Labor Law Blog

It is well established that Title VII and other anti-discrimination statutes prohibit an employer from retaliating against an employee who has engaged in the “protected activity” of filing a complaint.  The anti-retaliation protections extend not only to the employee who has complained about discrimination, but also to individuals, such as witnesses, who participate in an investigation. In the 2006 decision Burlington N. & S.F.R. Co. v. White, the Supreme Court held that Title VII’s anti-retaliation provision prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

On January 24, 2011, the Supreme Court held unanimously that Title VII’s anti-retaliation protections extend to the fiancé of an employee who had engaged in protected activity.    In Thompson v. N. Am. Stainless, LP, three weeks after a female employee filed sex discrimination charges against her employer, the Company terminated the woman’s fiancé from his job.  There were two issues before the Court:  First, whether the termination of the fiancé fell within the anti-retaliation provisions of Title VII and second, whether the fiancé had an independent right to sue the employer. 

The Court readily determined that the termination of the fiance fell within the antiretaliation protections of Title VII.  Writing for the Court, Justice Scalia stated: “We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” The Court acknowledged that prohibiting reprisals against third parties could lead to “difficult line-drawing problems” – perhaps retaliating against an employee by firing his fiancée would dissuade the employee from engaging in protected activity, but what about firing an employee’s girlfriend, close friend, or trusted co-worker?– but determined that such difficulties did not justify a categorical rule permitting third-party reprisals.   The Court declined to identify a fixed class of relationships for which third-party reprisals are unlawful, but instead offered two ends of the spectrum:  “Firing a close family member will almost always” dissuade a worker from engaging in protected activity whereas “inflicting a milder reprisal on a mere acquaintance will almost never do so.”  The Court declined to generalize beyond those extremes as to the significance of any given act of retaliation, other than emphasizing that the standard for judging harm in the particular factual context must be “objective.”  According to the Court, “given the broad statutory text and the variety of workplace contexts in which retaliation may occur, Title VII’s antiretaliation provision is simply not reducible to a comprehensive set of clear rules.”   

With respect to the distinct question as to whether the fiancé had the right to institute a Title VII action against the employer, the Court held that the fiancé  fell within the “zone of interests” that Congress sought to protect in enacting Title VII.  The Court reasoned that because the fiancé was an employee, and the purposes of Title VII were to protect employees from their employer’s unlawful actions. In so ruling, the Court noted that the fiancé was not an “accidental victim” who suffered “collateral damage” but rather, the intended target of the employer’s effort to punish the employee who had originally filed sex discrimination charges.

In light of the Court’s ruling, employers should review any adverse employment decisions against the family members and close personal contacts of an employee who has engaged in protected activity that may be considered to chill the exercise of protected activity.

The Pennsylvania Construction Workplace Misclassification Act, which imposes civil and criminal penalties on employers misclassifying construction workers as “independent contractors,” takes effect on February 10, 2011.  The new law provides that an individual who receives compensation to work in the construction industry is an independent contractor only if he or she:

• has a written contract to perform services with the construction industry business;
• is free from control or direction over the performance of such services under the contract and in fact; and
• is customarily engaged in an independently established trade, occupation, profession or business.

An individual is not “customarily engaged in an independently established trade, occupation, profession or business” with respect to services performed in the construction industry unless all six of the following criteria are met:

• the individual must possess the essential tools to perform the services independent of the business for whom the services are performed;
• under the individual’s arrangement with the business, the contractor must realize a profit or suffer a loss;
• the worker must have a proprietary interest in his/her business;
• he/she must have a business location separate from the company for whom the services are being performed;
• the individual must have previously performed the same services for another person, or “holds himself out to other persons as available and able, and in fact is available and able, to perform the same or similar services”; and
• the contractor must maintain liability insurance during the term of the contract of at least $50,000.

The new law also prohibits retaliation against any person who exercises rights under the law, including the right to file a complaint or inform another about an employer’s noncompliance with the Act. It is also a violation of the Act for a business to demand that an individual enter into an agreement which results in the improper classification of that individual as an independent contractor. 

The penalties for violations of the law include:

• Stop-work Orders:  Misclassification can lead to a court order requiring any misclassified employee to cease work within 24 hours and, if the majority of workers at the site are misclassified, could result in the shut down of the employer’s operations at the site.
• Civil Penalties:  The misclassification of a worker can result in penalties of up to $1,000 for the first violation and up to $2,500 for each subsequent violation. Each individual misclassified by an employer is a separate violation of the law.
• Criminal Penalties:  An intentional violation of the law is a criminal misdemeanor; a negligent misclassification is a criminal summary offense.

Posted by Caren Litvin, a partner at Paisner-Litvin LLP

The Genetic Information Nondiscrimination Act (“GINA”) prohibits employers from discriminating against employees or job applicants because of genetic information. GINA further restricts employers and other entities (employment agencies, labor organizations and joint labor-management training and apprenticeship programs) from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.

On January 10, 2011, employers will become subject to new regulations issued by the Equal Employment Opportunity Commission (“EEOC”) that interpret GINA.  Under the new rules, employers who request medical information under the Family Medical Leave Act (“FMLA”), Americans with Disabilities Act (“ADA”), or to verify an illness, must notify employees and their health care providers to not provide genetic information. Employers who have acquired genetic information even though they have not requested it, must carefully maintain the confidentiality of those medical records in a file separate from the employee’s personnel file.  A complete copy of the EEOC regulations may be found at http://federalregister.gov/a/2010-28011

Posted by Caren Litvin, a partner at Paisner-Litvin LLP

On December 22, 2010, the National Labor Relations Board (NLRB) proposed a rule that will require employers to post notices informing employees of their right to organize unions and to strike—just as employers must post notices advising employees about their rights under wage and hour laws, Title VII, OSHA and other laws.  The NLRB’s proposed rule further provides that if the employer customarily communicates with employees by email, the employer must provide e-mail notification to employees of their rights under the National Labor Relations Act (NLRA).  According to the Board, many employees protected by the NLRA are unaware of their rights under the statute and the goal of the proposed rule is to increase knowledge among employees to better enable the exercise of rights under the statute. The Board proposes the following sanctions for failure or refusal to post the required employee notices: (1) finding the failure to post the required notices to be an unfair labor practice; (2) tolling the statute of limitations for filing unfair labor practice charges against employers that fail to post the notices; and (3) considering the knowing failure to post the notices as evidence of unlawful motive in unfair labor practice cases.  The NLRB will entertain public comment on the proposed rule until February 22, 2011.   The full text of the proposed rule is set forth at www.nlrb.gov/About_Us/news_room/Notice_for_Rulemaking/2010-32019_PI.pdf

Posted by Caren Litvin, a partner at Paisner-Litvin LLP