Last week the 6th Circuit issued its opinion in Hunter v. Valley View Local Schools
— F.3d —-, 2009 WL 2601863 (6th Cir. Aug. 26, 2009). hunter-v-valley-view-decision.pdf

This decision represents a significant change in analyzing and proving FMLA discrimination/retaliation claims. And in my opinion, the decision favors plaintiffs who bring these types of claims.

Following the U.S. Supreme Court’s decision in Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2348-49 (2009), which distinguished statutes that permitted single motive and mixed-motive claims, the 6th Circuit held that the FMLA, like Title VII, authorizes claims in which an employer bases an employment decision on both permissible and impermissible factors.

Thus, under the 6th Circuit’s new standard, if a plaintiff presents evidence establishling that a defendant has discriminated/retaliated against the plaintiff because of the plaintiff’s FMLA leave, then the burden shifts to the defendant to prove by a preponderance of the evidence that it would have made the same decision absent consideration of the plaitniff’s FMLA leave.

Accordingly, the plaintiff will win the case unless the defendant can prove it would have taken the adverse action whether or not it considered the plaintiff’s FMLA leave in its employment decision.

When advising clients to complain internally about discrimination in the workplace, I generally advise that the complaint should be made in writing. A written internal complaint (as well as an oral internal complaint) will generally qualify under most federal and state laws as protected activity. Thus, the employer will be prohibited from retaliating against the employee who has made the complaint.

I also advise that the content of the complaint be targeted and specific. This is very important. Why? Because vague complaints that simply discuss adverse treatment – in a general mannner – are often not considered by the courts to constitute protected activity. See, e.g., Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989)(holding letter written by employee did not directly contest an unlawful employment practice; therefore, the court found the employee had not engaged in protected activity). Accordingly, it behooves an employee to expressly state that they believe their rights are being violated under the law, for example, because of differential treatment based on sex.

A recent case from the W.D. of Tenn. further discusses the content that must be found an internal complaint to give rise to protected activity. See Longs v. Ford Motor Co., 2009 WL 2461390 (W.D. Tenn. Aug. 10, 2009). In the Longs case, the court held that the employee’s internal complaints were general in nature and did not contain sufficient facts to create an inference that the employee was opposing an illegal employment practice.

I recently filed a case under the Fair Labor Standards Act (FLSA) alleging that my client was not properly compensated for all hours that he worked because he was not paid for travel time from his company shop, where he was required to report to pick up materials and tools, to the job site.

Under the Portal-to Portal Act, employers are not required to compensate employees for time spent commuting between home and their workplace. See 29 U.S.C. 254; see also 29 C.F.R. 785.35. Importantly, however, a separate FLSA regulation provides that “[t]ime spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked.” 29 C.F.R. 785.38.

Specific to my client’s case, 29 C.F.R. 785.38 also provides that “[w]here an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day’s work, and must be counted as hours worked regardless of contract, custom, or practice.” Id.. See also Bleichner v. Spies Painting & Decorating, Inc., 2009 WL 281145 (W.D.Wis. Feb. 3, 2009)(holding plaintiff was entitled to be compensated for time spent traveling from company shop to job site); Ladegaard v. Hard Rock Concrete Cutters, Inc., 2004 WL 1882449 (N.D.Ill. Aug. 18, 2004)(same); Chao v. Akron Insulation & Supply, Inc., 2005 WL 1075067 (N.D.Ohio May 05, 2005)(holding shop time and travel time was compensable because these activities were indispensable parts of the employees’ principal activities).

Therefore, it is clear that under the FLSA travel time is compensable if it is travel that is all in a day’s work.

An attorney friend in east Tennessee (Jennifer Morton) alerted me about a new retaliation case from the 6th Circuit that involves a very interesting set of facts, i.e., an employer who subjects an employee to heightened scrutiny and harassment following the employee’s complaint of discrimination only to terminate the employee after the employee is alleged to have violated company policy. Upshaw v. Ford Motor Co., 6th Cir. Case No. 08-3246. upshaw-v-ford-motor-co.pdf.

In Upshaw, (see pages 19-24), the court held that the plaintiff employee had introduced evidence suggesting that the company violations relied on by the defendant employer as a basis for the employee’s termination were nothing more than “trumped up” charges. Thus, the court reversed the district court, which had granted summary judgment in favor of the employer, and remanded the case for a jury trial.

The court expressly stated (at page 24) that it is improper for an employer to wait for a
legal, legitimate reason to fortuitously materialize, and then use the reason to cover up the true, longstanding motivations for firing the employee.

Accordingly, even if the adverse action taken against an employee is not close in time to the employee’s protected activity, evidence of an “overly punitive” adverse action may be enough to establish retaliatory motive and get the case to a jury.

