Morgan v. Sundance: Waiver, Prejudice, and Arbitration Under Federal Law

In Morgan v. Sundance, Inc., 142 S. Ct. 1708 (2022), the Supreme Court held that prejudice is not a condition of finding that a party, by litigating too long, waived its right to stay litigation or compel arbitration under the Federal Arbitration Act.

Facts

Morgan worked as an hourly employee at a Taco Bell franchise owned by Sundance. When she applied for the job, Morgan signed an agreement to arbitrate employment disputes. Morgan later filed in court a collective action asserting that Sundance had violated federal law regarding overtime compensation. Initially, Sundance defended against the lawsuit in court, filing an unsuccessful motion to dismiss and engaging in an unsuccessful mediation. Then, nearly eight months after Morgan filed the lawsuit, Sundance moved to stay the litigation and compel arbitration under the Federal Arbitration Act (FAA). Morgan opposed the motion, arguing that Sundance had waived its right to arbitrate by litigating for so long.

The Eight Circuit granted the motion holding, in relevant part, that Sundance’s delay had not prejudiced Morgan. That decision applied Eighth Circuit precedent, under which a party waives its right to arbitration if it knew of the right; “acted inconsistently with that right”; and “prejudiced the other party by its inconsistent actions. However, the prejudice requirement is not a feature of federal waiver law generally. The Eighth Circuit adopted that requirement because of the “federal policy favoring arbitration.” Other courts had rejected such a requirement. The Supreme Court took the case to resolve the split over whether federal courts may adopt an arbitration-specific waiver rule demanding a showing of prejudice. 142 S. Ct. at 1708–1712.

The Court’s Decision

The Court vacated and remanded, holding that there was no arbitration-specific waiver rule requiring a showing of prejudice. Assuming that federal law governed the issue, the Court observed that federal courts may not create “arbitration-specific variants” of federal procedural rules, like those concerning waiver, based on the FAA’s “policy favoring arbitration.” The Court observed that that policy “is merely an acknowledgment of the FAA’s commitment to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate and to place such agreements upon the same footing as other contracts.” Granite Rock Co. v. Teamsters, 561 U.S. 287, 302, 130 S.Ct. 2847 (2010) (internal quotation marks omitted). 142 S. Ct. at 1712–1714.

The Morgan Court therefore held that a court must hold a party to its arbitration contract just as the court would to any other kind. But a court may not devise novel rules to favor arbitration over litigation. The Court emphasized that the federal policy is about treating arbitration contracts like all others, not about fostering arbitration. 142 S. Ct. at 1712–1714.

Supporting this conclusion, the Court observed that the text of the FAA makes clear that courts are not to create arbitration-specific procedural rules like the one the Eight Circuit applied. For example, Section 6 of the FAA provides that any application under the FAA — including an application to stay litigation or compel arbitration — “shall be made and heard in the manner provided by law for the making and hearing of motions” (unless the statute says otherwise). The Court noted that this directive to treat arbitration applications “in the manner provided by law” for all other motions is simply a command to apply the usual federal procedural rules, including any rules relating to a motion’s timeliness. Therefore, the Court reasoned, because the usual federal rule of waiver does not require prejudice, Section 6 of the FAA supports the conclusion that prejudice is not a condition of finding that a party waived its right to stay litigation or compel arbitration under the FAA. 142 S. Ct. at 1712–1714.

The Court then concluded that after eliminating the prejudice requirement, the waiver inquiry would focus on Sundance’s conduct: for example, whether Sundance knowingly relinquished the right to arbitrate by acting inconsistently with that right. The Court noted that on remand, the Court of Appeals could resolve that question, or could determine that a different procedural framework was appropriate. The Court’s sole holding was that courts were not permitted to make up a new procedural rule based on the FAA’s “policy favoring arbitration.” 142 S. Ct. at 1712–1714.

Analysis

In sum, Morgan held that prejudice is not a condition of finding that a party, by litigating too long, waived its right to stay litigation or compel arbitration under the Federal Arbitration Act. This is because courts are not permitted to make up new arbitration-specific procedural rules based on the FAA’s “policy favoring arbitration.”

