Jeffrey Longs, represented by attorneys Venita Martin (click here) and Andre Mathis (click here) of the Glankler Brown law firm in Memphis, scored a big victory in a retaliation case against Ford Motor Co., which was tried in the Western District of Tennessee last week before Chief Judge Jon P. McCalla.

The jury awarded 1M plus to Mr. Longs, who alleged he was fired for complaining about age and race discrimination. The jury verdict is attached. Jury Verdict Form

Is an oral complaint of a violation of the Fair Labor Standards Act (FLSA) protected conduct under the FLSA’s anti-retaliation provision? That’s the question that U.S. Supreme Court has agreed to decide.

On Monday, the Court granted cert in Kasten v. St. Gobain Performance Plastics. (click here).

There’s a split among the circuit court of appeals as to whether an oral complaint is sufficient to give rise to protection from retaliation under the FLSA’s ant-retaliation provision, which is codified at 29 U.S.C. § 215(a)(3). (click here to see statutory language).

Hopefully, the Court will determine that an oral complaint is sufficient to give protection from retaliation under the FLSA. It doesn’t make sense that a written complaint (scrawled on a napkin for example) would be deemed protected activity whereas an oral complaint (made on the company’s phone hotline for example) would not be protected activity.

Mr. Kasten is represented by James Kaster with the Nichols Kaster firm based in Minneapolis. click here. Go Jim!

In an opinion issued today, the 6th Circuit reversed summary judgment in favor of the defendants in a First Amendment retaliation case. The case is styled Kindle et al. v. City of Jefferstown et al. Click on the following link to read the opinion. 10a0159n-06.

Here are the facts: The plaintiffs, who worked for the Jeffersontown, KY police department, wrote a report particularly critical of a supervisor and were terminated shortly thereafter. The district court dismissed the plaintiff’s First Amendment retaliation claim holding that the plaintiffs’ speech did not address a matter of public concern.

On appeal, the 6th Circuit noted that in determining whether a public employer has violated an employee’s First Amendment rights of free speech, the U.S. Supreme Court has instructed courts to engage in a three-step inquiry. First, a court must determine whether the relevant speech addressed a matter of public concern. Second, if the answer is yes, the court must balance between the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. Third, the court must ascertain whether the employee’s speech was a substantial or motivating factor in the employer’s decision to take the adverse employment action against the employee.

Citing various U.S. Supreme Court cases, the 6th Circuit also noted that “statements by public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors.”

According to the 6th Circuit, whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement. Matters of public concern include speech that relates to any matter of political, social, or other concern to the community. But speech dealing with matters only of personal interest to a public employee is generally not afforded constitutional protection.

Analyzing the content of the report submitted by the plaintiffs, the 6th Circuit noted that it had consistently held that speech on the same topics as the report–the efficacy and operations of public agencies and allegations of misconduct by public
officials–addressed matters of public concern. Thus, the 6th Circuit held that the district court erred in granting summary judgment to the defendants and found that the plaintiffs’ speech was protected by the First Amendment because it touched on a matter of public concern. The case was remanded for the district court to address the remaining prongs of the Pickering balancing test.

A friend, who owns a small business recently asked me if he could terminate one of his employees should the employee refuse to take a drug test. My friend suspects that the employee is illegally obtaining and using prescription pain medicines and believes that use of these medicines is affecting his job performance.

The answer is pretty clear. Under a drug testing program, which properly complies with Tennessee’s drug free workplace act, see generally T.C.A. 50-9-101 et seq., “[i]f an employee or job applicant refuses to submit to a drug or alcohol test, the covered employer is not barred from discharging or disciplining the employee or from refusing to hire the job applicant.” See T.C.A. 50-9-108(f)

For general history on Tennessee’s drug free workplace act, see Interstate Mechanical Contractors, Inc. v. McIntosh, 229 S.W.3d 674, 679-80 (Tenn. 2007). This case, which involved a claim for workers’ compensation benefits by an injured worker who tested positive for marijuana, also generally discusses the statutory incentives to employers who implement a drug free workplace program.

It’s been a busy last couple of weeks. One issue I have been dealing with is an opposing counsel’s attempt to have me agree to language in a proposed settlement agreement between my client (employee) and his client (employer) that I will refrain from representing other individuals in legal matters against his client. By way of background, during the course of depositions taken in the case, it became apparent to myself, as well as opposing counsel, that other current employees at the company may also have legal claims against the company.

I have only had this come up once before in my practice. Strangely, this was also a recent topic on an attorney list serve that I am a member of.

Fortunately, there is an ethical rule on point, which forbids such attempts at restricting an attorney’s right to represent whoever the attorney chooses to represent. Click here.

As you can see, TRPC 5.6(b) provides, quite clearly I might add, that “[a] lawyer shall not participate in offering or making . . . an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a controversy between private parties.” Comment [2] to TRPC 5.6 further states that “[p]aragraph (b) prohibits a lawyer from agreeing not to represent other persons in connection with settling a claim on behalf of a client.”

When advised of this rule, opposing counsel deleted the proposed language and we moved on to argue about other matters! In any event, it is worth noting that attempting to refrain an attorney from representing other persons is forbidden in Tennessee.