The U.S. Supreme Court issued two recent opinions that negatively affect the rights of every employee in Minnesota and across the country.
In University of Texas Southwestern Medical Center v. Nassar, the issue before the court was the standard a plaintiff needs to meet in order to prove a retaliation claim under Title VII. As you may recall, Title VII is the federal law that, among other things, prohibits discrimination and retaliation in employment based on a person's race, color, religion, sex, or national origin. The court was presented with the question of what standard a plaintiff had to prove in order to succeed on a claim of retaliation. A claim of retaliation typically exists when an employee complains of discrimination in the workplace and then suffers some type of adverse employment action (termination, demotion, cut in pay, etc.) as a result.
As recognized in the SCOTUS Blog, Congress and the court have had a unique "back-and-forth" about what a plaintiff has to prove to succeed on a claim brought under Title VII. Like many employment law statutes, Congress approved Title VII and the Supreme Court then began narrowly interpreting it in a series of decisions. Specifically, the court had previously held that a plaintiff need to prove that "but for" their race, color, religion, etc., they would not have suffered the adverse employment action at issue. This meant that even if a plaintiff could prove an employer's decision was based in part on an improper motive such as sex, they could still lose if the jury believed the employer would have fired them anyway.
In 1991, Congress acted and overturned those decisions. Specifically, the court adopted a "motivating factor" test that, in essence, allowed the plaintiff to prevail if she could show an improper motive was one of many "motivating factors" in the adverse employment decision.
The issue before the court in Nasser was whether the motivating factor test applied to retaliation claims. The court held that it does not. Justice Alito, writing for the 5-4 majority, stated that retaliation claims are to be decided using the "but for" analysis. Justice Ginsberg, who read her dissent in court, specifically called on Congress to overturn this decision because the court has, on numerous occasions, held that retaliation is simply another form of discrimination.
In sum, this decision makes it more difficult for plaintiffs to prove a claim of retaliation under federal law. Employees in Minnesota still may bring a retaliation claim under the Minnesota Human Rights Act, which applies the motivating factor test.
The second case is Vance v. Ball State University. In that case, the court further defined who constitutes a "supervisor" in claims for workplace harassment. Specifically, the court held that a supervisor is limited to someone authorized to take “tangible employment actions” like hiring, firing, promoting, demoting or reassigning employees to significantly different responsibilities. The court went on to hold that “the ability to direct another employee’s tasks is simply not sufficient” to call someone a supervisor. Limiting who constitutes a supervisor is significant because the burden to prove harassment against a supervisor is less burdensome than against a co-worker.
In the big picture, these cases materially limit employees' rights in the workplace.
Showing posts with label retaliation. Show all posts
Showing posts with label retaliation. Show all posts
Friday, July 12, 2013
Friday, February 24, 2012
Minnesota Is Still Better Than Wisconsin
I truly appreciate it when anyone reads this blog, whether they agree with me or not. And I especially appreciate receiving feedback about the issues I've raised. To that end, my cousin, Scott Welsh, who is a Wisconsin business owner (shameless plug for his real estate firm here) and fantastic human being, shot me a note giving me a ribbing on facebook for my recent post about the Wisconsin Assembly's vote to repeal the right to recover compensatory and punitive damages for employees who are the victims of employment discrimination. His comment stated:
"I know...."us" big bad employer's in Wisconsin have it made???"
I presume Scott was likely speaking on behalf of many Wisconsin business owners who aren't my friends on facebook. I also presume he withheld a number of expletives from his note because we were in each others' weddings.
I should also include this disclaimer: In addition to being a lawyer, I am also an employer. So if this post comes off as biased in favor of employers, please accept my apologies.
Anyway, Scott has a new champion in my friend Bart "T-Bomb" Torvik over at the Gillette-Torvik Blog, who is himself an attorney practicing in Illinois (just like Abe Lincoln!). I should note that it is an undisputed fact that Mr. Torvik is a rabid fan/supporter/martyr of and for Wisconsin. I'm not sure if that means he was sampled in this study or not.
T-Bomb has taken my recent Wisconsin v. Minnesota post, and his co-blogger Adam Gillette, to task by arguing, among other things, (1) that the Wisconsin Fair Employment Act (WFEA), which currently provides compensatory and punitive damages for victims of workplace discrimination, costs employers more and stifles job creation because it creates an additional level of administrative hearings, and (2) that employees can simply go to federal court because federal law provides the same remedies as the likely to be repealed WFEA. T-Bomb's blog post can be found here. T-Bomb does an admirable job defending my cousin Scott, but I have a few bones to pick with his analysis.
