Needle and the Damage Done: Pharmacist’s Phobia Not Enough for ADA Claim

ImmunizationsCan fear of an aspect of your job constitute a disability under the ADA?  Depends on how essential the function is. In Stevens v. Rite Aid Corp, the Second Circuit Court of Appeals looked at the case of a Rite Aid pharmacist, Christopher Stevens, who suffered from trypanophobia—-fear of needles.

Factual Background.

In 2011, Rite Aid decided that all pharmacists had to give immunization injections to customers and revised the essential functions on the job description to include a valid immunization certificate. Stevens (who had worked as a Rite Aid pharmacist for 34 years) promptly went to his treating physician and got a note stating that if required to use a needle to give an immunization, he would suffer from lightheadedness, paleness and may faint. Rite Aid engaged in an interactive process—seeking additional information about what, if any, accommodation would enable Stevens to administer injections. The doctor essentially said there were none and went on to note that the possibility of Stevens fainting might be unsafe for the customers and Stevens.

In response, Rite Aid told Stevens that his phobia was not covered by the ADA and that giving immunizations was now an essential function of his job. Since he could not perform that function, Stevens was terminated. He filed suit against Rite Aid for wrongful termination, retaliation, and failure to accommodate him under the ADA and a jury awarded him over $2 million dollars. Rite Aid asked the district court to set aside the verdict. The Court reduced part of the verdict and dismissed the failure to accommodate claim.  Both Stevens and Rite Aid appealed that decision. The Second Circuit sided with Rite Aid.

The Court’s Legal Analysis.

The Second Circuit first focused on Rite Aid’s essential function argument. Under the ADA, if an employer claims that a particular job function is essential, the Court must review the evidence to see if that is true. The Second Circuit found that the evidence was uncontradicted that Rite Aid made a business decision to start requiring pharmacists to perform immunizations and that it revised its job description for pharmacists to include that as an essential duty. Stevens did not present adequate evidence to show that the immunization duty was not essential.

Next, the Second Circuit looked to see if there was a reasonable accommodation that would enable Stevens to perform the essential function of giving injections. The Court noted the important distinction that it is not whether Stevens could adequately perform other aspects of his job—he had to show that there was a way that he could perform the injection essential function. At the lower court, Stevens had argued that Rite Aid could have provided him “desensitization therapy, “ but there was no authority that providing medical treatment is a reasonable accommodation and Stevens could not show that he would have even gone through that therapy. Stevens also argued that he could have been transferred to another position that did not require him to give injections. However, the proof showed that Rite Aid offered him such a position and he chose not to take it. Finally, Stevens argued that Rite Aid could have either hired a nurse to give his required injections or paired him with another pharmacist who could do so. The district court found (and the Second Circuit agreed) that Rite Aid was not required to eliminate the essential function from Stevens’ position, nor were they required to force other employees to do it instead of Stevens. As such, Stevens failed to show that any reasonable accommodation existed that would allow him to perform the essential function of administering injections. Therefore, his ADA claim was properly dismissed.

Practical Takeaways.

This case, although with a unique set of facts, emphasizes the importance of clearly stating the essential functions of a position. Rite Aid was successful because it did a lot of things right:

  • It showed that it made a business decision to include immunizations as a service to its customers.
  • It amended the pharmacist job description to reflect the new essential job function.
  • It engaged in the interactive process—asking what, if any, reasonable accommodations would enable Stevens to get the job done.
  • Importantly, Rite Aid offered Stevens a transfer—which he turned down.

This case shows that there are some disabilities that employers simply cannot accommodate.  This decision also shows just how important it is for employers to engage in the interactive process with their employees to explore the possibilities and be able to document the decision making process.

Son of Noel Canning? Worst Blog Title Ever? Supreme Court Takes Another Shot at NLRB Vacancy History

business manHow important are the titles “temporary” or “permanent” when it comes to an appointee to run a federal agency? Apparently, very important. On March 21, the U.S. Supreme Court waded back into the messy timeline of President Obama’s attempts to appoint members of the National Labor Relations Board (NLRB).

Why Are We Talking About President Obama’s Appointments?

