Can employees frustrate the “pick off” play in FLSA collective actions?

The federal Fair Labor Standards Act (“FLSA”) permits employees to file suit on their own behalf and other “similarly situated” employees to recover unpaid or underpaid wages.  A suit on behalf of other employees is referred to as a “collective action” under the FLSA, which is similar in concept to class actions but with its own special procedural rules.  Employees are sent notice of the collective action and must return written consent to join.  Potential damages are obviously greater in collective actions.  The so called “pick off” strategy attempts to stop collective actions before they start – the employer makes an early offer of judgment to the employee who filed the lawsuit in an effort to “moot” the case in advance of other employees having an opportunity to join it.  A recent 5-4 opinion by the U.S. Supreme Court in Genesis HealthCare Corp. v. Symczyk upheld the pick off strategy, but that decision had an interesting twist that calls into question whether the strategy will work in other cases.  The employer’s offer of judgment in Symczyk had actually expired and was never accepted by the employee.  For some unknown reason, however, the employee conceded in earlier litigation that the unaccepted offer of judgment had mooted the case.  The Supreme Court thus assumed the case was moot and did not answer the more important question: Can an employee frustrate the “pick off” play by not accepting an employer’s offer of judgment?  The four justices who dissented opined that cases are not moot when an employee refuses an offer of judgment and that the lawsuit or collective action will continue if the employee declines.  Whether one or more other justices will agree to make a majority on that issue will have to wait another day.

Derrick T. Wright

Derrick is an associate at Sturgill, Turner, Barker & Moloney, PLLC  and concentrates his practice on public entity and government defense, constitutional law and civil rights, and employment and labor law. He regularly defends local governments and officials against claims involving Section 1983, Title VII, the ADA, the ADEA, and the FLSA as well as the Kentucky Civil Rights Act and the Kentucky Wage and Hour Act.

Emergency Preparedness Drills in the 21st Century

Everyone remembers participating in fire drills or, depending on your age, nuclear fallout drills while in elementary and high school. With school gun violence in the national spotlight, school systems are likely looking for ways to increase or improve preparedness for such events. The question, of course, is how to prepare.

One school in Oregon has fallen under criticism for the method it chose to use as a drill. The school, located in Halfway, decided to test its teachers’ preparedness by staging an active shooting scenario. The drill occurred during a in-service day, meaning no students were present, and involved two masked men wielding actual handguns loaded with blanks, barging into the meeting room and opening fire. Although it quickly became apparent that blanks were being used, teachers were not informed of the drill beforehand and realized that their previously untested plans for dealing with such an event were unlikely to be effective. As a result, the teachers and staff are rethinking their plans for ensuring the safety of their students. While it appears the drill itself had its intended effect, the question remains whether this particular method is the best way to conduct such drills.

 

 Martha L. Alexander

Martha is an associate at Sturgill, Turner, Barker & Moloney, PLLC and concentrates her practice in the areas of employment law, education law and governmental law. She regularly works with employers, public entities and K-12 and higher education institutions defending them against claims of EEOC, sex, race and age discrimination, wrongful termination and Civil Rights violations. 

H-1B Visas: It’s never too late (unless it is)!

For most employers, it is too late to file H-1B Visa applications that are subject to the Fiscal Year 2014 regular cap. To briefly explain:

An H-1B visa is a visa available for individuals who will perform a specialty occupation, usually evidenced by holding an advanced college degree. Unfortunately, there are only a limited number of H-1B visas to go around. Instead, each year there is a nationwide regular cap of 65,000 non-exempt visas, plus 20,000 H-1B “master’s exempt” visas. This year the United States Citizenship and Immigration Services (USCIS) began processing applications for H-1B visas on April 1st. On April 6th, the USCIS had already received 124,000 applications and stopped accepting applications.

Now, for most employers this means “you’re out of luck.” You’ll have to wait until next year to secure a visa for your prospective employee. However, some classes of applicants aren’t subject to the cap. Those applicants who are petitioned for or will be employed at a college or university, or nonprofit entities or a nonprofit research organizations affiliated with a college or university, or a government research organization, are not subject to the cap. Also, applicants who hold a U.S. master’s degree or higher fall into the additional 20,000 “master’s exempt” visa category and may be eligible for an H-1B visa even if the 65,000 regular cap has been met.

If you’re one of these lucky few employers, you can still apply for an H-1B visa. If you’re not one of the lucky ones, it’s never too early to start thinking about next year. This year is the first year since 2008 that the cap was met so quickly. With the US unemployment rate dropping, it is likely that the cap will continue to be satisfied early in the process. Although the USCIS uses a lottery system to award the visas, early preparation is the best way to ensure your application is even accepted for the lottery. So, even though it only April, start thinking about your plans for 2014!

 

 Martha L. Alexander

Martha is an associate at Sturgill, Turner, Barker & Moloney, PLLC and concentrates her practice in the areas of employment law, education law and governmental law. She regularly works with employers, public entities and K-12 and higher education institutions defending them against claims of EEOC, sex, race and age discrimination, wrongful termination and Civil Rights violations.

Proving Retaliation in the Sixth Circuit: Fuhr v. Hazel Park School District

Fuhr v. Hazel Park School District, No. 2:08-cv-11652 (6th Cir. 2013), is the most recent decision from the Sixth Circuit Court of Appeals to address gender-based employment discrimination and retaliation. While this “to-be-published” decision did not break new ground on the topic, it did reaffirm several points of law.