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1–434–218–3133 or send an email to info@coffieldlaw.com.

Originally published on Tim Coffield Attorney’s website.

Cruz v. Maypa: Equitable Tolling in FLSA Cases

In Cruz v. Maypa, 773 F.3d 138 (4th Cir. 2014), the Fourth Circuit held that the limitations period for claims under the Fair Labor Standards Act was equitably tolled because the employer failed to post the required notice explaining workers’ rights under the FLSA. The decision is important because it means an employer who fails to post the required notice may lose its ability to assert a statute of limitations defense in FLSA cases. 

Statutory Background

Congress enacted the FLSA “to protect all covered workers from substandard wages and oppressive working hours.” Trejo v. Ryman Hosp. Props., Inc., 795 F.3d 442, 446 (4th Cir. 2015) (quotes omitted.) To accomplish these goals, the FLSA requires employers to pay their employees both a minimum wage and overtime pay. Hall v. DIRECTV, LLC, 846 F.3d 757, 761 (4th Cir. 2017).

Specifically, the FLSA requires employers to pay their employees at least the federal minimum wage. 29 U.S.C. § 206(a)(1). And it requires employers to pay not less than time and a half for each hour worked over forty hours during a workweek. Id. § 207(a)(1). 

Relevant to the decision in Cruz, the FLSA also requires employers to “post and keep posted a notice explaining the [FLSA] … in conspicuous places”:

Every employer employing any employees subject to the Act’s minimum wage provisions shall post and keep posted a notice explaining the [FLSA], as prescribed by the Wage and Hour Division, in conspicuous places in every establishment where such employees are employed so as to permit them to observe readily a copy.…

29 C.F.R. § 516.4. 

Claims for violations of the minimum wage or overtime provisions of the FLSA have a 2- or 3-year statute of limitations. 29 U.S.C. § 255(a).

Facts

This case involved a horrible story of forced labor and human trafficking. Cruz was a citizen of the Philippines. She spoke Tagalog and Kapampangan fluently, and spoke limited English. In 2001, a friend told Cruz about an opportunity to travel to the United States to work for Maypa, who at the time was employed by the World Bank. Cruz submitted her resume. Maypa later faxed Cruz an employment contract. The contract said Cruz would be employed as a domestic employee at Maypa’s house for two years where she would work 35-40 hours per week for $6.50 an hour. Cruz, 773 F.3d at 139-43

Cruz reviewed the contract with the help of friends who were more fluent in English. She was excited about the terms. But before Cruz could sign, Maypa told her over the phone that she would actually be paying Cruz only $250 a month rather than the $6.50 per hour. Cruz did not know that the FLSA required a much higher minimum wage. On January 17, 2002, she signed the contract. Shortly thereafter she left the Philippines for the first time and flew to the United States. Id.

Soon after Cruz arrived in Virginia, the Maypas began subjecting her to inhumane working and living conditions. Cruz was required to work seven days a week for 17 to 18 hours per day. She was expected to remain on call at night. In the six years she remained under the family’s control, Cruz was never allowed to take a day off, even when she was ill. She was expected to provide 24–hour care for all four of the family’s children. She was directed to maintain two separate family homes by mowing the lawns, trimming trees, shoveling snow, cleaning the pool, and performing other landscaping duties. For this labor, Cruz initially was initially paid just $250 per month, or approximately $8 per day. By the time of her escape six years later, Cruz was making $450 per month, which amounted to about $15 per day. Id.

Maypa used Cruz’s immigration status and vulnerable situation to keep her from leaving. Within hours of Cruz’s arrival at Maypa’s home, Maypa confiscated Cruz’s passport. The Maypas never permitted Cruz to return to the Philippines to visit her family, even when relatives died and when her daughter and father suffered life-threatening health events. The Maypas also prohibited Cruz from leaving their homes alone except to walk their dog. Cruz did not know anyone in Virginia besides the family, and they lived in rural areas with no sidewalks and no access to public transportation. She was “effectively trapped in their homes.” In 2008, with the help of a friend in another state,, she escaped. Cruz, 773 F.3d at 139-43.