As you may know, the President appoints the five members and the general counsel of the NLRB, and the Senate has to confirm them. In June 2010, President Obama appointed Lafe Solomon as acting general counsel of the NLRB. No one seemed to have a problem with that appointment. Issues arose, however, when President Obama decided to nominate Solomon as the permanent general counsel, which required Senate approval. While his nomination was pending, Solomon continued to serve as the acting general counsel. The Senate chose not to consider Solomon, so President Obama withdrew the appointment and went with someone else (who was ultimately confirmed).

The NLRB v. SW General, Inc. Case

SW General was an employer who had an unfair labor practices (ULP) complaint issued against it by the NLRB while Solomon was acting general counsel but nominated for the permanent position. SW General argued that under the Federal Vacancies Reform Act (FVRA), Solomon qualified to serve as acting general counsel, but that he lost that qualification once the President officially appointed him as the permanent general counsel, but without Senate confirmation. Since he was not authorized to serve as general counsel, any complaints issued during that time period would be invalid. Both a federal district court and the D.C. Circuit Court of Appeals agreed.

The Supreme Court, in a very grammar and punctuation focused opinion, affirmed the D.C. Circuit. Specifically, they found that the FVRA prohibits a person who has been nominated temporarily to fill a vacant office (such as NLRB general counsel) from later serving as an acting officer pending Senate approval. The Court noted that President Obama could have appointed another person to serve as the NLRB acting general counsel while Solomon awaited the confirmation that never came, but he chose not to do so. For those reasons, they dismissed the ULP complaint against SW General.

Who Cares?

Other than statutory nerds and strict grammarians, who really should worry about this decision?  Well, it seems eerily similar to the Noel Canning case which also dealt with President Obama’s attempts to appoint members to the NLRB. In Noel Canning, the Supreme Court ruled that several board members were improperly appointed and resulted in the NLRB having to reconsider hundreds of cases that had been decided by the prior board. In this case, the D.C. Circuit Court opinion (which was affirmed by the Supreme Court) specifically held that this would not be that type of situation and, instead, that only respondents who expressly and timely challenged Solomon’s appointment under the FVRA could have their NLRB decisions reviewed. However, because Solomon was general counsel, there may be all sorts of decisions that were made that may now be challenged—appointments to lower positions with the board administration, discovery issues, etc. If an employer had an adverse ruling from the NLRB during the time when Solomon served, this may now provide an avenue to challenge that decision.

ICE Could Come Knocking: Employers Should Be Prepared as Business Raids Increase

A criminal is handcuffed by a policeman

Employers– the chances that you could receive a visit from immigration officers have increased. Recently, U.S. Immigration and Customs Enforcement (ICE) agents conducted “raids” at eight Asian restaurants in Mississippi—in Clinton, Flowood, Madison, Meridian, and Pearl. Fifty-five restaurant employees, all undocumented, were detained during the raids. According to one immigration advocate, enforcement raids have “blown up” over the past two weeks in the Deep South. However, employers in other areas of the country should not be complacent as the ICE website also reports the arrests of 248 in Pennsylvania, West Virginia and Delaware in the last two weeks.

Department of Homeland Security Secretary John Kelly said the ICE raids were part of “a series of targeted enforcement operations” for undocumented immigrants. For years, ICE has prioritized detaining undocumented immigrants who have been convicted of a crime. These raids suggest a broader approach under the Trump administration with ICE making so-called “collateral arrests”– checking employee papers during raids and detaining anyone who is undocumented. However, Thomas Byrd, spokesman for ICE’s New Orleans field office, which oversees immigration enforcement in multiple states in the Southeast, said “ICE conducts targeted immigration enforcement in compliance with federal law and agency policy. ICE does not conduct sweeps or raids that target aliens indiscriminately.”

Since 1986 employers have been required to check the work authorization of every worker using the familiar Form I-9. In 2012, ICE developed a “comprehensive worksite enforcement strategy” describing its focus on critical infrastructure worksites and employers who exploit undocumented workers. The U.S. Citizenship and Immigration Service recently published a revised Form I-9, which became mandatory the day after President Trump’s inauguration.

