Archive for January, 2011

SCOTUS Dramatically Expands Who Can Sue for Retaliation

“Until 2003, both petitioner Eric Thompson and his fiancée, Miriam Regalado, were employees of respondent North American Stainless (NAS). In February 2003, the Equal Employment Opportunity Commission (EEOC)notified NAS that Regalado had filed a charge alleging sex discrimination. Three weeks later, NAS fired Thompson.”

And with that introduction, Justice Scalia, writing for a unanimous Court (Justice Kagen did not participate) dramatically expanded the rights of employees to sue their employers for retaliation under Title VII of the Civil Rights Act of 1964.

The Court framed two questions if felt it needed to answer:  “First, did NAS’s firing of Thompson constitute unlawful retaliation? And second, if it did, does Title VII grant Thompson a cause of action?”

The Court had little trouble answering the first question in favor of employees.  Viewing Thompson’s allegations as true (which the Court must do for purposes of the appeal), the Court noted “ . . . Title VII’s antiretaliation provision prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.””  The Court then went on to hold that a reasonable worker could very well be dissuaded from filing a charge of discrimination if he or she knew that the consequence of doing so was having one’s fiancee terminated.  The Court was unmoved by the potential confusion that such a rule might cause for employers.  Instead, the Court stated:

“Although we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VII. As explained above, we adopted a broad standard in Burlington because Title VII’s antiretaliation provision is worded broadly. We think there is no textual basis for making an exception to it for third-party reprisals, and a preference for clear rules cannot justify departing from statutory text.”

Moving to the second question—which the Court felt that it was a more difficult question—the Court analyzed whether Thompson, or any plaintiff in his situation had “standing” to sue his or her employer under Title VII.  Standing is a legal concept that requires a party who wishes to sue to demonstrate that they have sufficient connections to the cause of action to support their participation in the suit.  After a fairly lengthy discussion of the legal principles involve (that I won’t bore you with here), the Court determined that Thompson did have standing to sue and adopted a so called “zone of interest” test.

“Applying that test here, we conclude that Thompson falls within the zone of interests protected by Title VII. Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation—collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII. He is a person aggrieved with standing to sue.”

Although Thompson, as Regalado’s fiancé, was well within the “zone of interest,” the difficult question for employers is just how far the “zone of interest” extends?  Does it include friends of the complaining employee?  What if the employer does not know of the alleged connection between the employee who complained and the employee who was disciplined or fired – how will it prove that?  These questions will surely be the stuff of future litigation.

If you have any questions about how this expanded definition of retaliation might effect how you make decisions regarding your employees feel free to give me a call.

Organized Labor Still Has Friends in D.C.

A couple of years ago at this time of year every labor lawyer you know, including me, was running around like Chicken Little screaming about how the sky was falling. After all, we had a Democratic President, the House of Representatives had a significant Democratic majority and the Senate had a filibuster proof majority of Democrats. Top that off with a healthy dose of organized labor support for the new president and his party and we thought we were right to panic. At least I thought I was right when I said that with the changes in government we had the most labor friendly government in Washington since the New Deal. Of course, with health care and all taking up so much time very little in the way of new labor legislation was actually passed.  But you have to cut me a little slack. After all, the president made his support of unions a cornerstone of his campaign and the very first bill signed into law by the new administration was the employee friendly Lilly Ledbetter Fair Pay Act. So we spend a lot of time talking about things like the Employee Free Choice Act. In fact, my very first post on this blog was about the EFCA.

But none of it happened.

What have I learned from all this? Mostly to relax and see what happens before I start screaming the odds. As I’ve already told you I am not making predictions this year. I’m just going to give you the facts. And the facts are these: the administration has not given up on supporting unionization of the private sector. (Don’t believe me? Take a look at this.)

Friday the Secretary of Labor, Hilda Solis, issued a statement regarding the Bureau of Labor Statistics report on union membership for 2010. The report did not paint a rosy picture for organized labor. I was going to put a link into the statement, but since it is short, I’m going to include the whole thing:

Statement by Secretary of Labor Hilda L. Solis on Bureau of Labor Statistics report on union members in 2010

WASHINGTON –Secretary of Labor Hilda L. Solis issued the following statement regarding the Bureau of Labor Statistics’ annual “Union Members – 2010” report released today:

“Today, the Bureau of Labor Statistics announced that, in 2010, the unionization rate of employed wage and salary workers was 11.9 percent, down from 12.3 percent in 2009. Among private sector employees, the rate dropped to 6.9 percent from 7.2 percent in 2009.”