The 6th Circuit just issued an important decision concerning a FLSA case. See O’Brien v. Ed Donnelly Enterprises, Inc., 2009 WL 2382437 (6th Cir. Aug. 5, 2009). 09a0273p-06.pdf. Here are some key highlights:

First, court held that the district court properly dismissed individual plaintiffs’ FLSA claims where the defendant had made the plaintiffs a Rule 68 offer of judgment that provided full relief to the plaintiffs. Specifically, the court held that an offer of judgment that satisfies a plaintiff’s entire demand moots the case. Significantly, the court noted that its decision did not implicate a FLSA collective action case. The court cited to Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 922 (5th Cir.2008) for the proposition that a Rule 68 offer of judgment cannot moot a lead plaintiff’s FLSA claim when the lead plaintiff timely moves for collective certification, because the motion relates back to the lead plaintiff’s filing of the complaint.

Second, with respect to an award of attorney’s fees in a FLSA case, the court held that the FLSA’s attorney’s fee provision found at 29 U.S.C. 216(b) did not prohibit a prevailing plaintiff from recovering attorney’s fees for worked performed in a previously filed case so long as the work performed beneficially attributed to success in the subsequently filed case.

Third, for the first time, the 6th Circuit addressed a district court’s decertification of a collective action. As an initial matter, the court held that it would review a district court’s certification rulings in FLSA collective action cases under an abuse of discretion standard. Next, the court addressed the meaning of the phrase “similarly situated” found at 29 U.S.C. 216(b) in connection with a decertification motion. The court also discussed various rules and principles that should guide district courts in determining whether the opt-in plaintiffs in a collective action are “similarly situated” to the named plaintiffs for purposes of trial. Specifically, the court endorsed a district court’s consideration of a variety of factors, including the: the factual and employment settings of the plaintiffs; the different defenses to which the plaintiffs may be subject on an individual basis; and the degree of fairness and procedural impact of certifying the action as a collective action. Importantly, the court stated that named plaintiffs are not required to demonstrate the existence of “unified policy” violation in order to establish that the opt-in plaintiffs are similarly situated to the named plaintiffs. Applying these factors to the facts of the case, the court held that the plaintiffs were similarly situated because their claims were unified by common theories of defendants’ statutory violations, even if the proofs of these theories are inevitably individualized and distinct.

Additionally, the court advised that district courts should examine whether partial decertification is possible in FLSA collective actions. According to the court, the option of partial certification is important, because it counters a defendant’s argument that a collective action must be totally decertified if some members are not similarly situated to the others. Thus, plaintiffs who are not similarly situated or plaintiffs who did not allege suffering under the alleged unlawful practice could be dismissed while a partial class proceeded forward as a collective action.

Finally, with respect to damages in a FLSA case, the court cited to Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946) for the principle that when an employer keeps inaccurate or inadequate records, a FLSA plaintiff does not need to prove every minute of uncompensated work. Rather, a plaintiff can estimate their damages, thus shifting the burden to the employer. If the employer cannot negate the plaintiff’s estimate, then the court may award damages to the employee, even though the result be only approximate.

The Sixth Circuit recently decided an interesting case permitting a plaintiff employee’s revocation of a settlement agreement reached with her former employer. See Neely v. Good Samaritan Hosp., 2009 WL 2341513 (6th Cir. July 31, 2009).09a0531n-06.pdf.

In Neely, the plaintiff sued her former employer alleging race discrimination. The plaintiff had not alleged or raised a claim of age discrimination. After mediation, the parties reached a settlement agreement. The defendant then prepared a settlement for the plaintiff to sign.

Although the plaintiff had never raised an age discrimination claim against the defendant, the settlement agreement prepared by the defendant contained language releasing the defendant from an age discrimination claim. If a person is over the age of 40, as was the plaintiff employee in Neely, the federal Older Workers’ Benefit Protection Act (OWPA), see 29 U.S.C. § 626(f)(1)(F)(1)-(2), provides that the employee be given 7 days to revoke the agreement after it is signed if the employee is releasing the defendant from an age discrimination claim.

So in Neely, after the plaintiff signed the agreement she subsequently exercised her right to revoke the agreement. The defendant contested the revocation and sought to enforce the settlement agreement. The trial court enforced the settlement agreement, but gave the plaintiff the right to pursue an age discrimination claim. The 6th Circuit reversed. The 6th Circuit found that the language inserted in the settlement agreement by the defendant expressly gave the plaintiff the right to revoke the entire agreement, not just the age discrimination claim. Therefore, the entire settlement agreement had been properly revoked by the plaintiff.

In sum, had the defendant not sought the release of an age discrimination claim that had never been raised by the plaintiff then the plaintiff would never have been able to revoke the parties’ settlement agreement.