Rationing Retaliation Claims

According to the U.S. Supreme Court, the rising number of workplace retaliation claims is a problem, one warranting more stringent requirements for employees to successfully bring claims. The Court’s principal justification for this restrictive approach is a fear of “opening the floodgates” of litigation. This Article critically assesses the Court’s fear of opening the floodgates of retaliation claims, evaluates the Court’s evidence, and argues that such concerns are overstated and misplaced. Rather than a cause for concern, the rise in retaliation claims reflects rising intra-organizational conflict. Social scientists have demonstrated that, as the American workforce becomes more diverse, intra-organizational conflict increases, and the propensity for civil rights violations grows. In other words, claims are on the rise because retaliation is on the rise. Employment discrimination and other related statutes are aimed at mitigating the harms of this expected rise in intra-organizational conflict. The Article further argues that considerations of judicial economy are particularly misplaced in workplace retaliation cases. Retaliation protections are crucial to the private enforcement scheme Congress developed for civil rights laws generally and employment discrimination laws in particular. Attempting to limit judicial caseloads through restrictive interpretations of anti-retaliation laws eviscerates private enforcement, producing under- enforcement of these core civil rights protections. To remedy the Supreme Court’s wrong turn on retaliation, Congress should act. This Article proposes that Congress adopt a rule of construction mandating broad interpretation of all workplace anti-retaliation statutory provisions. This provision would strengthen critical civil rights safeguards for employees by restoring the optimal and essential function of retaliation provisions

Integrating Interference Theory

Robust retaliation protections are an essential component of any effective enforcement regime. Recognizing this, Congress has included a provision prohibiting retaliation in nearly every workplace statute passed in the past century. In statutes more than a century old, like the Civil Rights Act of 1866, where Congress neglected to include an explicit anti-retaliation provision in the statutory language, the Supreme Court has found an implied proscription against retributory behavior. Anti-retaliation protections are undoubtedly integral to effective enforcement. However, they have an equally important counterpart that is often overlooked in compliance discussions-interference protections. Several workplace statutes contain interference provisions-statutory language that makes it unlawful for employers to interfere with the substantive rights created by the statute. However, interference clauses are much less common than retaliation clauses. Compared to retaliation clauses, interference clauses appear to be a stronger mechanism for enforcing the regulatory scheme Congress has created for labor and employment laws. They enjoy broader judicial interpretation and have an analytical framework that makes it easier for employees to successfully prove employer misconduct given the information asymmetries that exist between companies and their employees. This Article explores the origins of interference theory and investigates the presence of interference clauses in some statutes and their absence in others. It argues that, like they have interpreted retaliation proscriptions, the courts should interpret workplace statutes as containing implied interference prohibitions, as protections against interference with workplace rights is an essential component of compliance with any regulatory intervention. The Article further argues that Congress can broaden protections for employees, strengthen enforcement, and better support the goal of the statutory regimes by expressly including interference clauses in all workplace statutes

Enduring Exclusion

Economic justice has long been a part of the civil rights agenda, and minimum labor standards statutes play a crucial role in eradicating the exploitation and subordination of historically marginalized workers. While statutes establishing labor standards are characterized as “universal,” their effect has been anything but universal. Racial and ethnic minorities, women, and those at the intersection experience disproportionate violations of labor standards laws concerning minimum wage, overtime, and occupational safety and health. Through legislative maneuvering dating back to the New Deal era, Congress carved out many female workers and workers of color from core protections of minimum labor standards legislation. Due to the vigorous advocacy of civil rights groups, amendments to these statutes expanded coverage, making these statutes more inclusive of marginalized workers. Nevertheless, the exclusionary legacy of these New Deal era-laws lingers today. Black, Latinx, and female workers are more likely to be retaliated against for asserting rights or reporting employer misconduct pursuant to these statutes. Tracing the racial and gendered origins of exemptions to labor standards statutes from the early twentieth century to the present, this Article argues that, despite expanded coverage, female workers and workers of color remain largely excluded from “universal” workplace protections. Although antiworker forces previously sought to thwart creation of legal rights for marginalized workers, contemporary antiworker campaigns seek to gut marginalized workers’ protections through actual and threatened retaliation. Examination of the traditional rationales for employer retaliation reveals that the retaliation disparity is incongruent with these conventional motivations. This Article argues that securing compliance with both minimum labor standards and antiretaliation reform should be integral parts of the civil rights agenda

Enforcing Equity

Federal administrative agencies that enforce workplace laws have dual responsibilities: (1) to prevent or remedy noncompliance with the underlying workplace law and (2) to prevent or remedy noncompliance with the law’s antiretaliation provisions. Disparities based on race, sex, and their intersection exist with respect to both of these types of employer noncompliance, as female workers and workers of color experience more violations of the substantive provisions and the retaliation provisions of these laws. While effective enforcement is vital to preserving workplace regulation as a whole, there is also an equity component to enforcement. Because workplace law violations disproportionately harm women and people of color, ineffective enforcement by administrative agencies disproportionately harms these groups. Retaliatory conduct by employers is an impediment to the enforcement of workplace laws that administrative agencies are charged with enforcing. Antiretaliation provisions in workplace statutes are crucial enforcement tools for these agencies, but—where these laws were once broadly construed— their construction is narrowing. Restrictive interpretations of workplace laws can make obtaining redress more difficult for victims of retaliation and can deter other employees from reporting employer misconduct. Moreover, Black workers and female workers experience retaliation in the workplace at a much higher rate than other workers. Consequently, retaliatory conduct by employers is not only an impediment to effective enforcement of workplace laws, but the conduct itself can implicate racial discrimination, exploitation, and subordination. These agencies find themselves facing a dilemma with respect to the other branches of government. The judiciary is issuing restrictive interpretations of antiretaliation laws and affording no deference to agency interpretation. Congress is slow in legislatively correcting the courts’ limiting interpretations. Because retaliation protections are so vital to the regulatory scheme Congress developed, narrow interpretation by the courts causes underenforcement and stifles the ability of administrative agencies charged with enforcing workplace laws to fulfill their missions. This Article examines the challenges administrative agencies face in providing robust protections against retaliation, given the current postures of the legislative and judicial branches of government. The Article proposes a shift in administrative agencies’ predominant enforcement model—from an individual-complaint-based model to a compliance-audit-based model—and data collection that will incentivize employers to comply with nonretaliation mandates, leading to stronger antiretaliation safeguards

