I recently had to research whether Tennessee Supreme Court had expressly recognized the doctrine of “constructive discharge”. The answer is yes.

The doctrine, which is well established under federal law, can generally be described as a claim by an employee that he/she was forced to resign their employment because of intolerable working conditions.

It turns out that Tennessee explicitly adopted the doctrine of constructive discharge a number of years ago. In Campbell v. Florida Steel Corp., 919 S.W.2d 26, 34 (Tenn. 1996), which involved a hostile work environment claim under the Tennessee Human Rights Act, the court held that a plaintiff can establish that they were “constructively discharged” from their employment by “showing that a reasonable employer would have foreseen the employee’s resignation, given the intolerable conditions of employment.” Thus, to establish a constructive discharge claim, the court said that “an employee need only show that the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign.” Id.

Practicing in Memphis, TN on the border of Tennessee and Mississippi, I am frequently asked whether Tennessee and Mississippi employees have the right to view and/or obtain a copy of the personnel file kept by their employer. The short answer is, “no”. Unfortunately, Tennessee law, as well as Mississippi law, does not require employers to make personnel files available for viewing and/or copying.

Further, there is no federal law that requires employers to make personnel files available to employees. It is a state by state issue. Some states, like Michigan, have enacted laws that permit employees to view and copy their personnel file upon written request, but Tennessee and Mississippi have not.

Of course, if an employee files a lawsuit against the employer alleging a wrongful/illegal act, the employee’s personnel file will be certainly be able to be obtained during the discovery phase of the lawsuit. And many employers realize this fact. Thus, some employers permit their employees to inspect and/or copy their personnel files knowing that this may help to diffuse legal action.

But the bottom line is that in Tennessee and Mississippi personnel files are considered the property of the employer and no right to view and copy is granted to Tennessee and Mississippi employees.

What happens if you request FMLA leave and your employer grants you FMLA leave, but your employer later advises you that it made a mistake and you were not entitled to take FMLA leave? Do you still get the protections (e.g. job reinstatement) that the FMLA affords? Maybe.

The answer depends on whether you can establish the elements of the doctrine of equitable estoppel. This doctrine generally works to prevent party #1, who made a factual representation to party #2 on which party #2 reasonably relied, from denying the gain or value that party #2 acquired as a result of reliance on the misrepresented fact.

A new case from the 6th Circuit clarifies that the doctrine of equitable estoppel may be invoked by an employee in a FMLA case to prohibit an employer from arguing that the FMLA does not cover the employee where the employer mistakenly grants the employee FMLA leave. See Dobrowski v. Jay Dee Contractors, Inc., ____ F.3d ____, 2009 WL 1940368 (6th Cir. 2009). opinion.pdf

Previously, many employers in the 6th Circuit argued that absent a showing of bad faith by the employer or an intent to mislead an employee, the doctrine of equitable estoppel should not be applied. In other words, employers argued that “mistakes” on the part of the employer could not give rise to a successful invocation of the doctrine of equitable estoppel.

In Dobrowski, no bad faith or intent to mislead on the part of the employer existed; the case simply involved an employer who mistakenly advised an employee that the employee was eligible for FMLA leave when it was undisputed that the employee did not meet the FMLA’s eligibility requirements.

Anayzing U.S. Supreme Court cases, as well as cases from the 6th Circuit and other appellate circuits, the Dobrowski court held that a showing of bad faith or intent to mislead on the part of the employer was not necessary for the doctrine of equitable estoppel to apply.

Instead, to prevail on an equitable estoppel argument in a FMLA case, the Dobrowski court stated that an employee need show only: (1) a definite misrepresentation as to a material fact, (2) a reasonable reliance on the misrepresentation, and (3) a resulting detriment to the party reasonably relying on the misrepresentation.

Thus, under the 6th Circuit’s rule, an employee in a FMLA case does not have to establish bad faith on the part of the employer or an intent to mislead on the part of the employer to successfully invoke the doctrine of equitable estoppel and receive the protections of the FMLA.

In a FLSA case decided last week, Solis v. Yang, 2009 WL 2017906 (6th Cir. July 10, 2009), the 6th Circuit rejected a defendant employer’s argument that it should not have to pay liquidated damages under the Fair Labor Standards Act. The defendant employer operated a Chinese restaurant/buffet.

