New Jersey Employment Lawyer Blog
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Last week, in University of Texas Southwestern Medical Center v. Nassar, the United States Supreme Court ruled there is a higher burden for an employee to prove his or her employer retaliated than to prove it discriminated under Title VII of the Civil Rights Act of 1964. Title VII is a federal law that prohibits employers from discriminating against their employees based on their race, color, religion, sex, or national origin. It also prohibits companies form retaliating against employees because they opposed, complained about, testified about, or otherwise pursued a claim of discrimination or harassment.

Supreme Court and Retaliation.jpgThe Civil Rights Act of 1991 makes it clear that an employee can prove a Title VII discrimination claim if she proves her race, color, religion, sex, or national origin was a “motivating factor” in the employer’s decision to take a negative employment action toward her even if the company considered other lawful factors in making its decision. If an employee meets this requirement, the company still can avoid paying damages if it proves it would have made the same decision even without considering the illegal factor. The question in the Nassar case was whether the same standards apply to retaliation claims.

Several years ago, the Supreme Court ruled that since the Civil Rights Act of 1991 only amended Title VII, claims under the Age Discrimination in Employment Act (ADEA) do not follow the same motivating factor test. Instead, employees bringing cases under the ADEA have to prove the treatment they experienced would not have occurred but for their age. It is considered significantly more difficult to prove an employer’s decision would not have happened but for your age than it is to prove your age was a motivating factor in the company making that decision.

In Nassar, the Supreme Court ruled that since the Civil Rights Act of 1991 only mentions discrimination based on race, color, religion, sex and national origin when it created the motivating factor test, that test does not apply to retaliation claims. Instead, an employee trying to prove a retaliation claim under Title VII has to prove he or she would not have been fired, demoted, or otherwise treated worse but for his or her objection or complaint about discrimination.

Notably, the Court noted the number of retaliation cases being filed is increasing. It indicated that the number of such cases filed with the Equal Employment Opportunity Commission (EEOC) almost doubled between 1997 and 2012, to the point that the only type of case filed more frequently with the EEOC are race discrimination claims.

Fortunately, New Jersey and New York State have not adopted this heightened burden of proof in retaliation cases, and in my opinion neither state is likely to do so at any time soon. Rather, at least for now, both states only require employees to prove their objection or complaint about discrimination was a motivating factor in the company taking an adverse action against them. Nonetheless, it is part of a disturbing trend in which the Supreme Court is slowly making it more difficult for employees to enforce their legal rights. In fact, as discussed in a previous article, on the same day Nasser was decided the Supreme Court also Limited the Definition of a “Supervisor” under Title VII.

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Last week, the United States Supreme Court adopted a narrow definition of who is a “supervisor” under Title VII of the Civil Rights Act of 1964 (Title VII). Title VII is a federal law that prohibits discrimination based on race, color, national origin, sex or religion. The Court ruled that an employee has to have the authority to take tangible employment actions against another employee to be considered his or her supervisor. A tangible employment action is a significant job action such as hiring, firing, promoting, demoting, transferring or suspending an employee.

It is important to note that this narrower definition of supervisor probably does not apply under New Jersey or New York City law, and may not apply under New York law.

Supreme Court Defines Supervisor Narrowly.jpgThe definition of who is a supervisor under Title VII is significant because the Supreme Court has previously ruled that a different standard applies to determine when a company is liable for harassment committed by a supervisor than a coworker. Specifically, companies are strictly (directly) liable for a hostile work environment created by a supervisor if it results in an adverse employment action that has negative economic consequences, such as the employee being fired, demoted, or forced to quit. Alternatively, a company is vicariously (indirectly) liable for a supervisor’s harassment unless the company can prove (1) it made reasonable efforts to prevent and correct the harassment, such as having and enforcing an effective anti-harassment policy, and (2) the victim of the harassment unreasonably failed to take advantage of opportunities to prevent or correct the hostile work environment.

