Thursday, February 3, 2011

Firing an employee because he complains of wage law violations

A construction worker in Mercer County, Pennsylvania, who was involved with landscaping the Flight 93 National Memorial,  was dismissed after he complained about his employer’s practice of altering workers time cards to avoid state and federal overtime pay laws. He has sued his employer in federal court in Pittsburgh. The action, Marcucci v. Wallace & Pancher, Inc, Civ. Action No. 11-21 (W.D. Pa. Jan.7, 2011), alleges the discharge violated the anti-retaliation provision of the Fair Labor Standards Act.
When Congress adopted the FLSA,  it designed an anti-retaliation provision to encourage employees to report suspected wage and hour violations by their employers and to prevent employees’ fear of economic retaliation when they did so.
The FLSA’s anti-retaliation provision makes it unlawful for an employer:
To discharge or in any other manner discriminate against any employee because such employee has filed a complaint or instituted or caused to be instituted any proceeding under or related to the FLSA, or has testified, or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.29 U.S.C. §215(a)(3).
The courts have held that an internal complaint is a protected activity for purposes of Section 215(a)(3). Vargas v. General Nutrition Centers, Inc., 2011 WL 43020 at *4 (W.D.Pa. Jan. 6,2011); Wildi v. Alle-Kiski Medical Center, 659 F.Supp.2d 640, 664-65 (W.D. 2009); see also Chennisi v. Communs. Constr. Group, LLC, 2005 U.S. Dist. Lexis 2274 at *6 (E.D. Pa. Feb. 17, 2005).
The Nation’s labor laws are predicated on the belief that workers are in the best position to observe employer conduct and report violations. In off-the-clock cases where workers
are not paid for performing their job duties, workers are the only source of information about FLSA violations. If workers believe that employer retaliation is likely, they will not voice their concerns. This could seriously undermine governmental enforcement efforts and
leave employees unprotected
Moreover, as long as the internal complaint is sincere, an employer cannot retaliate. Protesting what an employee believes in good faith to be a discriminatory practice is clearly protected conduct. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996). Thus, an employee need not prove the merits of the underlying wage complaint but only that "he was acting under a good faith, reasonable belief that a violation existed." Id., 85 F.3d at 1085; Griffiths v. CIGNA Corp., 988 F.2d 457, 468 (3d Cir. 1993). An employee, even an educated and informed layperson should not be burdened with the sometimes impossible task of correctly anticipating how the Supreme Court or a Court of Appeals may interpret a particular statute. Berg v. LaCross Cooler Co., 612 F.2d 1041, 1045 (7th Cir. 1980).
The U.S. Supreme Court emphasized that employment and civil rights laws depend for their enforcement upon the cooperation of employees and that effective enforcement of such laws could thus only be expected when employees felt free to approach officials with their grievances. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 65-66 (2006). Thus, interpreting anti-retaliation provision to provide broad protection from retaliation helps assure the cooperation upon which accomplishment of the civil rights’ acts primary objective–preventing harm–depends. Id.
Moreover, the Court of Appeals for the Third Circuit–the federal appeals court with jurisdiction over enforcement of federal employment and discrimination laws in Pennsylvania–repeatedly has recognized that an employee seeking protection from retaliation need not plead or prove the merits of the underlying employment law or discrimination complaint to be protected from retaliation. Rather, she need only show she opposed conduct she in good faith believed to be discriminatory. Clark Co. Sch. Dist. v. Breeden, 532 U.S. 268, 269-70 (2001); Moore v. City of Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006); Abramson v. William Patterson College of N.J., 260 F.3d 265, 286 (3d Cir. 2001); Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996). Likewise, opposition to either discrimination or wage law violations can take the form of "informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have complained of discrimination." Curay-Cramer v. Ursuline Acad. Of Wilmington Del., 450 F.3d 130, 135 (3d Cir. 2006) Neiderlander v. American Video Glass Co., 80 Fed. Appx. 256, 260 (3d Cir. 2003).
Indeed, "only a groundless claim resting on facts no reasonable person possibly could have construed as a discrimination case could not constitute a statutorily protected activity." A mistake as to the merits of a complaint does not cost an employee the protection of the anti-retaliation provisions. Patsakis v. Greek Orthodox Archdiocese of America, et. al., 428 F. Supp.2d 378, 382 (W.D.Pa. 2006)(Hardiman, J),
As the Third Circuit held in Moore v. City of Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006) an employee is not required to collect enough evidence of discrimination to put a discrimination case before a jury before he complains.
These cases often turn on whether the employee made the employer reasonably aware that he or she was complaining of a wage law violation or of discrimination. If you believe your employer is engaging in discriminatory practice, or cheating you out of overtime and you complain to your employer, make sure you are clear about your complaint. But under the law, you cannot be retaliated against for complaining.