Under 29 U.S.C. § 216(b) of the FLSA, any employer who violates the minimum wage law or overtime law shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation PLUS an additional equal amount as liquidated damages.

However, liquidated damages may not be awarded if the employer shows that “the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act.” 29 U.S.C. § 260.

In the Yang case, the defendant employer claimed ignorance of the law, adherence to Chinese cultural practices, and language difficulties as bases for invoking the good-faith standard.

But the court rejected this argument holding that to demonstrate good faith requires more than the absence of intent or knowledge. And the court also held that the presence of a language barrier is not relevant as to whether there were objectively reasonable grounds for the employer to believe itself to be in compliance with the FLSA.

Thus, the 6th Circuit concluded that a good heart but an empty head does not produce a defense against liquidated damages under the FLSA.

We filed a new FLSA collective case today. It again involves the pay practices of a cable tv contracting company.

The case we filed is styled Robert W. Hadley, Jr. and Xavier Becton v. The Cable Guys, Inc. and Burge Franks, W.D. Tenn. Case No. 09-2451-cgc. Here’s a copy of the complaint. 001-complaint.pdf

The Plaintiffs, who worked for the Defendants as installers or technicians, allege they were misclassfied by the Defendants as independent contractors (as opposed to employees) in an effort to avoid paying them overtime wages. The Plaintiffs also allege that after they were finally classified as employees by the Defendants that they were still deprived of properly earned overtime compensation.

To be eligible for this lawsuit:

1. You must have worked as a installer or technician for The Cable Guys, Inc. at any time within the past three years; and,

2. You must have worked overtime for which you were not paid (you do not need any records of your overtime hours worked) and/or time worked off the clock.

To join the lawsuit, you must complete a Consent Form and return it to us immediately for filing with the Court. Here’s a copy of the consent form. consent-form.pdf

There is a federal statute of limitations in this case that only allows you to recover pay for overtime hours worked within 2 years of signing up for the lawsuit. If we can prove the Defendants willfully violated the law, the statute of limitations may be extended to 3 years. Therefore, it is important that you return your Consent Form immediately to avoid losing overtime pay because of the statute of limitations.

If you have information that may assist us with this case, please contact Billy Ryan at 901-278-1004 or 800/521-0578.

The Seventh Circuit Court of Appeals recently issued a decision holding that an internal, verbal complaint by an employee to an employer does not give the employee protection from retaliation under the Fair Labor Standards Act (FLSA). See Kasten v. Saint-Gobain Performance Plastics Corp., 2009 WL 1838291 (7th Cir. June 29, 2009).

As an initial matter, the Seventh Circuit agreed with the Sixth Circuit (See Moore v. Freeman, 355 F.3d 558 (6th Cir.2004)) that an internal complaint will suffice as protected activity under the FLSA’s anti-retaliation provision. But the Seventh Circuit disagreed with the Sixth Circuit (See EEOC v. Romeo Community Schools, 976 F.2d 985, 989-90 (6th Cir.1992)) that a verbal complaint, as opposed to a written complaint, would give rise to protection from retaliation.

The Seventh Circuit argued that its decision was based on the statutory language of the FLSA’s anti-retaliation provision, which prohibits “discharg[ing] … any employee because such employee has filed any complaint….” See 29 U.S.C. § 215(a)(3). The Seventh Circuit interpreted the phrase “filed any complaint” as requiring a written complaint, rather an a purely verbal complaint.

This is a bad decision for employees in the Seventh Circuit, which is comprised of the states of Illinois, Wisconsin and Indiana. In these states, an employee who verbally complains to management about his company’s failure to properly pay overtime is unprotected from retaliation. Most employees generally lodge verbal complaints before reducing the complaint to writing. In the Seventh Circuit, failure to complain, for example, about an illegal overtime scheme in writing will not give an employee protection from retaliation.

In my opinion, the statutory language of the FLSA’s anti-retaliation provision is less than clear, i.e., ambiguous, and would seem to encompass a verbal complaint. Further, the remedial nature of the FLSA would also seem to require that a verbal complaint would give rise to protection from retaliation.

Fortunately, the law in the Sixth Circuit is not as harsh.