Currently, an employee may file a complaint of workplace discrimination with Wisconsin's Department of Workforce Development (DWD). The DWD has the power to investigate the claim, hold hearings and award an employee back pay, reinstatement, costs and attorneys' fees upon a finding that the employer engaged in discrimination. Repealing the WFEA in the manner proposed will not take away any of these administrative proceedings or remedies. Instead, under current law, after an employee has already proved discrimination once at a hearing in the DWD, she has to then go to state court and again prove discrimination in order to recover compensatory and punitive damages. It is the right to go to state court to recover these damages that is in danger of being repealed.
I can't dispute that the proposed legislation would reduce the attorneys' fees and costs (in addition to the potential damages) an employer may incur defending against a claim. But if reducing the cost of the proceedings is truly the goal here, then what the Assembly really should do is give the DWD the power to award compensatory and punitive damages after a hearing and finding of discrimination, rather than make the employee and employer go through two seperate proceedings. That would do away with the additional procedural cost of having to litigate the claim twice while requiring only those employers who are guilty of discrimination to pay more in damages. Win-win.
One could also argue that an employer could avoid unwanted attorneys fees and costs by not discriminating against the employee in the first place.
I also want address T-Bomb's argument that anti-discrimination laws cost employers money. Of course they do. But taking that argument to its logical conclusion means we should do away with all anti-discrimination legislation because they cost employers money and may, theoretically, result in less employees being hired. I know there are probably people out there who think that may be a good thing. My guess is that they have never met or do not really know someone who has been the victim of discrimination. Moreover, while it has had its ups and downs, I think the American economy has done quite well since 1964 when Title VII, the first federal anti-discrimination statute, was enacted into law. At the same time, minorities, women and others have received substantial benefits at work and in society at large because of these anti-discrimination statutes.
I also take issue with the whole premise that reducing the damages paid by employers that have been proven guilty of discrimination will create jobs. First, there is no guarantee that the employer who is relieved of paying compensatory and punitive damages is going to run out, create a new job and hire a new employee with that "savings." Second, are these the employers we want creating jobs? Remember, these are folks who have already been found guilty of workplace discrimination. My guess is that working for an employer who discriminates against its employees is much more demoralizing than working for an employer who does not discriminate in the workplace.
This management study argues that high employee morale leads to an increase in productivity and other significant benefits while low employee morale leads to a decrease in productivity, employee turnover, and other significant costs to the employer. So by letting guilty employers keep some of that cash, Wisconsin is encouraging the creation of jobs that will necessarily be less productive than if those funds were used elsewhere. No wonder they are drinking so much in Wisconsin! My guess is that providing compensation to that employee who proved she was the victim of discrimination to compensate her for her emotional distress would raise her morale and make her more productive which would truly benefit Wisconsin.
And T-Bomb's co-blogger Adam Gillette points out that neither T-Bomb nor the propaganda he links to from the Wisconsin Civil Justice Council, Inc. (Ironic name, isn't it?) in his post provide any data supporting the falicy that fewer anti-discrimination laws and penalties results in more jobs.
T-Bomb next argues that employees aren't really harmed by this proposed legislation because federal law provides a recovery for compensatory and punitive damages in federal court. That is true, but if the goal is to reduce litigation costs, the evidence shows federal court costs as much, if not more, than the procedures under the WFEA.
First, federal law mandates that, just like in Wisconsin, employees go through an administrative process at the Equal Employment Opportunity Commission (EEOC) before bringing suit. After that administrative procedure, the employee then must bring a lawsuit in federal court to recover any compensation. Thus, the federal system also requires both an administrative and judicial step to resolve these claims. No cost savings there.
Moreover, the costs of litigation in federal court tend to be higher than in state court for all parties. And don't forget (because I know you knew this), the federal courthouses in Wisconsin are located in Milwaukee and Madison. Conversely, state courts are located in every county throughout the state. Typically, both the employee and employer reside in the same or adjoining counties. It would appear that for a large segment of Wisconsin's population, the travel and litigation costs associated with a state court action are arguably much less than those in federal court. Thus, there does not seem to be evidence to prove that litigating in federal court is any cheaper, and in fact may be much more expensive, than under the WFEA.
In sum, it does not appear that repealing the WFEA will result in the job creation or economic benefits argued by its proponents. Nor will it reduce the cost of litigation. Instead, this proposed legislation prevents employees who have been discriminated against from recovering damages in the most economical and geographically convenient venue, state court.