In contrast, an employer can be held liable for harassment by a coworker or subordinate under Title VII only if it was negligent in preventing the creation or continuation of a hostile work environment. In other words, the victim must prove the company “knew or reasonably should have known about the harassment but failed to take remedial action.” The Supreme Court explained that evidence of negligence can include the fact that an employer “did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed would be relevant.”

Maetta Vance, the employee in the case the Supreme Court decided, brought a claim of racial harassment and discrimination against her former employer, Ball State University. The University sought to dismiss the case, arguing it was not legally responsible for the alleged harassment because the person who committed it was not Ms. Vance’s supervisor. The lower courts both agreed.

Ms. Vance asked the Supreme Court to adopt the United States Equal Opportunity Commission (“EEOC”)’s broader definition of “supervisor,” which includes anyone who exercises significant control over the employee’s daily work. But, in Vance v. Ball State University, the Court rejected her position and ruled that generally only someone who has the authority to take an adverse employment action that has a negative economic consequence toward an employee can be considered a supervisor under Title VII. The Court also indicated that, under certain circumstances, an individual who does not officially have the authority to take an adverse employment action can be considered a supervisor if he/she has “substantial input” into those types of decisions in a way that indicates the employer delegated that power to him/her.

Since Ms. Vance admitted her harasser did not have the authority to fire, demote, or discipline her, the Supreme Court affirmed the dismissal of her case.

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Earlier this year, New Jersey’s Appellate Division affirmed a trial court’s decision to reduce a firefighter’s emotional distress damages award from $3.5 million to $500,000. The case involved a retaliation claim brought by Firefighter Kevin Reilly against the Village of Ridgewood. Mr. Reilly had objected about numerous violations of fire safety and Occupational Safety & Health Act (“OSHA”) regulations. He claimed the fire department retaliated against him by, among other things, placing a negative memo in his personnel file, investigating an argument he had with another firefighter while off duty, and repeatedly skipping him for a promotion. He filed a lawsuit alleging Ridgewood retaliated against him in violation of New Jersey’s Conscientious Employee Protection Act (“CEPA”).

It is unclear why, but prior to the trial the judge dismissed Mr. Reilly’s claim for lost salary and benefits. At the trial, the jury found Ridgewood retaliated against Mr. Reilly, and awarded him $3.5 million for his emotional distress. On a post-trial motion, Ridgewood asked the judge to throw out the entire verdict, but the court found no basis to do so.

Judge Reduces $3.5 Million Retaliation Verdict to $500,000.jpgRidgewood also asked the judge to reduce the amount of Mr. Reilly’s emotional damages award, claiming $3.5 million was so high it was a miscarriage of justice. The judge agreed, finding the award was so excessive that it was “shocking.” Although Mr. Reilly appealed, in Reilly v. Village of Ridgewood the Appellate Division affirmed.

As the trial court explained, in deciding whether to remit a jury verdict, a court is required to consider (1) the facts supporting the damages, (2) damage awards in similar cases, and (3) the judge’s “feel of the case,” to determine whether the damages were so “wide of the mark” to require a reduction.

With respect to the first factor, Mr. Reilly testified about the anxiety and depression he experienced but did not rely on any medical testimony. He explained he was a third generation firefighter whose career had been destroyed. He told the jury he no longer felt safe at his job because he could not trust his co-workers to back him up at a fire scene. He also indicated he was worried Ridgewood would fire him for any small error he might make.

With respect to the second factor, the judge reviewed numerous other employment law cases, and noted that none of them awarded close to $3.5 million for emotional distress. He discussed cases with emotional distress awards ranging between $125,000 and $1.5 million. He noted that the cases at the higher end of that range involved medical testimony regarding the employee’s pain and suffering, treatment for the emotional distress, physical symptoms, and/or other more serious manifestations of the emotional harm. He also noted that the cases at the lower end of the spectrum did not involve anything comparable to Mr. Reilly’s fear that his fellow firefighters would not back him up and that Ridgewood would fire him for any mistake he made.