At no point did the Maypas post the required notice of employees’ rights to minimum wages and overtime wages under the FLSA regulation cited above. 

In 2013, more than 5 years after escaping, Cruz filed suit asserting various causes of action, including claims for violation of the FLSA. As noted above, FLSA claims have a 2- or 3-year statute of limitations. 29 U.S.C. § 255(a).

The district court declined to equitably toll Cruz’s claims and therefore dismissed Cruz’s FLSA claims as time-barred because she had not brought them within the FLSA’s maximum three-year limitations period for willful violations. Cruz, 773 F.3d at 142-43.

The Court’s Decision

The Fourth Circuit held that Cruz’s FLSA claims should be equitably tolled due to the defendants’ failure to post the required notice under the FLSA. 

In reaching this conclusion, the Court first noted that equitable tolling is generally available when  1) “the plaintiffs were prevented from asserting their claims by some kind of wrongful conduct on the part of the defendant,” or 2) “extraordinary circumstances beyond plaintiffs’ control made it impossible to file the claims on time.” Cruz at 146 (quoting Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (internal quotation marks omitted)). 

The Court evaluated this rule in light of its earlier decision in Vance v. Whirlpool Corp., 716 F.2d 1010 (4th Cir. 1983), which held that the 180–day filing requirement of the Age Discrimination in Employment Act (“ADEA”) was tolled because the plaintiff’s employer failed to post statutory notice of workers’ rights under the ADEA. Cruz at 146 (discussing Vance at 1013).

The Court noted that it made good sense to extend Vance’s reasoning to the FLSA. After all, the notice requirements in the ADEA and the FLSA are almost identical. The ADEA regulation, 29 C.F.R. § 1627.10, requires employers to “post and keep posted in conspicuous places … the notice pertaining to the applicability of the [ADEA]”). Similarly, the FLSA regulation, 29 C.F.R. § 516.4, requires employers to “post and keep posted a notice explaining the [FLSA] … in conspicuous places[.]” The Court pointed out that the purpose of these requirements is to ensure that those protected under the laws are aware of and able to assert their rights. 

The Court further observed that neither the ADEA nor the FLSA imposed statutory penalties for failure to comply with the notice requirements. Cruz at 147 (citing Cortez v. Medina’s Landscaping, Inc., No. 00 C 6320, 2002 WL 31175471, at *5 (N.D.Ill. Sept. 30, 2002) (extending an actual notice tolling rule similar to Vance from the ADEA to the FLSA). “Therefore, absent a tolling rule, employers would have no incentive to post notice since they could hide the fact of their violations from employees until any relevant claims expired.” Cruz at 147.

The Court therefore held that its analysis in Vance applied with equal force to the notice requirement of the FLSA. Id.

The Court observed that under Vance, “tolling based on lack of notice continues until the claimant retains an attorney or obtains actual knowledge of her rights.” Cruz at 147 (citing 716 F.2d at 1013). The Fourth Circuit therefore instructed the district court to allow discovery on remand to determine whether Cruz’s FLSA claim was time-barred despite being equitably tolled. Id.

Analysis

In sum, Cruz held that that the limitations period for FLSA claims can be equitably tolled if the employer failed to post the required notice explaining workers’ rights under the FLSA. The decision is important because it means an employer who fails to post the required notice may lose its ability to assert a statute of limitations defense in FLSA cases. 

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

Virginia Minimum Wage Act: Increased Minimum Wages for Virginia Workers

The Virginia Minimum Wage Act, VA Code § 40.1-28.8, et seq. (“VMWA”), sets minimum wage levels for certain categories of Virginia workers that are higher than the federal minimum wage. 

Employer Defined

The VMWA defines the “employers” it covers broadly, as including:

any individual, partnership, association, corporation, or business trust or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee.

