court upheld the termination for violating the call-in procedures.
Finally, in Brush v. Sears Holdings Corp., 2012 U.S. App. LEXIS 6145, the Eleventh Circuit adopted the “manager rule” for Title VII and Florida Civil Rights Act retaliation claims, concluding the retaliation provisions do not make an employee’s mere expressed disagreement with her supervisor’s actions protected activity. Under the “manager rule,” a management employee who, in the course of her normal job performance, disagrees with or opposes the employer’s actions does not engage in “protected activity” for purposes of a retaliation claim. Instead, to qualify as “protected activity,” the action must cross the line from being the employee performing her job to lodging a personal complaint. Thus, the employee in this case did not engage in protected activity when she complained about the way the company was investigating another employee’s harassment claim.
Even given the recent employer-friendly decisions from the Eleventh Circuit, employers need to lower the risk of such claims being brought in the first place. Employers should consider training (and retraining) supervisors on handling complaints that may be brought directly to them, instead of human resources, and ensuring that employees are not discouraged from reporting concerns for fear of retaliation. The key to prevailing in these cases is often good documentation of the employee’s discipline and performance history.