With respect to the final factor, the judge described his observations about Mr. Reilly at the trial, including that he cried and showed emotion during his testimony, but seemed composed during the rest of the trial and did not otherwise demonstrate any behavior that suggested he was experiencing emotional distress.

When a judge concludes a jury’s verdict is so shocking that it must be reduced, he is required to replace it with “the highest figure that could be supported by the evidence.” After weighing all three factors, the trial judge determined that $500,000 was the highest award that could be supported by the evidence. Accordingly, he reduced Mr. Reilly’s emotional distress damages to $500,000, a very substantial award for an individual who did not have any medical testimony to support his emotional distress damages, but $3 million less than the jury had awarded.

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Last week, I discussed a case which Clarifies How to Prove Sexual Harassment Under New York City Law. The same case also demonstrates how broad the New York City Human Rights Law (NYCHRL)’s protection is for employees who object about unlawful discrimination or harassment at work. It is a particularly noteworthy employment law decision because it recognizes that a company can violate the NYCHRL if it fires an employee whose job performance is extremely poor if there is evidence the company did not make the decision to fire her until after she objected about sexual harassment.
Poorly Perfoming Employees and NYCHRL.jpgThe NYCHRL prohibits employers from retaliating against anyone who opposes unlawful discrimination or harassment. It has been interpreted to protect a wide range of opposition to discrimination and harassment, including something as simple as expressing the opinion that certain treatment by a supervisor was improper or wrong. It also has been interpreted to prevent a wide range of retaliatory actions. In addition to prohibiting severe forms of retaliation such as firing, demoting, or suspending an employee, it also prohibits any other form of reprisal that is likely to deter someone from objecting to illegal discrimination in the future.

In Mihalik v. Credit Agricole Cheuvreux North America, Inc., Renee Mihalik claims her company’s Chief Executive Officer, Ian Peacock, retaliated against her after she rejected his sexual advance in December 2007. In particular, she told him his behavior was “offensive and shameful.” She claims Mr. Peacock subsequently berated her in front of her coworkers by saying she adds “nothing of value” to the company, has “no f–ing clue” about what she is doing, and is “pretty much useless.” She also claims Mr. Peacock stopped sitting next to her at the trading desk, and told the staff not to invite her to meetings. The Second Circuit Court of Appeals concluded that a jury could find Mr. Peacock took these demeaning actions toward Ms. Mihalik in response to her objection to his sexual overtures, and his behavior reasonably could deter Ms. Mihalik and/or other employees from coming forward with complaints about discrimination in the future.

Ms. Mihalik further claims Mr. Peacock retaliated against her by firing her. During a meeting in April 2008, Mr. Peacock told Ms. Mihalik that things were not working out with her. She responded by asking what was not working out, “me and you or me at the company?” The Court ruled that a jury could believe her question was a reference to her previous rejection of Mr. Peacock’s sexual advances, and as a result could find his decision to fire her was retaliatory.

Notably, the court reached this conclusion even though there was proof that Ms. Mihalik’s job performance was extremely poor. However, there also was evidence that Mr. Peacock had never spoken to her about her job performance before this meeting, Mr. Peacock admitted he had not decided to fire Ms. Mihalik before the meeting, and there was evidence he decided to fire her only after he became angry about her objection to his inappropriate behavior. Alternatively, the court found that a jury could conclude that Mr. Peacock had more than one reason for firing Ms. Mihalik — her poor performance and her objection to his sexual advances. Either way, it ruled there is enough evidence to support Ms. Mihalik’s claim, and her case should proceed to a trial.

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Earlier this year, the United States Court of Appeals for the Second Circuit clarified how the New York City Human Rights Law (“NYCHRL”) applies to a sexual harassment claim. In the process, the court ruled that Renee Mihalik can proceed with her case against her former employer, Credit Agricole Cheuvreux North America, Inc.