“The data also show the median usual weekly earnings of full-time wage and salary union members were $917 per week, compared to $717 for workers not represented by unions. For Latinos, the wage disparity is even greater with union members earning an average of $771 compared to $512 for workers not represented by unions, a difference of 33.6 percent.”

“When coupled with existing data showing that union members have access to better health care, retirement and leave benefits, today’s numbers make it clear that union jobs are not only good jobs, they are central to restoring our middle class.”

“As workers across the country continue to face lower wages and difficulty finding work due to the recent recession, these numbers demonstrate the pressing need to provide workers with a voice in the workplace and protect their right to organize and bargain collectively.”


I think that about says it all doesn’t it?  Unionization is down, and the administration blames the damage to the middle class, at least in part on the low level of unionization. It is pretty clear that the administration, from the Department of Labor to the NLRB, to the President himself,  is going to do whatever it can to make it easier for unions to organize your workforce. So, if you are trying to decide where your HR priorities should be, at least for the start of 2011, might I suggest some supervisor training. You need to make certain that your supervisors know how to deal with questions about unionization and what it means when they come up. You might think you know, but there are already some pretty sever restrictions on what your supervisors can and cannot say when faced with a potential organizing drive. And the answers are not always intuitive. So, if you have questions, give me a call. I can help.

Let’s Start “Regarding” People for a Change.

So it’s a new year — 2011 and all that, and yes I know that we are already 20 days into the new year and yes I know this is my first post, but we have been making some changes here at good old WNJ.

The first one you might have noticed is we changed the name of the blog.  Yep, no more NegotiumLex!  Now, we are Michigan Employment Law.  How come?  Well let me tell you how come:  It took me some time to face up to it but NegotiumLex is a stupid name.  I didn’t think it was when I started all this, I thought it was kind of cool.  Latin and all that!  Of course no one speaks Latin and no one reads Latin and so no one found the blog.  So, we are going to go with something a bit more, shall we say descriptive?  That means that if you are one of the three people who has us bookmarked as one of your favorites, change your bookmark.  Now you can find us at

Now what else can we change?  I have an idea, how about our goals.  I was reading through some twitter feeds this morning, (yep, you can find me on twitter too @ZoEmploymentLaw, and yes again, a new twitter name, seeing a pattern here are we?) and I came across an article at CNNMoney announcing the Fortune 100 Best Companies to Work For.  You can find the post at

Number 1 on the list (drum roll please) . . .   SAS.  Not only is SAS (a software company headquartered in North Carolina) #1 but it has been on the list for 14 years.  This is not a “mega” company with tens of thousands of employees and tens of billions of dollars.  In fact, the post classifies SAS as a midsize company with about $2 billion in revenue in 2009 and about 5,600 employees.  So what are they doing right?  Why are their people so happy?

Well, they do have some great benefits.  In fact, the post claims “Its perks are epic: on-site healthcare, high quality childcare at $410 per month, summer camp for kids, car cleaning, a beauty salon, and more — it’s all enough to make a state-of-the-art, 66,000-square-foot gym seem like nothing special by comparison.”  But that is not what jumped out at me.

What jumped off of the screen when I read the short post was how one manager at SAS described the working experience.  According to CNN this manager, who is not named, said people were happy because:  “. . . they feel regarded — seen, attended to and cared for. I have stayed for that reason, and love what I do for that reason.” (I added the emphasis).  Now how cool is that?  Look, your company probably can’t add a great big gym or afford to have on site childcare or a beauty salon, but you can treat people better.  Not only should this be easy for us to do, but it can’t cost that much money.  By the way, I am not saying that you don’t already treat your people well.  But do you treat them so well that they actually notice?  Do they feel so engaged so “regarded” as the SAS manager put it that they love what they do?

So, managers, HR people, you want a goal for this year that you can put in writing and give to your boss.  One that won’t cost anything but should make a positive impact on the bottom line?  How about making sure that all of your employees feel “regarded”?  Work at making them feel like you see them and care for them.  And when the profits start rolling in, maybe you can put a gym in too.  And that can’t be all bad.