Wednesday, February 2, 2011

Welcome to our new blog

An Employment Law Blog dedicated to Western Pennsylvania? Why?
That is what quite a few of my colleagues, clients and friends have repeated during the past several weeks when I considered starting a blog addressing this highly fascinating, and also highly complex,  area of the law. But perhaps the right question is "Why Not?–especially one dedicated to examining employment, labor and civil rights in Western Pennsylvania from the employee’s perspective
For the past 23 years I have practiced employment law in Western Pennsylvania during what could only be, to quote Charles Dickens: "the best of times and the worst of times."
To be sure, it has been the best of times as employment rights expanded in the late 1980s and early 1990s with passage of new laws protecting disabled workers; employees with family responsibilities, and pregnant mothers.
It has been the worst of times when appointment of numerous pro-employer judges both locally and nationally have slowly eroded employee rights. This erosion happens, not overtly, but by day-to-day  incorrect dismissal of employment cases on summary judgment;  increasing the pleading requirements of employment cases;  facilitating forced arbitration of employee’s claims and by a judicial attitude that characterizes employment cases as less than desirable because they often do not involve "big damages." Practicing employment law in Western Pennsylvania during the past two decades could best be characterized as holding back the tide. It has been fighting a rear guard action to maintain the hard fought gains in an era of retrenchment. During that time Congress expanded employee protection in a number of areas. The passage of the Americans with Disabilities Act in 1990, the amendment of Title VII of the Civil Rights Act with the Civil Rights Act of 1991, and passage of the Family & Medical Leave Act in 1993 expanded the rights of employees and the remedies available to them when employers trampled on those rights.
But at the same time, Pennsylvania state and federal courts narrowly interpreted employee rights, and created presumptions and doctrines making it more difficult to prove discrimination. Thus, the practice of employment law in Pittsburgh often has necessarily been measured by "defending the castle," rather than gaining new ground.
What this has created among the employment bar is what I call a timidity of expectations--and a culture that feeds on this timidity. Over and over, in reported decisions after reported decision, evidence shows employment lawyers fail to win because they fear to lose.
As a local federal judge once told me: "you would be surprised how unaggressive many employment lawyers have become. They do not put the time and effort required into developing the facts necessary to advance their client’s case; they do not challenge employer’s objections to legitimate discovery requests, and they do not adequately respond to dispositive motions. Then they whine when we grant summary judgment because that evidence is not there."
Couple this with an employment defense bar that has become increasingly aggressive in defending employment claims  and employees often are put into a situation akin to sending out a three-toed sloth to seize turf from a wolverine, as the late Hunter Thompson put it.
So, this Western Pennsylvania Employment Law Blog hopefully will examine--from the employee’s perspective--the scope and direction of employment law in this part of the state and,  in the U.S. Court of Appeals for the Third Circuit; the Pennsylvania Supreme Court and intermediate appellate courts. From time to time we also will examine what is happening in employment law in Philadelphia, and in the midsection of Pennsylvania and in Ohio.
We will discuss the Western Pennsylvania employment cases that are successful; the ones that fail; and the ones just recently filed.
We will look at what works, and why.  We will examine what doesn’t work and why not. Hopefully we will offer some perspective, suggestions and, yes, critique of tactics and strategy. We hope this Blog also will provide non-lawyers with solid information to help them understand this highly interesting, but also highly complex area known as employment law.

Friday, January 21, 2011

Welcome to our new blog

Welcome to the new Pittsburgh Employment Law Blog.  Please visit our website at for more information.