Because this is the Minnesota Employment Law Blog, I should also briefly compare Minnesota's anti-discrimination law to Wisconsin, which is really, for our readers, the true test of who wins this border battle. The Minnesota Human Rights Act provides broader protection against discrimination than both Wisconsin and federal law. It also allows the employee the choice of bringing a lawsuit in court right away or submitting the claim administratively to the Minnesota Department of Human Rights. Employees can recover back pay, front pay, reinstatement, unlimited conpensatory damages, punitive damages up to $25,000 and their attorneys' fees and costs if they are successful. In some cases, the court can award an employee up to three times their actual damages. By this measure, Minnesota is by far a better environment for employees than Wisconsin. Hense the title of this post. T-Bomb can't quarrel with these facts.
And one final note. I went to school at the University of Iowa, so this blog has a strong policy against Iowa bashing. Go Hawks!
"I know...."us" big bad employer's in Wisconsin have it made???"
I presume Scott was likely speaking on behalf of many Wisconsin business owners who aren't my friends on facebook. I also presume he withheld a number of expletives from his note because we were in each others' weddings.
I should also include this disclaimer: In addition to being a lawyer, I am also an employer. So if this post comes off as biased in favor of employers, please accept my apologies.
Anyway, Scott has a new champion in my friend Bart "T-Bomb" Torvik over at the Gillette-Torvik Blog, who is himself an attorney practicing in Illinois (just like Abe Lincoln!). I should note that it is an undisputed fact that Mr. Torvik is a rabid fan/supporter/martyr of and for Wisconsin. I'm not sure if that means he was sampled in this study or not.
T-Bomb has taken my recent Wisconsin v. Minnesota post, and his co-blogger Adam Gillette, to task by arguing, among other things, (1) that the Wisconsin Fair Employment Act (WFEA), which currently provides compensatory and punitive damages for victims of workplace discrimination, costs employers more and stifles job creation because it creates an additional level of administrative hearings, and (2) that employees can simply go to federal court because federal law provides the same remedies as the likely to be repealed WFEA. T-Bomb's blog post can be found here. T-Bomb does an admirable job defending my cousin Scott, but I have a few bones to pick with his analysis.
Currently, an employee may file a complaint of workplace discrimination with Wisconsin's Department of Workforce Development (DWD). The DWD has the power to investigate the claim, hold hearings and award an employee back pay, reinstatement, costs and attorneys' fees upon a finding that the employer engaged in discrimination. Repealing the WFEA in the manner proposed will not take away any of these administrative proceedings or remedies. Instead, under current law, after an employee has already proved discrimination once at a hearing in the DWD, she has to then go to state court and again prove discrimination in order to recover compensatory and punitive damages. It is the right to go to state court to recover these damages that is in danger of being repealed.
I can't dispute that the proposed legislation would reduce the attorneys' fees and costs (in addition to the potential damages) an employer may incur defending against a claim. But if reducing the cost of the proceedings is truly the goal here, then what the Assembly really should do is give the DWD the power to award compensatory and punitive damages after a hearing and finding of discrimination, rather than make the employee and employer go through two seperate proceedings. That would do away with the additional procedural cost of having to litigate the claim twice while requiring only those employers who are guilty of discrimination to pay more in damages. Win-win.
One could also argue that an employer could avoid unwanted attorneys fees and costs by not discriminating against the employee in the first place.
I also want address T-Bomb's argument that anti-discrimination laws cost employers money. Of course they do. But taking that argument to its logical conclusion means we should do away with all anti-discrimination legislation because they cost employers money and may, theoretically, result in less employees being hired. I know there are probably people out there who think that may be a good thing. My guess is that they have never met or do not really know someone who has been the victim of discrimination. Moreover, while it has had its ups and downs, I think the American economy has done quite well since 1964 when Title VII, the first federal anti-discrimination statute, was enacted into law. At the same time, minorities, women and others have received substantial benefits at work and in society at large because of these anti-discrimination statutes.
I also take issue with the whole premise that reducing the damages paid by employers that have been proven guilty of discrimination will create jobs. First, there is no guarantee that the employer who is relieved of paying compensatory and punitive damages is going to run out, create a new job and hire a new employee with that "savings." Second, are these the employers we want creating jobs? Remember, these are folks who have already been found guilty of workplace discrimination. My guess is that working for an employer who discriminates against its employees is much more demoralizing than working for an employer who does not discriminate in the workplace.