Va. Code  § 40.1-28.9(A). Under the VMWA, “employer” includes the Commonwealth, any of its agencies, institutions, or political subdivisions, and any public body. Id.

Employee Defined

Subject to the exceptions discussed below, VMWA also defines the “employees” it covers broadly, as including “any individual employed by an employer.” Va. Code  § 40.1-28.9(A). “Employee” also specifically includes home care providers. Id.

Exceptions from the VMWA

The VMWA carves out many categories of workers that do not qualify as “employees,” and who therefore are not covered by the VMWA’s minimum wage provisions. Under the VMWA, “employees” do not include:

  1. Any person employed as a farm laborer or farm employee;
  2. Any person engaged in the activities of an educational, charitable, religious, or nonprofit organization where the relationship of employer-employee does not, in fact, exist or where the services rendered to such organization are on a voluntary basis;
  3. Caddies on golf courses;
  4. Traveling salesmen or outside salesmen working on a commission basis; taxicab drivers and operators;
  5. Any person under the age of 18 working for his parent or legal guardian;
  6. Any person confined in any penal or corrective institution of the Commonwealth or any of its political subdivisions or admitted to a state hospital or training center operated by the Department of Behavioral Health and Developmental Services;
  7. Any person employed by a summer camp for boys, girls, or both boys and girls;
  8. Any person under the age of 16, regardless of who they work for;
  9. Any person who is paid pursuant to 29 U.S.C. § 214(c) of the Fair Labor Standards Act (special provisions for certain disabled workers);
  10. Students participating in a bona fide educational program;
  11. Any person younger than 18 years of age and who is currently enrolled on a full-time basis in any secondary school, institution of higher education, or trade school, provided that the person is not employed more than 20 hours per week;
  12. Any person of any age who is currently enrolled on a full-time basis in any secondary school, institution of higher education, or trade school and is in a work-study program or its equivalent at the institution at which he is enrolled as a student;
  13. Any person who works as a babysitter for fewer than 10 hours per week;
  14. Any person participating as an au pair in the U.S. Department of State’s Exchange Visitor Program governed by 22 C.F.R. § 62.31;
  15. Any individual employed as a temporary foreign worker as governed by 20 C.F.R. Part 655; and
  16. Any person who is exempt from the federal minimum wage pursuant to 29 U.S.C. § 213(a)(3) (exempting employees of certain types of amusement or recreational establishments, organized camps, or religious or non-profit educational conference centers). 

Va. Code  § 40.1-28.9(A).

Wages Defined

The VMWA defines “wages” broadly, as

legal tender of the United States or checks or drafts on banks negotiable into cash on demand or upon acceptance at full value. “Wages” includes the reasonable cost to the employer of furnishing meals and lodging to an employee if such board or lodging is customarily furnished by the employer and used by the employee.

Va. Code  § 40.1-28.9(A). 

Tipped Employee Provision

Under the VMWA, a tipped employee is an employee who customarily and regularly receives tips totaling more than $30 each month from persons other than the employee’s employer. Va. Code  § 40.1-28.9(A). 

The VMWA has a special provision for calculating the wages of tipped employees. In determining the wages of a tipped employee, 

the amount paid such employee by his employer shall be deemed to be increased on account of tips by an amount determined by the employer, except in the case of an employee who establishes by clear and convincing evidence that the actual amount of tips received by him was less than the amount determined by the employer. In such case, the amount paid such employee by his employer shall be deemed to have been increased by such lesser amount. 

Va. Code  § 40.1-28.9(B). In other words, the employer may take credit towards its minimum wage obligation for the amount of tips the tipped employee receives. However, the VMWA prohibits an employer from classifying an individual as a “tipped employee” if the individual is prohibited by applicable federal or state law or regulation from soliciting tips. Id.