With the increased emphasis on immigration enforcement, and the risk of heavy civil penalties and even potential prison time for knowingly employing undocumented workers, businesses should, at the very least, take the following steps:

  • Ensure that your I-9s are in order and conduct periodic internal audits to assess the status of all I-9s.
  • Ensure your worksites and staffs have proper training for I-9 implementation.
  • Enroll in and utilize E-Verify, an internet system that allows businesses to assess the status of their employees. Although E-Verify is generally voluntary, it is mandatory for federal contractors and may be under some state laws, so employers should check the states where they have worksites for E-Verify requirements.
  • If ICE does pay a visit to your business, remember that ICE must have a warrant to enter a business or arrest an employee. You should not panic or refuse to speak to them, but you and your employees do have the right to remain silent and speak to a lawyer.

Whereas ICE has traditionally provided notice of a prospective audit, the recent enforcement efforts were unannounced and reflect an expansive shift.  ICE’s targeted enforcement actions may be intended to promote the concept of “self-deportation,” where illegal immigrants leave the country voluntarily rather than through actual involuntary, forced deportation. As described by Emily Bazelon in a recent New York Times Magazine article, “[d]etention and deportation on a mass scale would be a gargantuan task – divisive, enormously costly and legally fraught. The only feasible way to get millions of undocumented immigrants out of the county, as Trump has promised, is to create a climate that induces immigrants to leave on their own.”

With the administration’s undeniable concentration on illegal immigration, reflected by ICE’s recent enforcement efforts in Mississippi, employers should take necessary measures to be prepared in this new environment.

 

Where Was the Whistle Blown? Split in Circuits over Retaliation Protection for Reporting Securities Violations

whistleblowerIf you report your company for a federal securities violation, just how safe is your job? Curiously, that may depend on where you live. Recently, the Ninth Circuit weighed in, adding to a split among courts across the country regarding retaliation protection for employees who turn in their employers for violations of federal securities laws.

What laws?

The Sarbanes-Oxley Act (SOX) and the Dodd-Frank Act (Dodd-Frank) are aimed at encouraging reporting of unlawful accounting and auditing procedures within public companies. Both SOX and Dodd-Frank include specific protections for employees who engage in that type of reporting. SOX, which was passed in 2002 after the Enron scandal, protects whistleblowers who lawfully provide information about illegal financial practices to “federal agencies, Congress, or a person with supervisory authority over the employee.” Dodd-Frank was passed in 2008 after the subprime mortgage crisis and protects employees who provide information relating to a violation of the securities laws to the Securities and Exchange Commission (SEC).

So what’s the rub on whistleblower protection?

Courts have differing opinions on whether an employee who reports a violation of Dodd-Frank to supervisors within the company, but not to the SEC, is entitled to retaliation protection. In 2013, the Fifth Circuit in Asadi v. G.E. Energy (USA) adopted a narrow definition of whistleblower under Dodd- Frank. In Asadi, an employee was terminated after he made an internal company report of a possible securities law violation. He sued claiming that his firing was a violation of the whistleblower protection from retaliation under Dodd-Frank. The lower court held that since Mr. Asadi only reported the violations within his company, and did not report them to the SEC, he was not entitled to any protection as a whistleblower. The Fifth Circuit agreed and affirmed the dismissal of Mr. Asadi’s case.

Both the Ninth and Second Circuits, however, have taken a much broader view of the whistleblower protection. Those courts noted that Dodd-Frank specifically references SOX protection—which expressly protects reporting securities violations to a supervisor. For that reason, those courts held that the whistleblower protection covers both an employee who only reports problems internally and an employee who reports potential violations to the SEC. In the Ninth Circuit case, Somers v. Digital Realty Trust, a vice president made several reports to senior management regarding possible securities law violations and was terminated before he could report the issues to the SEC. He sued under the Dodd- Frank whistleblower protection provisions and the lower court ruled he was a protected whistleblower even for an internal complaint. The Ninth Circuit agreed that he was entitled to that protection and affirmed the lower court’s refusal to dismiss his case.

Now what?