This management study argues that high employee morale leads to an increase in productivity and other significant benefits while low employee morale leads to a decrease in productivity, employee turnover, and other significant costs to the employer. So by letting guilty employers keep some of that cash, Wisconsin is encouraging the creation of jobs that will necessarily be less productive than if those funds were used elsewhere. No wonder they are drinking so much in Wisconsin! My guess is that providing compensation to that employee who proved she was the victim of discrimination to compensate her for her emotional distress would raise her morale and make her more productive which would truly benefit Wisconsin.
And T-Bomb's co-blogger Adam Gillette points out that neither T-Bomb nor the propaganda he links to from the Wisconsin Civil Justice Council, Inc. (Ironic name, isn't it?) in his post provide any data supporting the falicy that fewer anti-discrimination laws and penalties results in more jobs.
T-Bomb next argues that employees aren't really harmed by this proposed legislation because federal law provides a recovery for compensatory and punitive damages in federal court. That is true, but if the goal is to reduce litigation costs, the evidence shows federal court costs as much, if not more, than the procedures under the WFEA.
First, federal law mandates that, just like in Wisconsin, employees go through an administrative process at the Equal Employment Opportunity Commission (EEOC) before bringing suit. After that administrative procedure, the employee then must bring a lawsuit in federal court to recover any compensation. Thus, the federal system also requires both an administrative and judicial step to resolve these claims. No cost savings there.
Moreover, the costs of litigation in federal court tend to be higher than in state court for all parties. And don't forget (because I know you knew this), the federal courthouses in Wisconsin are located in Milwaukee and Madison. Conversely, state courts are located in every county throughout the state. Typically, both the employee and employer reside in the same or adjoining counties. It would appear that for a large segment of Wisconsin's population, the travel and litigation costs associated with a state court action are arguably much less than those in federal court. Thus, there does not seem to be evidence to prove that litigating in federal court is any cheaper, and in fact may be much more expensive, than under the WFEA.
In sum, it does not appear that repealing the WFEA will result in the job creation or economic benefits argued by its proponents. Nor will it reduce the cost of litigation. Instead, this proposed legislation prevents employees who have been discriminated against from recovering damages in the most economical and geographically convenient venue, state court.
Because this is the Minnesota Employment Law Blog, I should also briefly compare Minnesota's anti-discrimination law to Wisconsin, which is really, for our readers, the true test of who wins this border battle. The Minnesota Human Rights Act provides broader protection against discrimination than both Wisconsin and federal law. It also allows the employee the choice of bringing a lawsuit in court right away or submitting the claim administratively to the Minnesota Department of Human Rights. Employees can recover back pay, front pay, reinstatement, unlimited conpensatory damages, punitive damages up to $25,000 and their attorneys' fees and costs if they are successful. In some cases, the court can award an employee up to three times their actual damages. By this measure, Minnesota is by far a better environment for employees than Wisconsin. Hense the title of this post. T-Bomb can't quarrel with these facts.
And one final note. I went to school at the University of Iowa, so this blog has a strong policy against Iowa bashing. Go Hawks!
Monday, February 6, 2012
Your Boss Is Big Brother
I can almost guarantee Noah Kravitz did not see this coming: Getting sued by his former employer for $340,000 because his former employer, PhoneDog, claimed his Twitter followers were a "trade secret." PhoneDog is a company that reviews mobile devices like phones and tablets. Kravitz was a writer for PhoneDog from 2006 until his resignation in 2010. At the time Kravitz resigned, he had approximately 17,000 Twitter followers on his handle "PhoneDog_Noah." When he quit, he changed the Twitter handle to "noahkravitz" but kept the 17,000 followers.
PhoneDog claims that Kravitz' Twitter followers were a "customer list" and "trade secret" that belonged to the company and brought suit in July 2011. Specifically, PhoneDog sued for misappropriation of trade secrets, intentional and negligent interference with prospective economic advantage, and conversion (theft). Kravitz sought to have the claims thrown out of court because he claimed the court lacked jurisdiction to hear the case. The court basically denied Kravitz' motion and is allowing the suit to move forward.
This case is interesting for a couple of reasons. First, it highlights the intersection of social media and the workplace. Are these Twitterers following Kravitz or the company? Does that matter? Who owns the Twitter account if Kravitz set it up on his own and was simply doing his employer a favor by tweeting a promotion once in a while? Can Twitter "followers" be a customer list given how fluid they may come and go and given the fact that most of them have likely never done business with PhoneDog? And how is it fair if these questions are answered in Kravitz' favor but he has to pay tens of thousands of dollars in attorneys' fees to establish he was in the right? This is all food for thought when any employee is venturing out into the social media universe on behalf of their employer. And it is a call for employers to make sure they have a well written social media policy that communicates the understanding of what constitutes company property, intellectual or otherwise.
