Kentucky Employment Law Blog

Can Walking Off the Job Be Protected Activity?

Can walking off the job be protected activity and used as a basis for a retaliation claim?  The Sixth Circuit suggested that it could recently in Wasek v. Arrow Energy, No 10-2418 (June 20, 2012).

As reported in an earlier post, Is A Transfer That Limits Future Career Prospects an Adverse Employment Action?, Wasek worked as a derrick hand on an oil rig in Pennsylvania. He was the subject of repugnant and outrageous conduct by a co-worker that he believed reasonably constituted same-sex sexual harassment.  He reported the conduct in accordance with Arrow's procedures but got nowhere other than to be told to stop "whining." In frustration Wasek left the job site. He later claimed Arrow had retaliated against him, a claim that required him to show that he had engaged in protected activity.

The biggest problem for Wasek's claim was that he had abruptly walked off the job, an action which caused Arrow to ban him from further work for it in Pennsylvania. But could Wasek's walking off the job be protected activity the Sixth Circuit considered:

Leaving the work site could be protected activity if leaving itself were a "complaint" about sexual harassment.  But this would require a fact-intensive inquiry into whether or not leaving the work site was reasonable under the circumstances. 

Alas, Wasek did not argue that walking off the job was protected activity and the Sixth Circuit declined to do so for him, observing "at this stage in the process, it would be improper to create arguments for Wasek in order to reach this issue." And so the Court did not; but it did affirm summary judgment in favor of Arrow.

The Sixth Circuit's suggestion that walking off the job could constitute protected activity is similar to the holdings in other cases that policy violations can, nevertheless, also constitute protected activity: Can A Policy Violation Also be Protected Activity?

Robert L. Abell
www.RobertAbellLaw.com 

Is A Transfer That Limits Future Career Prospects A Materially Adverse Employment Action?

Is a transfer that limits future career prospects a materially adverse employment action?  The answer is "yes" according to the Sixth Circuit's decision in Wasek v. Arrow Energy, No 10-2418 (June 20, 2012). 

Wasek worked for Arrow Energy as a derrick hand at an oil rig in Pennsylvania.  At the time, nine of Arrow's thirteen rigs were located in Pennsylvania, the others being in Michigan, West Virginia and New York. The plaintiff, Harold Wasek, after being warned not to, complained about a same-sex sexual harassment directed at him by a co-worker. As a result, he was reassigned to a rig in Michigan. He claimed retaliation and argued that the reassignment to Michigan was a materially adverse employment action. The Sixth Circuit agreed and in an opinion written by District Judge Amul Thapar explained as follows:

... the ban was materially adverse to Wasek's employment because nine of Arrow Energy's thirteen rigs are in Pennsylvania.  Wasek's future employment options were severely limited.  See Barton v. Zimmer, 662 F3d 448, 454 (7th Cir. 2011)(noting that adverse employment actions include transfers that reduce future career prospects).

Robert L. Abell
www.RobertAbellLaw.com 

Drug Company Sales Reps Not Entitled to Overtime, Supreme Court Rules 5-4

A predictably divided Supreme Court has ruled 5-4 that drug company sales reps are not entitled to overtime compensation under the Fair Labor Standards Act in Christopher v. SmithKline Beecham, No 11-204 (June 18, 2012).  The Court's ruling is contrary to a 2010 ruling by the Second Circuit (earlier reported on at Drug Sales Reps Not Exempt from Overtime, Second Circuit Rules) and relieves giant drug company corporations like SmithKline Beecham and others from, as the Court's opinion noted, "potentially massive liability."  

The Fair Labor Standards Act exempts from its overtime compensation requirements persons employed as "outside salesmen." The Court majority (the opinion was written by Justice Alito joined by the entirely predictable cohort of Roberts, Kennedy, Thomas and Scalia) ruled that the drug sales reps met the definition of "outside salesmen" even though they did not actually consumate any sales.  

The decision can be read in a number of ways and illustrates a number of points.  First, one could say the Court majority of Chief Justice Roberts and Justices Kennedy, Thomas, Alito and Scalia again demonstrated their concern for assuring that the Nation's largest corporations avoid and evade "potentially massive liability."

Second, the case can be read as an example of a hostile Court majority blocking and frustrating the policy initiatives of a executive administration to which they are opposed. Justice Alioto's majority opinion pointedly and emphatically criticized the determination of the Obama Administration to enforce fully the Fair Labor Standards Act. One of the initiatives of this heightened emphasis on enforcement was the Department of Labor changed its position regarding whether drug company sales reps met the statutory exemption. Elections may be about something but the Court majority is obviously prepared to block any policy initiatives that, as the Court majority arguably sees it, could impose liability (massive or otherwise) on corporate interests for complying with even long-established laws like the Fair Labor Standards Act.

Third, the majority's opinion strongly suggests that the Fair Labor Standards Act has different application and interpretation depending on how much money the employee is making. The Court, after an introductory paragraph, indicates its bias by asserting that the FLSA was enacted to protect covered workers "from substandard wages and oppressive working hours." This is only partly accurate and would seem to miss the point at that. The protection from "substandard wages" comes from the minimum wage requirements in the FLSA that were in no way at issue in the case. The FLSA does not include any restriction or cap on the number of hours that an employee may be required to work; it simply requires that for those hours worked over 40 the employee must be paid at a higher wage rate. The point of this is to encourage hiring of more workers and creating more jobs. My own experience is that a vast majority of people are happy for the opportunity to increase their earnings by working overtime hours. So the overtime pay requirement of the FLSA is not protection of employees but an attempt to encourage hiring of more employees. 

Fourth, like it or not, the Court's decision is defensible. While the drug company reps do not complete a sale in the sense that they get an acceptance from a buyer, they come pretty close and they surely enable sales. Probably it is true that drug company sales reps function like and consider themselves to be salesmen in the traditional sense. 

Robert L. Abell
www.RobertAbellLaw.com 

"The Easily-Met Burden of A Prima Facie Case"

Finding that the plaintiff had established "the easily-met burden of a prima facie case" the Sixth Circuit reversed the summary judgment entered by the district court and remanded Paula Brown's retaliation claim for trial in Paula Brown v. Lexington-Fayette Urban County Government, No 10-5846 (June 12, 2012).  The Sixth Circuit also advised that the case "illustrates the inherent risk in limiting analysis to the prima facie stage of Title VII litigation." 

The easily met burden of a prima facie case was described as follows:

At the prima facie stage of the litigation, however, the burden upon the plaintiff is minimal.  See EEOC v. Avery Dennison Corp., 104 F3d 858, 861 (6th Cir 1997).  "It is a burden easily met," Wrenn v Gould, 808 F2d 493, 500 (6th Cir 1987), and "is not onerous." Jackson v RKO Bottlers of Toledo, Inc., 743 F2d 370, 377 (6th Cir 1984). "All that is required at the prima facie stage is to demonstrate that she has a case, that the evidence is on her side." Avery Dennison Corp., 104 F3d at 861.

Robert L. Abell
www.RobertAbellLaw.com