Where does this split leave employers? Overall, whistleblowers, no matter the context, are usually sympathetic parties to both judges and juries. Common sense would hopefully guide most companies to encourage their employees to report any possible illegal acts that are occurring among their ranks. Despite the Fifth Circuit’s narrow interpretation, the safest course is to avoid even the appearance of retaliation against an employee who is reporting a possible securities law violation. In the event that happens, the employer may have bigger issues to address than the reporting party’s status as an employee.

You Don’t Look Like You Are From Around Here: EEOC Guidance on National Origin Discrimination

diverse business peopleIf you weren’t sure what it meant to discriminate against someone because of their national origin, the EEOC wants to help. The newly revised Section 13 of the EEOC Field Manual provides guidance on how the EEOC defines national origin (which is more than just what nation in which you originated) and gives examples of what might be national origin harassment.

What is National Origin Discrimination?

The EEOC considers national origin discrimination to include discrimination because of an individual’s or the individual’s ancestors’ place of origin—could be a country (e.g., China), a former country (e.g., Yugoslavia), or a geographic region closely associated with a particular national group (e.g., Kurdistan).  The Guidance defines discrimination based on “national origin group” or ethnicity as well. That protected class is “a group of people sharing a common language, culture, ancestry, race, and/or other social characteristics”—like Hispanics or Arabs.

Some Examples.

The Guidance provides a number of examples of what the EEOC thinks might be national origin discrimination. Below are some of the highlights;

  • Ethnicity—for or against: No surprise– just like with other protected classes, you cannot discriminate against or in favor of individuals because of their national origin. So, you cannot exclude a candidate because he is Hispanic or Asian. However, the Guidance reminds everyone that national origin discrimination also includes discrimination against a person because she does not belong to a particular ethnic group, such as less favorable treatment of employees who are not Employers should consider this when trying to hire people with specific language skills. For example, if you need a Spanish speaker, require fluency in Spanish rather than preferring Hispanic candidates.
  • Physical, linguistic, or cultural traits: Discrimination based on “physical, linguistic, and/or cultural characteristics closely associated with a national origin group”—like accents or styles of dress is on the EEOC’s radar. For example, the EEOC suggests that treating someone differently because of her African-sounding accent or traditional African style of dress could constitute discrimination based on African origin. So, if your dress code doesn’t permit expressions of ethnic traditions the EEOC may challenge it.
  • Perceived national origin: Taking a page from the ADA, the Guidance says that Title VII prohibits employment discrimination based on the perception of someone’s national origin or ethnicity. So, the EEOC will be looking for decisions based on a belief—correct or not–that someone is, for example, from the Middle East, regardless of whether the employee is actually from a Middle Eastern country.
  • Association with someone who is a different national origin: The EEOC makes clear that employers cannot make decisions about an individual because of his association with someone of a particular national origin. For example, you cannot make a decision about an employee because he is married to or has a child with someone of a different national origin or ethnicity.
  • Citizenship status: The EEOC is looking for employment discrimination based on citizenship status if it has the purpose or effect of discriminating based on national origin. For example, employers cannot require all employees to be American citizens—although you must require that everyone provide proof of eligibility to work in the United States.
  • Native American as national origin: The Commission states clearly that employment discrimination because an individual is Native American or a member of a particular tribe also is based on national origin.

Takeaways.

As our workforce gets more and more culturally diverse, issues touching on national origin will come up more and more. Employers need to remember that the EEOC defines this protected classification broadly to include perceived national origin or cultural choices. In making employment decisions, remember that individuals don’t necessarily have to be foreign to be protected against national origin discrimination.

Power of the Subpoena: Will Nominee Gorsuch Limit Scope of EEOC Reach?

Back from maternity leaveJust how broad is the EEOC’s subpoena power and are we likely to get some guidance soon? We’ve said before that the McLane v. EEOC case (which is about the EEOC’s subpoena power and is currently before the Supreme Court) is uncertain given President Trump’s election. Since then, we have had two developments: first, President Trump nominated Judge Neil Gorsuch, a conservative jurist from the 10th Circuit to fill the vacancy on the Court, and second, the Court heard oral arguments last week in McLane.

What Is McLane About?