Second, as this article points out, Kravitz claims that the company's lawsuit was brought only after he sued the company for failing to pay him his earned compensation following his resignation. While this may appear like a clear case of retaliation, Kravitz may not have a cause of action if he were to sue in Minnesota. Minnesota's Whistleblower Statute only provides protection for current employees. Because the retaliation in question took place after he quit, he would have no viable claim. Furthermore, Minnesota's wage and hour statutes also do not have an anti-retaliation cause of action on which Kravitz could base a claim.
I will leave you with a few additonal thoughts about social media and the internet:
1. Anything you do on your company's computers (email, internet searches, facebook, twitter, etc.) is not private. It is the company's computer, internet connection and email server that is in use, not yours. You have no expectation of privacy. Assume that your employee is reviewing everything you do on your work computer and act accordingly.
2. Things you put on social media about your employer may come back to haunt you. I would guess at least one of your "friends" is a coworker. Status updates like "My boss suckz!!!" have an uncanny knack for finding their way back to your boss. When you are fired for this, please spare me the phone call. You don't have a claim.
3. Don't have your settings set to "public" while your profile picture is of you doing a keg stand at the frat house. Employers are constantly sifting through social media and other information on the internet to find out about job applicants and current employees. They use this information to find a reason to disqualify you from consideration, not to see if there are any other awards or accomplishments you inadvertantly left off your resume.
4. And finally, if Mr. Kravitz and PhoneDog have taught you anything, keep your personal social media accounts and email addresses seperate from your work accounts.
PhoneDog claims that Kravitz' Twitter followers were a "customer list" and "trade secret" that belonged to the company and brought suit in July 2011. Specifically, PhoneDog sued for misappropriation of trade secrets, intentional and negligent interference with prospective economic advantage, and conversion (theft). Kravitz sought to have the claims thrown out of court because he claimed the court lacked jurisdiction to hear the case. The court basically denied Kravitz' motion and is allowing the suit to move forward.
This case is interesting for a couple of reasons. First, it highlights the intersection of social media and the workplace. Are these Twitterers following Kravitz or the company? Does that matter? Who owns the Twitter account if Kravitz set it up on his own and was simply doing his employer a favor by tweeting a promotion once in a while? Can Twitter "followers" be a customer list given how fluid they may come and go and given the fact that most of them have likely never done business with PhoneDog? And how is it fair if these questions are answered in Kravitz' favor but he has to pay tens of thousands of dollars in attorneys' fees to establish he was in the right? This is all food for thought when any employee is venturing out into the social media universe on behalf of their employer. And it is a call for employers to make sure they have a well written social media policy that communicates the understanding of what constitutes company property, intellectual or otherwise.
Second, as this article points out, Kravitz claims that the company's lawsuit was brought only after he sued the company for failing to pay him his earned compensation following his resignation. While this may appear like a clear case of retaliation, Kravitz may not have a cause of action if he were to sue in Minnesota. Minnesota's Whistleblower Statute only provides protection for current employees. Because the retaliation in question took place after he quit, he would have no viable claim. Furthermore, Minnesota's wage and hour statutes also do not have an anti-retaliation cause of action on which Kravitz could base a claim.
I will leave you with a few additonal thoughts about social media and the internet:
1. Anything you do on your company's computers (email, internet searches, facebook, twitter, etc.) is not private. It is the company's computer, internet connection and email server that is in use, not yours. You have no expectation of privacy. Assume that your employee is reviewing everything you do on your work computer and act accordingly.
2. Things you put on social media about your employer may come back to haunt you. I would guess at least one of your "friends" is a coworker. Status updates like "My boss suckz!!!" have an uncanny knack for finding their way back to your boss. When you are fired for this, please spare me the phone call. You don't have a claim.
3. Don't have your settings set to "public" while your profile picture is of you doing a keg stand at the frat house. Employers are constantly sifting through social media and other information on the internet to find out about job applicants and current employees. They use this information to find a reason to disqualify you from consideration, not to see if there are any other awards or accomplishments you inadvertantly left off your resume.
4. And finally, if Mr. Kravitz and PhoneDog have taught you anything, keep your personal social media accounts and email addresses seperate from your work accounts.
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