New York City Human Rights Law and sexual harassment.jpgMs. Mihalik, a resident of Hoboken, New Jersey, worked for Cheuvreux in New York City. She claims she experienced sexual harassment from Cheuvreux’s Chief Executive Officer, Ian Peacock. More specifically, she alleged Mr. Peacock ran the office like a “boys’ club,” made sexually suggestive comments, and propositioned her for sex twice. Ms. Mihalik sued Cheuvreux for gender discrimination in violation of the NYCHLR.

Last year, the United States District Court for the Southern District of New York dismissed Ms. Mihalik’s case. It ruled there was not enough evidence to support a sexual harassment claim. But on appeal, the Second Circuit disagreed. It applied an earlier state court case which recognizes the NYCHRL is Broader than State and Federal Anti-Discrimination Laws, and reversed the decision. The NYCHRL was amended in 2005 to require it to be “construed liberally” to accomplish” its “uniquely broad and remedial purposes” regardless of what New York State and federal anti-discrimination laws say.

More specifically, under both federal and New York State law, to be legally actionable sexual harassment has to be severe or frequent. But that is not true under the NYCHLR. Rather, an employee only has to show she was treated “less well” than other employees because of her gender.

At the same time, the NYCHRL cannot be interpreted as a “general civility code,” and does not create a legal claim for every “overbearing or obnoxious boss” unless the boss’s conduct is at partially due to the employee’s gender (or another legally prohibited factor, such a race, age or disability). As a result, if an employee proves her employer treated her worse because of her gender, the company can avoid liability if it proves its conduct was merely “petty slights and trivial inconveniences.” In making this determination, a court has to consider all of the circumstances, including the context in which the alleged discriminatory conduct occurred. Depending on the situation, even a single discriminatory remark can be actionable under the NYCHRL.

Applying these standards, in Mihalik v. Credit Agricole Cheuvreux North America, Inc. the Second Circuit ruled that Ms. Mihalik’s must be sent back to the district court so she can have a trial. For example, it found there is evidence that men at Cheuvreux objectified women by looking at pornography, discussing trips to strip clubs, rating the appearance of female employees, and commenting about women’s bodies. It also found evidence that Mr. Peacock told Ms. Mihalik that men should be respected because they are “male” and “more powerful” than women. There also is evidence that Mr. Peacock sexually propositioned Ms. Mihalik twice. The court ruled that if a jury believes this evidence, it can conclude that Cheuvreux treated Ms. Mihalik worse because she is a woman, and the discriminatory mistreatment was more than petty slights or trivial inconveniences.

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The City of New York recently passed the Earned Sick Leave Act, a new law that will require employers in New York City to provide employees a minimum amount of sick leave per year. Specifically, employers will have to provide at least 1 hour of sick time for every 30 hours an employee works, with a maximum requirement of 40 hours of sick time to an employee each year. It only applies to employees, not independent contractors. It does not apply to professional employees, even if they are paid by the hour.

Initially, employers with more than 20 employees must pay employees during the required sick leave. Eventually, that requirement will apply to companies with at least 15 employees. Smaller employers will only be required to provide unpaid sick leave. Companies will be permitted to count paid time off, such as paid vacation, personal days or days of rest, toward the required paid sick time, and can count other paid or unpaid time off toward the required unpaid sick time.

Sick Leave Law in NYC.jpgNew York City employees will be entitled to use their sick leave time for their own mental or physical illness, injury, medical diagnosis, or preventive medical care; or to care for a family member who needs care or treatment for a mental or physical illness, injury or health condition, a medical diagnosis, or preventive medical care. The law defines family members to include the employee’s child, parent, spouse, domestic partner, or the child or parent of the employee’s spouse or domestic partner. Employees also will be able to use sick leave if their workplace or their child’s school or childcare provider is closed by a public official due to a public health emergency.