In essence, McLane is about the EEOC’s subpoena power and anyone who deals with the EEOC should be interested in the facts. Damiana Ochoa worked for McLane Company, a grocery supply chain, in Arizona. When she returned from maternity leave, McLane made her take a physical strength exam. Ochoa did not pass the exam, was terminated and promptly filed an EEOC charge alleging sex/pregnancy discrimination. In its investigation, the EEOC ultimately asked McLane for pedigree information (including name, social security number, last known address and telephone) about who took the physical strength test, who passed and its reasons for terminating any employee who took it—and expanded its investigation to include facilities nationwide (more than 20,000 employees) AND to seek information about the age of the employees—even though Ochoa wasn’t in the age-protected category.

After refusing to go nationwide, McLane ultimately provided the EEOC with a lot of information but refused to provide pedigree information or information on termination decisions. The EEOC issued an administrative subpoena and sought enforcement in the Arizona federal district court. The district court split the baby and ordered McLane to provide a number of things, including any adverse employment action imposed within 90 days of taking the test, but not pedigree information or the reasons for any termination. On appeal, the Ninth Circuit reversed and vacated part of the district court’s ruling after reviewing it de novo. The EEOC appealed and it is now before the Supreme Court.

How Does the Gorsuch Nomination Affect This?

While the Senate has not yet confirmed Judge Gorsuch’s nomination, history tells us he will likely join the highest court. The rules of the Senate still allow for a filibuster of a judicial nomination, which, if exercised, would prevent a vote on the nominee absent 60 senators voting in favor of proceeding. However, Republican control of the chamber probably means a filibuster would merely delay the inevitable and Judge Gorsuch will join the bench by the late spring. Although he is likely to give employers a fifth vote in hotly contested cases, his addition to the court may be inconsequential to McLane because everyone seems to agree that the Ninth Circuit should be overturned.

What Did Oral Argument Tell Us?

Before the court in McLane is a circuit split on the proper standard of appellate review of a decision to quash or enforce an EEOC subpoena. The Ninth Circuit applied a de novo standard of review, while eight other circuits apply an “abuse of discretion” standard. This case is unusual in that the parties to the litigation agree that the Ninth Circuit should join the other circuits and adopt the deferential “abuse of discretion” standard. Given the parties’ positions, the Supreme Court appointed a lawyer to argue in favor of the Ninth Circuit’s position on de novo review. At oral argument, however, the justices hinted of a consensus in favor of the deferential standard. Most of the justices who spoke during the argument seemed to agree that an appeals court should not disturb a district court’s ruling on an EEOC subpoena unless the lower court had clearly erred.

Notably, oral argument seemed to focus more on the appropriate scope of EEOC subpoenas than on the proper standard of appellate review. Justice Ginsburg questioned the district court’s ruling, suggesting that even if the Ninth Circuit had applied the more stringent “abuse of discretion” standard, it still would have found in the EEOC’s favor that McLane’s pedigree information was relevant to the underlying investigation. Similarly, Justice Sotomayor noted that while McLane provided a list of more than 14,000 employees along with genders, test results, and adverse action within 90 days of the test, that information did not specify whether the employee had been terminated or the underlying reason for the adverse action—which she suggested supports the EEOC’s position that the pedigree information was relevant so the EEOC could communicate with the employees to determine whether failing test-takers were treated differently based on gender.

Justice Breyer seemed a bit more skeptical of the relevance catch-all. He acknowledged that relevance is a broad concept that the EEOC could use to justify seeking almost any information. In this case, one former employee alleged discrimination, but the EEOC ultimately sought information on thousands of employees, which demonstrates that relevance is a slippery slope. Justice Breyer also contemplated whether the EEOC’s subpoena could be quashed on the basis of undue burden.

What Does This Mean For Employers?

Although the only issues before the Supreme Court are the appellate review standard and the relevance of employee pedigree and termination information, the Court’s decision will hopefully provide employers guidance on how to respond to EEOC subpoenas. Can employers object to EEOC subpoenas based on the relevance and proportionality of the requested information? If the subpoena is broad and only potentially relevant to the charging party’s allegations (a classic fishing expedition), can an employer successfully argue that it is unduly burdensome? Employers should stay tuned.