Minimum Wages

The VMWA provides that “employers” must pay to each of their “employees” – as those terms are defined in the VMWA – certain minimum “wages” – as that term is defined. Beginning on May 1, 2021, the Virginia minimum wage exceeds the federal minimum wage. Under the VMWA, the Virginia minimum wage increases over time, as follows:

Time PeriodVirginia Minimum Wage under VMWA
Prior to May 1, 2021A rate not less than the federal minimum wage.
May 1, 2021, until January 1, 2022 A rate not less than the greater of (i) $9.50 per hour or (ii) the federal minimum wage.
January 1, 2022, until January 1, 2023A rate not less than the greater of (i) $11.00 per hour or (ii) the federal minimum wage.
January 1, 2023, until January 1, 2025A rate not less than the greater of (i) $12.00 per hour or (ii) the federal minimum wage.
January 1, 2025, until January 1, 2026A rate not less than the greater of (i) $13.50 per hour or (ii) the federal minimum wage.*
*Only if reenacted by July 1, 2024. 
January 1, 2026, until January 1, 2027A rate not less than the greater of (i) $15.00 per hour or (ii) the federal minimum wage.*
*Only if reenacted by July 1, 2024.
From and after January 1, 2027A rate not less than the greater of (i) the adjusted state hourly minimum wage or (ii) the federal minimum wage.

VA Code § 40.1-28.10(A)-(G). As noted above, the VMWA provisions for January 2025 (13.50 per hour) and 2026 ($15.00 per hour) – subsections E and F of VA Code § 40.1-28.10 – only become effective if they are reenacted by a regular or special session of the General Assembly prior to July 1, 2024. Id.

The VMWA further provides a process and formula for setting the “adjusted state hourly minimum wage” on an annual basis beginning in 2026:

By October 1, 2026, and annually thereafter, the Commissioner shall establish the adjusted state hourly minimum wage that shall be in effect during the 12-month period commencing on the following January 1.

VA Code § 40.1-28.10(H). The adjusted state hourly minimum wage is to be set at the sum of:

(i) the amount of the state hourly minimum wage rate that is in effect on the date such adjustment is made, and 

(ii) a percentage of the amount described in clause (i) that is equal to the percentage by which the United States Average Consumer Price Index for all items, all urban consumers (CPI-U), as published by the Bureau of Labor Statistics of the U.S. Department of Labor, or a successor index as calculated by the U.S. Department of Labor, has increased during the most recent calendar year for which such information is available. 

VA Code § 40.1-28.10(H). The amount of each annual adjustment may not be less than zero. Id.

The VMWA provides a lesser minimum wage rate for any person enrolled in an established employer on-the-job or other training program for a period not to exceed 90 days which meets standards set by regulations adopted by the Commissioner:

Beginning May 1, 2021, every employer shall pay to each of his employees at a rate not less than the federal minimum wage or 75 percent of the Virginia minimum wage … whichever is greater. For the purposes of this subdivision “employee” means any person or individual who is enrolled in an established employer on-the-job or other training program for a period not to exceed 90 days which meets standards set by regulations adopted by the Commissioner.

VA Code § 40.1-28.10(A)(2).

Civil Actions and Remedies for Employees

The VMWA contains a remedies provision. It provides that an employer who violates the law’s minimum wage requirements is liable to the affected employee or employees affected for:

  • the amount of the unpaid minimum wages, and
  • interest at eight percent per year on the unpaid wages, with the interest to be awarded from the date or dates the wages were due.

VA Code § 40.1-28.12. In addition to any judgment awarded to the employee or employees, the court may also require the employer to pay reasonable attorney’s fees incurred by the employee or employees. Id.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

North Carolina Equal Employment Practices Act: Anti-Discrimination Policy Protections for North Carolina Employees

The North Carolina Equal Employment Practices Act (NCEEPA) prohibits employment discrimination based on race, color, national origin, religion, age, sex, or handicap. 

The law is codified at N.C. Gen. Stat. Ann. §§ 143-422.1 to 143-422.3. The NCEEPA applies to employers who regularly employ 15 or more employees. While the statute does not provide a private cause of action, it can be the basis for a common law claim of wrongful discharge in violation of state public policy. 

Covered Employers

The NCEEPA covers employers which “regularly employ 15 or more employees.” N.C. Gen. Stat. Ann. §§ 143-422.2(a).