The new law indicates that employees can carry over sick time that they did not use in one year to the next, unless the company decides to pay them for their unused time. Companies are not obligated to let employees use more than 40 hours of sick time in a single year. But employers are not required to pay employees for their unused sick time, even when the company lays them off or fires them.

The Act includes an anti-retaliation provision which prohibits employers from threatening, disciplining, firing, demoting, suspending, reduction hours, or taking any other adverse employment action against any employee because he exercised (or attempted to exercise) his rights under the law. Importantly, it requires employees who want to bring a legal claim to file a complaint with the New York City Department of Consumer Affairs within 270 days after he knew or should have known about a violation. The law also includes provisions to protect the identity of individuals who bring claims under it, presumably out of concerns for workplace privacy.

The Earned Sick Leave Act will not begin to go into effect until April 1, 2014, at the earliest, and will be fully in effect by October 2016, at the latest. Once the law goes into effect, employees will begin to earn sick time. However, companies do not have to allow employees to use their sick time for 120 after it goes into effect. Similarly, companies do not have to permit employees to begin using this sick leave until 120 after they begin their job.

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Last week, I discussed a case in which New Jersey’s Appellate Division ruled a Jury Must Decide Whether Workers Are Employees or Independent Contractors Under New Jersey Law Against Discrimination. The same case also concludes that supervisors can be held personally liable under the New Jersey Law Against Discrimination (“LAD”) even if the supervisor was the only one who participated in the harassment or discrimination.

The LAD does not make supervisors or other individuals directly liable for engaging in prohibited discrimination or harassment. Instead, it makes it unlawful for anyone “to aid, abet, incite, compel or coerce” a violation of the LAD. As a result, courts have struggled with the question of whether a supervisor can be held personally liable for aiding and abetting harassment or discrimination if he was the only one who participated in it. Some courts have held there is no personal liability under those circumstances since the supervisor did not aiding or abetting anyone else. But, in Rowan v. Hartford Plaza LTD., LP, the Appellate Division ruled such a supervisor could be held personally liable for aiding and abetting the company’s violation of the LAD even if the only way the company violated the LAD was through the supervisor actions.

The New Jersey Supreme Court has previously recognized employees can be held liable for aiding and abetting a violation of the LAD if they engaged in “active and purposeful conduct.” That means the supervisor has to have been aware he engaged in an act prohibited by the LAD that harmed another employee, and in doing so knowingly and substantially assisted his employer in violating the LAD. In determining whether a supervisor did so, a judge or jury must consider: (1) the ways in which the supervisor participated in the harassment or discrimination, (2) the extent to which the supervisor assisted the harassment or discrimination, (3) whether the supervisor was present when the harassment or discrimination actually occurred, (4) the supervisor’s relationship to the other employees involved in the harassment or discrimination, and (5) the supervisor’s own motives and intentions.

In ruling that a supervisor can be held personally liable for aiding and abetting a violation of the LAD he committed by himself, the Appellate Division explained that supervisors have a unique role in shaping a work environment and are responsible for preventing and correcting unlawful harassment in the workplace. It also relied on the fact that previous cases have recognized supervisors can violate the LAD if they affirmatively assisted the harassment or discrimination, or if they acted with deliberately indifference toward it. The Court found it would not make sense if a supervisor could be held liable for failing to stop someone else from committing harassment or discrimination, but could not be held liable for personally committing the same harassment or discrimination.

It is important to note that Rowan is an unpublished opinion, meaning it is not legally binding on future trial courts. As a result, the question of whether and when a supervisor can be held personally for his or her own acts of unlawful harassment or discrimination remains an open question.

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New Jersey’s Appellate Division recently analyzed whether three individuals were employees or independent contractors for purposes of the New Jersey Law Against Discrimination (LAD). The Court ruled that since there is a factual dispute whether they were employees or independent contracts, the question has to be answered by a jury. The issue is important since the court also concluded the LAD only protects employees, but not independent contractors, from hostile work environment sexual harassment cases. As discussed in a previous article, Sexual Harassment of Independent Contractor Can Violate New Jersey Law Against Discrimination when it results in the contractor losing her job because the LAD prohibits companies from refusing to contract with someone based on their sex.