Hug It Out at Work? Maybe Not in the Ninth Circuit

Coworkers hugging at the officeWhen does workplace hugging go too far? The Ninth Circuit Court of Appeals recently weighed in with an opinion. Victoria Zetwick, a county correctional officer, based her Title VII hostile work environment suit almost entirely upon her supervisor’s practice of hugging her and the rest of the female staff.

Just How Much Hugging?

By her count, Sheriff Edward Prieto hugged Zetwick two dozen times from 1999 to 2002 and then another 100 times between 2003 and 2011. She admitted that none of the hugs lasted more than a few seconds and all of them happened in front of other people—mostly at workplace parties, award banquets and GED graduations for prisoners. She included one kiss–the Sheriff kissed her to congratulate her on her recent marriage to a sheriff’s deputy, she turned her head and the kiss landed partially on her lips. The Sheriff hugged other female employees, but gave handshakes to the male employees. Zetwick admitted that she also hugged male co-workers, but that the Sheriff’s hugs were severe or pervasive enough to cause her stress at work and create a hostile work environment.

Summary Judgment at the District Court

The County moved for summary judgment arguing that the Sheriff’s actions were just “genuine, but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.” It cited cases to support the notion that courts do not consider hugs and kisses on the cheek to be outside the realm of common workplace behavior. The County argued that the Sheriff’s hugging was within the scope of “ordinary workplace socializing.” In a unique strategy, the County also calculated that based on her testimony, the Plaintiff would have experienced the hugs an average of seven or eight times a year for a couple of seconds on each occurrence. The District Court adopted the County’s arguments and found that the Sheriff’s conduct did not rise to the level of creating a hostile work environment. Zetwick appealed.

Ninth Circuit Reversal

The Ninth Circuit disagreed with the lower court. First, they noted that the case law cited by the County did not identify the number of times the hugging occurred. In addition, the Court pointed out that in a hostile work environment case, when the conduct is unwelcome and pervasive, it becomes unlawful. The Ninth Circuit also disagreed with the lower court’s finding that the hugging was ordinary workplace socializing. The Court stated that a reasonable juror could find, from the frequency of the hugs, that the Sheriff’s conduct was out of proportion with normal workplace behavior. The Court further noted that it was significant that the unwelcome hugs were coming from her supervisor. For all these reasons, the Ninth Circuit found that there were issues of fact that a jury should consider and reinstated Zetwick’s lawsuit.

No Hugging at Work?

So, does this mean that no one can ever hug a co-worker? Probably not but it does show that hostile work environment claims do have a very subjective element. Courts will look to whether the conduct is unwelcome and if it is, whether it is pervasive or severe. Some people are huggers—-they do not find the conduct to be a problem. Others may feel differently. It also matters how often the hugging is happening. Could an employee file a claim for one hug at a company birthday celebration? Maybe not. Could an employee file a claim for an unsolicited hug from the copy guy every day when he sees her? Probably a lot closer to a yes. If the hugger is your boss, the answer is probably yes–certainly in the Ninth Circuit. The best thing to do is to have honest and direct conversations with your employees about sexual harassment and the reporting procedure. But no group hugs afterwards.

Consistently Inconsistent? Fifth Circuit Appears to Have Conflicting Approaches to Damages Under the ADEA and FLSA

age discriminationCan a plaintiff get pain and suffering or punitive damages in a retaliation claim under the Age Discrimination in Employment Act (ADEA)? In Vaughan v. Anderson Regional Medical Center, the Fifth Circuit, denying both an interlocutory appeal and a petition for rehearing, says “no”.

Legal Framework.

As we all know, the ADEA explicitly limits a successful plaintiff’s recovery to lost wages and liquidated damages, following the damages scheme of the Fair Labor Standards Act rather than Title VII. However, both the ADEA and the FLSA provide for retaliation claims and that is where the similarity in damages ends (at least in the Fifth Circuit). In 1977, Congress amended the FLSA to provide for compensatory and punitive damages in a retaliation case. Congress did not amend the ADEA.

Facts and Arguments in Vaughan.

