Home -> Law Blog Directory -> Labor & Employment Law Blogs -> Jottings By An Employer's Lawyer

Labor & Employment Law

: Jottings By An Employer's Lawyer

Another Retaliation Case in the Supreme Court: Deja Vu All Over Again?

By Michael W. Fox, Esq.

According to Paul Secunda at Workplace Prof Blog, a number of bloggers have already commented on today's granting of certiorari Supreme Court Grants Cert in Saint Gobain FLSA Case.

Paul says he has no idea how the case will come out. The issue is whether as the 7th Circuit says, only written complaints, not oral ones, qualify as protected activity under the FLSA. I think Paul may just being nice.

Consider the following posts on how retaliation has fared in the Supreme Court since the birth of this blog in July 2002.

• Supreme Court Unaminous in Retaliation Case, Crawford v. Metropolitan Government of Nashville (S.Ct. 1/26/09).
•  Supreme Court Scoreboard: Retaliation 2, Employers 0, CBOCS West, Inc. v. Humphrey (S.Ct. 5/27/08) and Gomez v. Potter (S.Ct. 5/27/08).
• Supreme Court Answers the Question: What Is An Adverse Employment Action? , Burlington Northern Railway v. White (S.Ct. 6/22/06)
• Whistleblowing in the Supreme Court, A Good Day,  Jackson v. Birmingham Board of Education (U.S. 3/29/05).

Based on that track record, and the fact that there was a vigorous dissent by 3 judges in the 7th Circuit (including Supreme Court short lister, Judge Diane Wood) to the court's refusal to hear the case en banc, I am not optimistic that the 7th Circuit's holding that only written complaints constitute protected activity will stand.

That's the view of another Paul,  Paul Mollica, at Daily Developments in EEO Law.

If the Court follows its own in lead in its unanimous decision from last term, Crawford v. Metropolitan Government of Nashville, 129 S. Ct. 846 (2009), it will give the statute a common-sense construction that safeguards employees' rights to inquire or complaint about wage-and-hour violations. A decision affirming the Seventh Circuit's construction, though seemingly unlikely, would reverberate in all federal-law retaliation cases.

But left out of the Supreme Court record above is Justice Thomas' decision in Graham County Soil & Water Conservation District v. United States ex. rel. Wilson (U.S. 6/20/05) (see No Federal Statute of Limitations for Retaliation Claims Brought Under Qui Tam Act.)  That just happened to be a case that turned on statutory construction.

And the rest of Professor Secunda's sentence refusing to predict the outcome finishes, "but the decision may be an interesting example of how different Justices engage in the exercise of statutory construction."

So the decision may be more up in the air than I would initially think.

But I doubt it.

 

Full post as published by Jottings By An Employer's Lawyer on March 22, 2010 (boomark / email).