Policy Statement and Protected Classes

The NCEEPA provides that it is the public policy of North Carolina to “protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap[.]” The statute therefore prohibits employment discrimination based on membership in these protected classes. N.C. Gen. Stat. Ann. §§ 143-422.2(a).

The NCEEPA further explains that “the practice of denying employment opportunity and discriminating in the terms of employment foments domestic strife and unrest, deprives the State of the fullest utilization of its capacities for advancement and development, and substantially and adversely affects the interests of employees, employers, and the public in general. N.C. Gen. Stat. Ann. §§ 143-422.2(b).

Definition and Scope of Discrimination

The NCEEPA does not define what constitutes the prohibited “discrimination or abridgement” on account of the above protected classes. However, it does make clear that the right to be free from discrimination or abridgement applies to both job applicants and current employees (“the right of and opportunity of all persons to seek, obtain, and hold employment…”). N.C. Gen. Stat. Ann. §§ 143-422.2(a).

Administrative Investigations

The NCEEPA provides that the state Human Relations Commission in the Civil Rights Division of the Office of Administrative Hearings has the authority to:

N.C. Gen. Stat. Ann. §§ 143-422.3. The law further instructs the agency to use its resources to  “effect an amicable resolution of the charges of discrimination.” Id. There are strict time limits on filing charges of discrimination with the EEOC, which investigates violations of certain federal employment discrimination laws. Here is a helpful link to the EEOC website with more information on those time limits.

Enforcement

The NCEEPA does not provide employees with a private right of action. However, the statute’s policy statement can be the basis for a common law claim of wrongful discharge in violation of public policy. See, e.g., Considine v. Compass Grp. USA, Inc., 145 N.C.App. 314, 317, 551 S.E.2d 179, 181 (2001). (“[North Carolina] Courts have recognized an exception to the employment at will doctrine by identifying a cause of action for wrongful discharge in violation of public policy. Under the exception, the employee has the burden of pleading and proving that the employee’s dismissal occurred for a reason that violates public policy.” Id. (collecting cases). 

North Carolina courts have held that the limitations period for a claim of wrongful discharge in violation of public policy is three years. See, e.g., Winston v. Livingstone Coll., Inc., 210 N.C. App. 486, 488, 707 S.E.2d 768, 770 (2011) (“The limitations period for a tort action based upon wrongful discharge in violation of public policy is three years.” (citing N.C. Gen. Stat. Ann. § 1-52(1) (2011)); Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 260, 580 S.E.2d 757, 762 (2003) (“The statute of limitations for such a claim [wrongful discharge in violation of public policy] is three years.” (citing N.C. Gen. Stat. Ann. § 1–52(5) (2003)).

This article was also published to TimCoffieldAttorney.net.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.  

Virginia Whistleblower Protection Law: Broad Protections for Whistleblowers

Virginia’s Whistleblower Protection Law (“VWPL”) offers strong protections for Virginia workers who report unlawful practices or refuse an employer’s order to engage in unlawful practices. The law protects a wider range of conduct than that protected under Virginia’s Bowman claim jurisprudence. It covers both internal and external whistleblower activities. It allows courts to award aggrieved employees injunctive relief and reinstatement, compensation for lost wages, benefits, and other remuneration, as well as interest, reasonable attorneys’ fees, and costs. In short, the VWPL t is a powerful law for protecting the rights of Virginia employees who stand up and “blow the whistle” on unlawful practices by their employers. 

Types of Retaliation Prohibited

The VWPL protects employees who engage in protected whistleblower activities from retaliation in most aspects of the employment relationship. Specifically, the law prohibits employers from discharging, disciplining, threatening, discriminating against, or penalizing an employee, or from taking other retaliatory action with respect to the employee’s compensation, terms, conditions, location, or privileges of employment, because the employee engages in a protected activity. VA Code § 40.1-27.3(A). 