Susan L. Vaughan, who worked for Anderson Regional Medical Center as a nurse supervisor, sued claiming she was terminated because of her age and in retaliation for complaining about her supervisor’s discriminatory comments relating to her age. While Vaughan conceded that she could not receive pain and suffering or punitive damages for her age discrimination claim, she argued those damages were available for her retaliation claim. ARMC filed a motion to dismiss the claim for those damages. The trial court dismissed Vaughan’s claims, relying on Dean v. American Sec. Ins. Co., 1977 Fifth Circuit precedent that barred those damages under the ADEA.

On interlocutory appeal, Vaughan pointed to Seventh and Eleventh Circuit cases, and EEOC advisory guidance, that supported her claim for these damages for her ADEA retaliation claim. Given that Dean explicitly prohibited the damages for age discrimination claims but did not mention retaliation claims, she argued that it silently excluded ADEA retaliation claims from its ruling. Vaughan also argued that because the Fifth Circuit interprets the FLSA to provide remedies consistent with the ADEA, the 1977 amendment to FLSA retaliation remedies enlarged the ADEA retaliation remedies as well. The Fifth Circuit disagreed on both counts, affirming the trial court, holding that Dean is the controlling law for all ADEA damages claims and was unaffected by the 1977 FLSA amendment.

But What About FLSA Retaliation Claims in the Fifth Circuit?

Three days prior to its Vaughan ruling, however, the Fifth Circuit in Pineda v. JTCH Apts., LLC, ruled that the 1977 amendment did allow emotional distress damages in FLSA claims.  So– does the Fifth Circuit still interpret the FLSA to provide remedies consistent with the ADEA? That is the question that Vaughan and the AARP, as Amici Curiae, asked in a petition for rehearing and en banc consideration. Given that the two cases use the same statute for damages the opinions appear a little contradictory. Not so, says the Fifth Circuit—which withdrew its prior opinion in Vaughan and issued a new opinion with the same holding and almost exact same reasoning. Bottom line, the Fifth Circuit has made clear that Dean controls all claims under the ADEA, including retaliation claims.

What Does This Mean?

The Fifth Circuit appears to have deviated from its position that damages for retaliation claims under the FLSA and the ADEA will be interpreted consistently and seems to be holding steady that ADEA retaliation only gets liquidated damages. As Vaughan pointed out, however, some other circuits and the EEOC believe that emotional distress and punitive damages are available for ADEA retaliation claims. For employers, this decision emphasizes the importance of avoiding potential retaliation claims under the ADEA or any other law.

Even Faster Re-Appointment: President Trump Tags Dean Alexander Acosta as Next DOL Nominee

R. Alexander AcostaOne day after losing his initial nominee, Andy Puzder, President Trump named Alexander Acosta, the Dean of Florida International School of Law, his next (and hopefully final) nominee for Secretary of Labor. Acosta is a former member of the NLRB and past U.S. Attorney for the Southern District of Florida. While he was the U.S. Attorney, he prosecuted lobbyist Jack Abramoff and suspected terrorist José Padilla. If confirmed, he would be the first Hispanic member of Trump’s cabinet.

Stay tuned…

Fast Exit for Fast Food Labor Secretary Nominee Puzder

Andrew PuzderSecretary of Labor nominee Andy Puzder withdrew his nomination on February 15. Neither his statement nor his Twitter posts gave any reason for the withdrawal, but it was known that his nomination was in trouble with several Republican senators. The criticism against him ranged from the expected — his record running two fast food chains and his opposition to minimum wage hikes — to the unexpected — an undocumented housekeeper and old allegations of domestic abuse by an ex-wife.

So who will step into his place? In the past, President Trump has expressed interest in private practice labor attorney Peter Kirsanow. Kirsanow is a former member of the NLRB and a current member of the U.S. Commission on Civil Rights. Wisconsin Governor Scott Walker’s name was also bandied about as a possible choice before Puzder. Walker became notorious in labor circles when he proposed and then enacted a law stripping most Wisconsin public workers of their collective bargaining rights. The waiting game will now begin for the next nominee.

So what does this mean for employers? Since the election, the DOL has taken some things off the front (or maybe any) burner. Employers need to comply with the laws on the books and the regulations that are currently in place and stay tuned to see what happens.

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