Employees or Independent Contractors Under New Jersey Law Against Discrimination.jpgThe case involved three women, Janet Rowan, Kathleen Lownes, and Nancy Heidler, who worked for a group of companies owned by the same two individuals, Joseph Samost and Iva Samost. They alleged Joseph Samost created a sexually hostile work environment for them in violation of the LAD. The trial judge concluded the three women were independent contractors rather than employees, and as a result dismissed their claims.

However, last month in Rowan v. Hartford Plaza LTD., LP, New Jersey’s Appellate Division reversed that decision. It explained there are twelve factors to consider when deciding if someone is an employee or an independent contractor under the LAD. It found three of those factors, the employer’s right to control the worker’s performance, whether the work is supervised or unsupervised, and the level of skill required for the work, supported finding the women were employees since Joseph Samost supervised their work, and their jobs primarily involved unskilled clerical and office work such as filing faxing, copying, and making telephone calls. Similarly, it found another factor, whether the work is an integral part of the business of the company, was supported by the fact that the type of work they performed is necessary to any business. It also noted the fact that they were allowed to work from home did not suggest they were independent contractors since it is common for employees to work from home.

The appellate court found two additional factors, the length of time the individual has worked for the company and the way the work relationship ended, could support finding the women were employees since two of them were told they were fired due to a “restructuring” of the office rather than because of the completion of a particular job assignment. Similarly, it found two other factors, the method of payment and whether the company paid social security taxes were neutral, since the company paid the women “off the books” without issuing a W2 (which would have suggested they are employees) or a 1099 (which would have suggested they were independent contractors). Finally, the Court was unable to determine which position was supported by the last factor, the intent of the parties, since each side gave self-serving testimony in that regard.

As a result, the Appellate Division concluded that a jury has to decide whether the women were employees who are protected from hostile work environment sexual harassment, or independent contractors who are not.

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Earlier this month the New Jersey Appellate Division permitted an employee to continue with his sexual orientation discrimination claim against his former employer, finding there is enough evidence to support his claim.

Ronald Savoie, who happens to be gay, had a distinguished career as a teacher at The Lawrenceville School for more than two decades. He lived in a house owned by the school with his partner, Richard Bierman. In 2002, eight school buildings and grounds employees entered Mr. Savoie’s basement to repair a broken water main outside his house. In the basement, they saw some sort of sexual apparatus hanging from chains on the ceiling. Some of the employees also described seeing other items in the basement including a computer, a tripod without a camera, and videotapes.

A year later, when the school was replacing the condensing units and water heaters in the houses on Mr. Savoie’s street, several of the employees who had been in his basement the year before indicated they were uncomfortable returning to his house. When they described to their supervisor what they had seen in Mr. Savoie’s basement the year before, they listed additional items including a video camera, a television, a bed with mirrors, latex gloves, and diapers. Their boss repeated this information to the school’s Dean of Faculty, its Associate Head Master, and its Chief Financial Officer (CFO).

School Subject of Discrimination Lawsuit.jpgThe Dean then met with Mr. Savoie, gave him a pre-written resignation letter, and told him he would be fired unless he agreed to resign. According to Mr. Savoie, the Dean accused him of transmitting sexually explicit images over the Internet, and indicated he could not trust him with students as a result. Although Mr. Savoie signed the resignation letter, he attempted to rescind it the next day. The school rejected his attempt to withdraw his resignation.