The factual background of this case is relatively simple. In 1999, Geraldine Fuhr, who was the girls basketball coach at Hazel Park High School in Hazel Park, Michigan, filed a successful lawsuit alleging gender discrimination resulting from a failure to hire her as the boys basketball coach. The outcome of that suit was that Ms. Fuhr was instated as the boys basketball coach and served as both the boys and the girls basketball coach from 2001 until 2006. In 2006, Ms. Fuhr was removed from her position as the girls basketball coach and began to be subjected to a number of allegedly retaliatory acts which resulted in her filing a charge of discrimination with the Michigan Department of Civil Rights in early 2007. The second lawsuit, which is the subject of the Sixth Circuit’s opinion, was filed in 2008 alleging both gender discrimination and retaliation. The District Court granted summary judgment in 2011 on all claims. Ms. Fuhr appealed the District Court’s order as to the claim of retaliation only.  In upholding the District Court’s grant of summary judgment, the Court reaffirmed and clarified several points of law.

The Fuhr Court tells us that the bar for a “direct evidence” theory of discrimination/retaliation is high. So high, in fact, that Ms. Fuhr was unable to meet it despite presenting a statement from her supervisor that ““this is a good old boys network. They are doing this to you to get even … because you stood up for your rights … for winning the lawsuit.” Fuhr, slip op. at 4. The Court reaffirmed earlier precedent on this point holding that there must be no room for inference. Fuhr, slip op. at 8.

The Court also made it clear that a multiple year gap between a protected activity and an alleged retaliatory act is too much for a causal connection between the two to exist. In this case, the protected activity, winning the earlier lawsuit, and the retaliatory act, losing the job as girls basketball coach, were separated by nearly two years. The Court recognized that “temporal proximity alone cannot establish a causal connection,” but the “lack of temporal proximity alone can be fatal to an attempt to establish a causal connection.”  Fuhr, slip op. at 11.

And, finally, the Court clarified that when a plaintiff does not argue that they were subject to both (1) severe and pervasive harassment and (2) an adverse employment action, there is no duty incumbent upon the court to analyze both theories sua sponte. Here, Ms. Fuhr argued that the District Court erred in awarding summary judgment because it only analyzed whether she was subject to severe and pervasive harassment. The Court found this to be the proper analysis because Ms. Fuhr never argued that she had been subject to an adverse employment action. Instead, Ms. Fuhr limited her argument at the District Court to her allegation that she was subject to severe and pervasive harassment.

 

 Martha L. Alexander

Martha is an associate at Sturgill, Turner, Barker & Moloney, PLLC and concentrates her practice in the areas of employment law, education law and governmental law. She regularly works with employers, public entities and K-12 and higher education institutions defending them against claims of EEOC, sex, race and age discrimination, wrongful termination and Civil Rights violations.

Say Goodbye to the “Impact Rule”

In a recent opinion, the Kentucky Supreme Court has ruled that the “impact rule” for negligent infliction of emotional distress claims no longer applies in Kentucky:  Osborne v. Keeney, 2010 SC-000397-DG (Ky. 2012).[1]  Under this opinion, a plaintiff does not need to show physical contact or impact to maintain a claim for negligent infliction of emotional distress.

Prior to this ruling, Kentucky followed the “impact rule” with regards to claims for negligent infliction of emotional distress.  The “impact rule” meant that a person could not seek damages for negligent infliction of emotional distress unless a physical impact or contact had occurred.  For example, a mother who watched her child struck and killed by a negligent driver but who did not come into contact with the car or any debris would not be able to recover damages for negligent infliction of emotional distress under the “impact rule.”  The advantage of the rule was that it provided a bright line test for liability:  no impact, no liability.

The Kentucky Supreme Court, however, has now ruled that Kentucky will no longer apply the “impact rule.”  Under the Osborne decision, a plaintiff is not required to show physical impact or contact to seek damages for negligent infliction of emotional distress.  Instead, a plaintiff must establish the basic elements of negligence – duty, breach of duty, injury, and proximate cause.  Additionally, the plaintiff must present expert medical or scientific testimony of mental distress manifesting in a medical injury, that is, that the plaintiff suffered mental stress or an emotional injury that is greater than a reasonable person could be expected to endure given the circumstances.

For example, in the Osborne case, the plaintiff’s home had been hit by an airplane.  The plaintiff was not struck by the airplane or by any debris but an internist testified that she was in shock and that her pre-existing conditions, which included anxiety, depression and insomnia, had been aggravated and that she was emotionally unstable.  Even though there was no physical contact, the court held that the Osborne plaintiff may be able to maintain a claim for negligent infliction of emotional distress.

This new ruling will affect all pending and future cases.  The Kentucky Supreme Court explicitly stated that the abandonment of the “impact rule” will apply retroactively to all cases that will be tried or retried after the opinion becomes final and all pending cases in which the issue has been preserved.


[1] The opinion was rendered on December 20, 2012 and is to be published; it is not yet final.

Jamie Wilhite Dittert

Jamie is an associate at Sturgill, Turner, Barker & Moloney, PLLC who practices in the areas of insurance defense and heath care law. Jamie defends insurance providers and their insureds in matters involving premises liability, personal injury and property damage. Her work in the health care law realm focuses on long-term care litigation and medical malpractice defense.

 

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