My client filed a charge of age discrimination with the EEOC. I am now getting ready to file a case under the Age Discrimination in Employment Act (ADEA) in federal court on behalf of my client. My client has not yet received a right-to-sue letter from the EEOC, but that is not going to stop us from filing suit. Why?

Because under the ADEA a plaintiff can file suit for age discrimination following the passage of 60 days after the charge of discrimination has been filed even though a right-to-sue letter has not been issued by the EEOC. See 29 U.S.C. 626(d)(1)(”No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission.”)

This statutory provision is unique to the ADEA. A right-to-sue letter is required to be issued by the EEOC before a plaintiff is permitted to file suit under Title VII for discrimination based on race, color, sex, national origin or religion or for disability discrimination under the ADA.

I was recently explaining to a potential client that the law that potentially provided her protection (the FMLA (Family and Medical Leave Act)) did not permit the recovery of compensatory damages or punitive damages. (She had inquired whether she could recover compensation for the emotional harm she contended she had sustained).

In lieu of compensatory damages and punitive damages, I explained that the FMLA, as well as a number of other federal employment laws (e.g. ADEA (Age Discrimination in Employment Act) and FLSA (Fair Labor Standards Act)) permit the recovery of liquidated damages.

Under the ADEA, FMLA, and FLSA, an award of liquidated damages essentially means a certain sum of damages that will be awarded in addition to the economic damages recovered in the case. Importantly, the standard for awarding liquidated damages under the ADEA differs from the standard for awarding damages under the FMLA and FLSA.

The ADEA’s liquidated damages provision states “that liquidated damages shall be payable only in cases of willful violations of this chapter.” 29 U.S.C. 626(b). According to Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985), a violation is “willful” under the ADEA occurs if the employer knew its conduct was prohibited by the ADEA or showed a “reckless disregard” for whether it was prohibited, but not if the employer simply knew of the potential applicability of the ADEA or that ADEA was “in the picture.” Thus, an award of liquidated damages under the ADEA is not mandatory.

Under the FMLA, 29 U.S.C. 2617(a)(1)(A)(iii) provides that an employer shall be liable for an amount of liquidated damages equal to the amount of wages, salary, employment benefits, or other compensation denied or lost to an employee, plus interest, by reason of the employer’s violation. Importantly, the district court may reduce the liquidated damages award only if the employer “proves to the satisfaction of the court that the act or omission which violated section 2615 of this title was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of section 2615.” 29 U.S.C. § 2617(a)(1)(A)(iii). The employer must therefore show both good faith and reasonable grounds for the act or omission to avoid the imposition of an award of punitive damages. Chandler v. Specialty Tires of America (Tennessee), Inc., 283 F.3d 818, 827 (6th Cir. 2002).

Likewise, under the FLSA, 29 U.S.C. 216(b) provides that an employer who violates the overtime compensation provisions of the FLSA “shall be liable” for liquidated damages in an amount equal to unpaid back wages. A court may, in its discretion, refuse to award liquidated damages, but “only if, the employer shows that he acted in good faith and that he had reasonable grounds for believing that he was not violating the Act.” Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 968 (6th Cir.1991).

On behalf of our client Alice Franklin, we recently filed our opening appeal brief in the case of Alice Franklin v. Kellogg Co. opening-brief.pdf

My co-counsel Rachhana Srey with Nichols Kaster (click here) did a great job in taking the lead on writing the brief, which is always an arduous task. [Although being able to file the brief electronically is really nice as compared to the "old days" when you had to file paper copies and assemble the joint appendix if you were the appellant].

The case is brought under the Fair Labor Standards Act (29 U.S.C. 201 et seq.) and seeks compensation for time spent by Ms. Franklin and others similarly situated for changing in and out of Kellogg Co. required sanitary and protective gear. We are also seeking compensation for walking time after donning the sanitary and protective gear.

A number of interesting issues are presented in the appeal. First, the 6th Circuit is asked to address the affirmative defense raised by Kellogg Co. under 29 U.S.C. 203(o). This may well be the first time that the 6th Circuit has addressed this affirmative defense. We next ask the 6th Circuit to address the affirmative defense raised by Kellogg Co. under 29 U.S.C. 259(a). This defense is premised on reliance on opinion letters from the U.S. Dept. of Labor.