Mr. Savoie then sued the school and several of its employees, claiming they fired him because of his sexual orientation, in violation of the New Jersey Law Against Discrimination (LAD). In response, the school claimed it asked Ms. Savoie to resign because it believed he was sending sexually explicit pictures of activities taking place in his basement over the Internet, in violation of the school’s standards of personal and professional behavior, which it claims jeopardized its reputation. The trial court eventually dismissed Mr. Savoie’s case, concluding that even if he did not actually send sexually explicit materials over the Internet, the school reasonably believed he had done so and legitimately fired him as a result.

However, in Savoie v. Lawrenceville School, the Appellate Division reversed. It ruled that although a jury could reach the same conclusion as the trial judge, it also could determine that the school would not have reacted the same way if Mr. Savoie was heterosexual. The appellate court relied on the fact that (1) the school relied on the secondhand information from the supervisor of the employees who were in Mr. Savoie’s basement instead of conducting a proper investigation; (2) Mr. Savoie disputes the school’s claim that he admitted sending sexually explicit images over the Internet; (3) the school’s Associate Head Master made a disparaging comment about Bierman’s lifestyle, thereby implicitly criticizing Mr. Savoie’s lifestyle; and (4) the school looked the other way when a high ranking administrator resumed an adulterous affair even after he had been warned the affair violated the school’s policy regarding personal and professional behavior and was grounds for termination. Accordingly, the Appellate Division sent Mr. Savoie’s case back to the trial court for a trial.

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Last month, the United States Supreme Court dismissed an overtime case filed by an employee, Laura Symczyk, against her former employer, Genesis Healthcare Corporation. Ms. Symczyk filed the case as a collective action on behalf of herself and other similarly situated employees who were not paid for all of the hours they worked. Specifically, she claims Genesis deducted 30 minutes of pay per day for a meal break, even when they worked during their break. She asserted the company’s policy violates the Fair Labor Standards Act of 1938 (“FLSA”). The FLSA is a federal law that set the federal minimum wage and guarantees overtime pay to non-exempt employees. The FLSA permits employees to sue on behalf of similarly situated employees in what is called a “collective action.”

Supreme Court ruling overtime case and collective action.jpgWhen Ms. Symczyk filed her lawsuit, Genesis made her a formal settlement offer, called an offer of judgment, in the amount of $7,500 plus all of her attorneys’ fees and costs. Ms. Symczyk admits the $7,500 would have full compensated her for all of her own damages. However, she did not respond to the offer because she wanted to continue with her case on behalf of her coworkers, and as a result never received the $7,500. But since the offer would have paid Ms. Symczyk everything she was seeking for herself in the lawsuit, and none of her coworkers had joined the case, the trial court no longer considered her to have a personal stake in the outcome of the case. In other words, it deemed her case to be moot.

On that basis, Genesis sought to have the case dismissed. In response, Ms. Symczyk argued the company was improperly trying to end the case before the collective-action portion of the case even could begin.

The District Court dismissed the case. It ruled the $7,500 offer of judgment fully satisfied Ms. Symczyk’s claim, and a collective action cannot proceed unless there is at least one person who has joined the case whose claim against the company is not moot. The Third Circuit Court of Appeals reversed, finding that even though Ms. Symczyk’s claim was moot, it was improper for the company to try to “pick off” the named plaintiff to defeat the collective action. Genesis appealed the ruling to the United States Supreme Court. However, Ms. Symczyk did not cross-appeal the Third Circuit’s finding that her personal claim was moot.

In its opinion in Genesis Healthcare Corp. v. Symczyk, the Supreme Court ruled that since Ms. Symczyk did not cross-appeal the finding that her case was moot, it was bound by that conclusion whether or not it is correct. It then ruled that since her case is moot, she cannot proceed with the collective action on behalf of her coworkers. However, since the Court did not indicate whether Ms. Symczyk’s case really was moot, and merely assumed it because she did not cross-appeal that ruling, it did not indicate whether the same tactic of offering full damages to each named plaintiff would work in future cases. As a result, it remains unclear whether employees who bring collective actions and are offered settlements that would satisfy their own claims have the right to reject the offer and continue to proceed with the collective action.

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