Another case decided by the 6th Circuit against an employee (See, e.g., Crawford, Pollard, Harris) has been accepted by the Supreme Court Of The United States.

On June 29, 2010, the SCOTUS granted Eric Thompson’s petition for a writ of cetriorari in his case against North American Stainless, L.P. Click here.

The issue before the Court is whether a third party is afforded protection under Title VII’s anti-retaliation provision based on his association with an employee who has engaged in protected activity.

An en banc 6th Circuit had held last summer that a third party such as Mr. Thompson was not afforded protection from retaliation based on his association with an employee (his fiancee’) who engaged in protected activity.09a0202p-06

I blogged about this unfortunate decision in June 2009. Click here.

Interestingly, the Court agreed to hear the Thompson case even though the U.S., through the Solictor General’s office, argued to the court that the case was not cert-worthy. 09-291_cvsg The U.S. did, however, argue that the 6th Circuit’s decision was in error.

The case will likely be argued before the SCOTUS in the fall of 2010 or early 2011. A decision is expected by spring of 2011.

The U.S. Department of Labor, Wage and Hour Division, issued its second Administrator’s Interpretation on June 16, 2010. Interpretation 2010-2

The AI concerns application of 29 U.S.C. 203(o).

In my opinion, this AI may very well have a significant impact in donning and doffing cases brought under the Fair Labor Standards Act (FLSA). In these cases, workers seek to be paid for time spent donning and doffing protective/sanitary gear, for example, and for time spent walking to the worksite.

In some circumstances, however, 29 U.S.C. 203(o) permits employers to not pay workers for time spent donning and doffing protective/sanitary gear and for time spent walking to the worksite.

Specifically, an employer can avoid paying for donning and doffing time, if the employer establishes that the workers are changing into “clothes” and that the employer and the workers’ union have expressly agreed to exclude such time as being compensable or a custom or practice exists between the employer and the union regarding the non-payment of time.

Many court cases recently have discussed what constitutes “clothes” as that term is defined at § 203(o).

AI 2010-2 defines the term “clothes” as used in § 203(o) in a narrow fashion as intended by Congress and rejects Opinion Letters issued by the DOL during the Bush Administration, which had greatly expanded the definition of “clothes”. Before the Bush Administration, the DOL had interpreted the term “clothes” in a narrow, pro-worker fashion that is consistent with the purpose and remedial scope of the FLSA. Thus, in my opinion AI 2010-2 restores the status quo.

Also, AI 2010-2 further states that clothes changing activity, which is covered by § 203(o), may constitute a principal activity under the FLSA. Accordingly, for example, walking time, which follows clothes changing activity covered under § 203(o), may be compensable even if the time spent changing clothes is not compensable.

An attorney friend in Nashville, David Cooper, has alerted me to a new decision by the Tennessee Court of Appeals, which holds that Tennessee’s whistleblower statute (Tenn. Code Ann. 50-1-304) only applies to employees who have been terminated or discharged from their employment.

COA – Harman v University of Tennessee

In the Harman case, the plaintiff, a professor at the University of Tennessee, was demoted, but not terminated.

The court of appeals’ decision was predictable give the language of the statute, which states that “[n]o employee shall be discharged or terminated solely for refusing to participate in, or for refusing to remain silent about, illegal activities.” T.C.A. § 50-1-304(b).

It’s my opinion, however, that the decision only applies to statutory whistleblower claims. I believe that a plaintiff suing a private entity may bring a claim for retaliatory demotion under Tennessee common law.

Unfortunately for Professor Harman, he was foreclosed from suing the University of Tennessee under a common law theory because governmental entities are immune from suit under Tennessee common law. See, e.g., Baines v. Wilson County, 86 S.W.3d 575 (Tenn. Ct. App. 2002)(holding governmental entity is immune from liability for the common law tort of retaliatory discharge).