2015 Employment Law Issues Tournament: The Championship
Sixty-four employment law issues have become just two after an exciting Final Four. While Wisconsin and Duke played each other in the NCAA championship, the Wage and Hour Collective Actions and the Retaliation Claims faced off in the ELIT championship. Which one were you watching? (Don’t answer that.) Hosted this year in the Fifth Circuit down in the Big Easy, home to some of the most memorable championship games in history (North Carolina over both Georgetown (1982, MJ’s shot) and Michigan (1993, CWebb’s TO), Indiana over Syracuse (1987, Smart’s Baseline Jumper), Syracuse over Kansas (2003, Warrick’s Block), and of course Race Discrimination over Exemption Misclassification (2006, Pretext’s half-court game-winning buzzer beater)), this year’s ELIT championship game was just like the tournament generally – everything we hoped it would be and more.
And believe it or not, we finally received positive feedback about our tournament coverage. Linda, the Head of HR at SoulReCycle, which provides customers with the privilege of paying $30 a class to furiously return soda cans to local supermarket recycling machines while an environmental education instructor blasts Top-40 hits and screams at you for seemingly no reason, left us a voicemail stating: “I don’t care what anyone says, and I don’t care that I have no idea what you are talking about; this is so great, I’m just so proud of you and I can’t wait to tell my friends all about it tonight at our canasta game.”
Okay, so that voicemail may have been from one unnamed contributor’s mother-in-law – but honestly, we are proud of ourselves too. We had a lot of fun running this tournament over the law few weeks and we hope that our (real) readers did too. Seriously, you haven’t lived until you’ve watched two grown employment lawyers intensely debate who would win a game between the Social Media Policies and a Hostile Work Environment if those two issues were actually real basketball teams playing in an actual real basketball game. And the debate was no less healthy when it came to our championship matchup between Wage & Hour Collective Actions and Retaliation Claims. So, without further ado, here is that recap (followed by an important message from our sponsors and an unforgettable rendition of One Shining Moment Lawsuit).
THE CHAMPIONSHIP: Wage & Hour Collective Actions (1) v. Retaliation Claims (2)
The Wage and Hour Collective Actions head into the championship riding high. Coming off a statement victory over the Non-Competes, they have now focused their sights on Team Retaliation Claims. And it’s not just that this team is loaded with talent. It’s that they have been through so much together – subject to the same grueling practice schedule and workouts, rode on the same long bus and airplane rides to away games, followed all the same rules set forth in the NCAA’s 434 page manual, and so on – some might even say that they are as similarly situated as players can get, and if that’s the case, it spells trouble for the opposing team since we all know what would be on the horizon: conditional certification. (Or is it preliminary certification or notice authorization or whatever it’s being called these days. At some point, can’t we all just agree on one term here?). And the W&HCAs do all the little things right too. For example, coming off a screen properly can mean the difference between a well-executed or broken play, and doing enough of those little things correctly can mean the difference between victory and defeat. The story is no different in the employment world – tracking every hour of time correctly can mean the difference between complying with the law and a wage and hour violation, and consistently enforced timekeeping practices can mean the difference between properly paid employees and a multi-million dollar lawsuit. For Retaliation Claims to win, they’ll have to throw everything they have at the Wage & Hour Collective Actions: among other things, collective action waivers, offers of judgment, citations to Wal-Mart and Comcast, objections to the opt-in notice, and a top-notch expert witness report. No doubt an uphill climb when you’re facing an issue as important as Wage & Hour Collective Actions.
Team Retaliation Claims marches into the finals for an epic showdown against its long-time rival, the favored and #1 overall seed Wage & Hour Collective Actions. (Sadly, Barles Charkley, stuck In-The-Annapolis, will miss tip-off.) The W&HCAs smoked the Retaliators in their pre-season NIT matchup where they piled on with liquidated damages. It seems possible, given their team name, that the Retaliators are seeking to exact revenge on the big stage of the finals, and we have no doubt they may since they haven’t lost a game in months. Team Retaliation Claims is at the height of its popularity, as reflected not only in the court(house) data (according to the latest EEOC data, 42.8% of charges filed with the EEOC in 2014 alleged retaliation, the highest percentage ever), but also in merchandising (sales of Retaliator foam fingers have reportedly spiked to record levels, although the EEOC refuses to provide actual revenue data), in the press (heard of Ellen Pao?), and in the stands (Taylor Swift has jumped off her short-lived ride on the New York Knicks bandwagon (can you blame her?) to become the Retaliators unofficial mascot/#1 fan (a la Ashley Judd at Kentucky games)). So while a grudge match of this magnitude cannot be predicted with any precision, we can count on a few things—all involving Team Retaliation Claims’ sensational, yet volatile, star player Monte (don’t call me Montrezl) Cristo: (1) Monte will engage in at least one protected activity (usually a goaltending call); (2) Monte will make at least one good faith complaint to the referees (which hopefully won’t get lost in the shuffle of his bad faith quibbles with the officiating); and (3) Monte will suffer an adverse action (quite possibly an ejection following a flagrant foul). Whether that will be enough to prevail in this championship matchup is another story, however.
This one was an instant classic. In the first half, Team Retaliation Claims complained about everything to the refs, but unlike the refs in last night’s NCAA game, these referees were not the whistleblowers the Retaliators hoped they’d be: Collective Action waivers (ruled unenforceable), offers of judgment (did not render the issue moot), citations to Wal-Mart and Comcast (found inapplicable), objections to the opt-in notice (disregarded), a top-notch expert witness report (deemed inadmissible). Nothing was working. So what was Team Retaliation Claims to do? And that’s when they turned to the aforementioned All-American M. Cristo in the second half. Cristo, as promised, made his prima facie case for a victory. He anchored a stifling affirmative defense, argued/ran the motion offense brilliantly, had a jaw dropping cross(over) examination, ran the pick(off plaintiffs) and roll efficiently, and (cue up your Marv Albert voice) had a number of (prima) facials on the opposing players. But in the end, it was still not enough. The Wage & Hour Collective Actions successfully ran two offensive sets that led them to a narrow victory. First, they demonstrated that Cristo’s consistent poor attitude and performance issues were the real reasons for his termination rather than because of his complaints. Second, they relied on the fact that in-house counsel generally cite the threat of wage and hour litigation as the single biggest issue that keeps them up at night. Those two sets were just too much for the Retaliators to handle. As the clock expired, the Wage & Hour Collective Actions stormed the court(room). Moments later they would cut down the nets and celebrate their undefeated season showered in a hail of confetti of ripped up summary judgment papers.
So there you have it: The Wage & Collective Actions are 2015’s most important employment law issue. Of course though, as we told our readers at the beginning of this tournament, there are many employment law issues facing employers and each issue is important in its own way to each employer. And thus, we encourage you to devote the resources necessary to identify and address those issues that are important to you so that you can reduce and even eliminate your exposure to employment claims and government audits. If you do so, it should also result in a stronger workforce, one that comes ready to work hard each day for a company that sets its expectations properly, and it should lower employment-related compliance costs, certainly in the long term.