Protected Activities Under the VWPL

The VWPL includes a list of employee whistleblower activities that it protects from employer retaliation. These “protected activities” are: 

  1. The employee, or a person acting on behalf of the employee, in good faith reports a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official;
  2. The employee is requested by a governmental body or law-enforcement official to participate in an investigation, hearing, or inquiry;
  3. The employee refuses to engage in a criminal act that would subject the employee to criminal liability;
  4. The employee refuses an employer’s order to perform an action that violates any federal or state law or regulation and the employee informs the employer that the order is being refused for that reason; or
  5. The employee provides information to or testifies before any governmental body or law-enforcement official conducting an investigation, hearing, or inquiry into any alleged violation by the employer of a federal or state law or regulation.

VA Code § 40.1-27.3(A)(1)-(5) (emphasis added). The law prohibits employers from retaliating against employees for engaging in any of these activities. 

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com. 

Learn more about Virginia’s whistleblower updates at TimCoffieldAttorney.net.

Garcetti v. Ceballos: Private Citizen Speech, Public Employment, and the First Amendment

In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court reaffirmed its prior decisions that the First Amendment to the U.S. Constitution protects government employees from retaliation for speaking out as private citizens on matters of public concern. But when public employees make statements pursuant to their official duties, they are not speaking as private citizens for First Amendment purposes, and the Constitution does not protect their communications from employer discipline. 

Facts

Ceballos was a supervising deputy district attorney for the Los Angeles County District Attorney’s Office, also known as a “calendar deputy.” A defense attorney asked Ceballos to review a case in which, the defense attorney claimed, police obtained a search warrant using an inaccurate affidavit. After examining the affidavit and visiting the location it described, Ceballos determined the affidavit contained serious misrepresentations. 

After relaying his findings to his supervisors at the District Attorney’s Office, Ceballos followed up with a disposition memorandum recommending that the case be dismissed. The District Attorney’s Office nevertheless moved forward with prosecuting the case. 

At a court hearing on the defendant’s motion to challenge the search warrant, Ceballos repeated his observations about the inaccurate affidavit. The trial court rejected the challenge. 

Ceballos claimed that in the aftermath of these events, he was subjected to a series of retaliatory employment actions. These actions included reassignment from his calendar deputy position to a trial deputy position, transfer to another courthouse, and denial of a promotion. 

Claiming that his supervisors at the District Attorney’s Office retaliated against him for his memorandum, in violation of his First Amendment and Fourteenth Amendment free speech rights, Ceballos filed suit. The District Court granted summary judgment against Ceballos, ruling, among other things, that the memo was not protected speech because Ceballos wrote it pursuant to his employment duties. The Ninth Circuit reversed, holding that the memo’s allegations were protected under the First Amendment analysis in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983). The District Attorney’s Office appealed. Garcetti at 413-417.

The Court’s Decision

The Garcetti Court held that when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and therefore the Constitution does not insulate their communications from employer discipline. The Court then determined that Ceballos did not speak as a citizen when he wrote his memo and, therefore, his speech was not protected by the First Amendment.

Read more about the case at TimCoffieldAttorney.com.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.  

Comcast v. NAAAM: Law of Causation in 1981 Claims

In Comcast Corp. v. National Association of African American-Owned Media, No. 18-1171, __ U.S. __ (March 23, 2020), the Supreme Court held that race-discrimination claims brought under the Civil Rights Act of 1886, 42 U.S.C. § 1981, are subject to a but-for standard of causation.

Background

The Civil Rights Act of 1886, now codified at 42 U.S.C. § 1981, provides that “[a]ll persons … shall have the same right … to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens[.]” The law has been interpreted as, inter alia, prohibiting discrimination because of race in employment and other kinds of contractual relationships. 

A similar discrimination law, Title VII of the Civil Rights Act, specifically provides for a “motivating factor” causation standard — that is, an employee can prevail on a Title VII race discrimination claim by proving that her race was a “motivating factor for any employment practice, even though other factors also motivated that practice.” 42 U.S.C. § 2000e-2(m).

The statutory language of 42 U.S.C. § 1981, however, does not specify the causation standard for proving race discrimination under § 1981. 

The causation standard under § 1981 is important for employees because this law is, in some ways, more powerful than Title VII. For example, while Title VII race discrimination claims are subject to caps on compensatory and punitive damages, see 42 U.S.C. § 1981a, race discrimination claims under § 1981 are not subject to damages caps. 

Read about this case’s facts at TimCoffieldAttorney.com.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com. 

Title I of the Americans with Disabilities Act: Protections for Employees with Disabilities

Enacted in 1990, the Americans with Disabilities Act is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life.  This includes jobs, schools, transportation, and all public and private places that are open to the general public.  Similar to laws that prohibit discrimination based on race, gender, or religion, the ADA’s purpose is to ensure that people with disabilities have the same rights and opportunities as those who do not.  This protects disabled individuals by guaranteeing equal opportunities in public accommodations, transportation, state and local government services, telecommunications, and employment. The ADA is divided into five titles. The first four titles each address a different sphere of public life, and the fifth section contains laws that apply generally to the first four, including protections against retaliation for people who seek to exercise their rights under the ADA:

  • Title I: Equal Employment Opportunities for Individuals With Disabilities;
  • Title II: Nondiscrimination on the Basis of Disability in State and Local Government Services;
  • Title III: Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities;
  • Title IV: Telecommunications;
  • Title V: Miscellaneous, including protections against retaliation.

Title I of the ADA is intended to ensure disabled individuals have access to the same employment opportunities as people without disabilities. This part of the law is enforced by the Equal Employment Opportunity Commission. Among other things, this part of the law requires employers to provide reasonable accommodations to assist employees that qualify as disabled under the ADA. For example, an employer may need to provide a deaf employee with access to sign language interpreters, provide ramps for employees who use wheelchairs, or under some circumstances provide disabled employees with ergonomic desks or modified workstations.

Read the full article at TimCoffieldAttorney.net.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

Tyson Foods v. Bouaphakeo: Representative Proof in Wage Classes

In Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036 (2016), the Supreme Court held that representative proof from a sample, based on an expert witness’s estimation of average time that employees spent donning and doffing protective gear, could be used to show predominance of common questions of law or fact for purposes of class certification. The Court also reaffirmed the long-held FLSA principle that where an employer fails to keep accurate time records, an employee can meet her burden by providing evidence showing hours worked as a matter of just and reasonable inference.

Facts

The plaintiffs worked for Tyson Foods. These employees worked in the kill, cut, and retrim departments of a Tyson’s pork processing plant in Iowa. Their work required them to wear protective gear, but the exact composition of the gear depended on the tasks a worker performed on a given day. Tyson compensated some, but not all, employees for this donning and doffing, and did not record the time each employee spent on those activities. 

The employees filed suit, alleging that the donning and doffing were integral and indispensable to their hazardous work and that Tyson’s policy not to pay for those activities denied them overtime compensation required by the Fair Labor Standards Act of 1938 (FLSA). They also raised a claim under an Iowa state wage law. 

Learn more about this case at TimCoffieldAttorney.com.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com. 

Bostock v. Clayton County: Title VII Protections for LGBTQ Employees

In the landmark Bostock v. Clayton County, No. 17–1618, 590 U.S. ___ (2020), the Supreme Court held that an employer who fires an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964. 

Facts

In each of three consolidated cases, an employer fired an employee at least in part for being 

homosexual or transgender. Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee when began playing a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. R.G. & G.R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed the company that she planned to “live and work full-time as a woman.” 

Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. The employees’ cases shared a common theory: that Title VII’s prohibition of workplace discrimination “because of sex” prohibited discrimination because an employee is homosexual or transgender. Their respective Circuit Courts reached conflicting conclusions. The Eleventh Circuit allowed the dismissal of Bostock’s suit, holding that Title VII does not prohibit employers from firing employees for being gay. The Second and Sixth Circuits, however, allowed Zarda’s and Stephens’ sex discrimination claims, respectively, to proceed under Title VII. 

Read about the court’s decision at TimCoffieldAttorney.com.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.