Rationing Retaliation Claims

According to the U.S. Supreme Court, the rising number of workplace retaliation claims is a problem, one warranting more stringent requirements for employees to successfully bring claims. The Court’s principal justification for this restrictive approach is a fear of “opening the floodgates” of litigation. This Article critically assesses the Court’s fear of opening the floodgates of retaliation claims, evaluates the Court’s evidence, and argues that such concerns are overstated and misplaced. Rather than a cause for concern, the rise in retaliation claims reflects rising intra-organizational conflict. Social scientists have demonstrated that, as the American workforce becomes more diverse, intra-organizational conflict increases, and the propensity for civil rights violations grows. In other words, claims are on the rise because retaliation is on the rise. Employment discrimination and other related statutes are aimed at mitigating the harms of this expected rise in intra-organizational conflict. The Article further argues that considerations of judicial economy are particularly misplaced in workplace retaliation cases. Retaliation protections are crucial to the private enforcement scheme Congress developed for civil rights laws generally and employment discrimination laws in particular. Attempting to limit judicial caseloads through restrictive interpretations of anti-retaliation laws eviscerates private enforcement, producing under- enforcement of these core civil rights protections. To remedy the Supreme Court’s wrong turn on retaliation, Congress should act. This Article proposes that Congress adopt a rule of construction mandating broad interpretation of all workplace anti-retaliation statutory provisions. This provision would strengthen critical civil rights safeguards for employees by restoring the optimal and essential function of retaliation provisions

Protecting Protected Activity

The United States Supreme Court recently rolled back protections in employment retaliation cases by requiring plaintiffs to prove that their protected activity was the but-for cause of adverse actions by their employers. As a result, employers may escape liability even though the employee-plaintiffs have proven that employers had an impermissible motive in taking adverse actions. In doing so, the Court undermined the underlying statutes’ retaliation provisions created to help enforce the underlying statute, leading to a court-instituted failure to protect activity that Congress sought to protect. While legal scholars have paid much attention to the establishment of a but-for causation requirement in retaliation claims brought under employment discrimination statutes, they have paid less attention to other workplace statutes. This Article focuses on the transference of a but-for causation requirement to cases involving retaliation under minimum labor standards statutes. The Article critiques judicial application of the but-for causation standard by explaining the inconsistent outcomes that may result for similarly situated plaintiffs, by critiquing the judiciary’s reliance on a purely private law, negligence-based model rather than appreciating the role of minimum labor standards statutes as public law, and by demonstrating how application of traditional canons of statutory interpretation support a causation standard lower than but-for causation. To remedy these problems, the Article suggests that courts should allow the common law tort of wrongful discharge in violation of public policy—a tort that addresses the intersection of public law and private law—to inform its interpretation of employment retaliation statutes generally and minimum labor standards legislation in particular

Comment Re: Non-Compete Clause Rulemaking, Matter No. P201200

Within signed law professors and law students submitted this letter to the Federal Trade Commission, writing in their individual capacities, not as agents of their affiliated institutions, in support of the Federal Trade Commission’s proposed rule to ban most non-compete clauses (the “Proposal”) as an unfair method of competition. This letter offers comments in response to areas where the FTC has requested public comment. To make our views clear, this letter contains the following sections: I. Summary of the Proposal; II. The Commission Should Consider Expanding Its Definition of Non-Compete Clauses to Prevent Employers from Requiring Workers to Quit Before Seeking Alternative Employment; III. Non-Compete Clauses Are Unfair Methods of Competition; IV. Non-Compete Clauses Negatively Impact Workers and Their Families; V. The Proposed Rule Protects Small Businesses and Entrepreneurs; and VI. The Commission Should Consider a Factor Test for Its Unfairness Analysis for Senior Executive

Enforcing Equity

Federal administrative agencies that enforce workplace laws have dual responsibilities: (1) to prevent or remedy noncompliance with the underlying workplace law and (2) to prevent or remedy noncompliance with the law’s antiretaliation provisions. Disparities based on race, sex, and their intersection exist with respect to both of these types of employer noncompliance, as female workers and workers of color experience more violations of the substantive provisions and the retaliation provisions of these laws. While effective enforcement is vital to preserving workplace regulation as a whole, there is also an equity component to enforcement. Because workplace law violations disproportionately harm women and people of color, ineffective enforcement by administrative agencies disproportionately harms these groups. Retaliatory conduct by employers is an impediment to the enforcement of workplace laws that administrative agencies are charged with enforcing. Antiretaliation provisions in workplace statutes are crucial enforcement tools for these agencies, but—where these laws were once broadly construed— their construction is narrowing. Restrictive interpretations of workplace laws can make obtaining redress more difficult for victims of retaliation and can deter other employees from reporting employer misconduct. Moreover, Black workers and female workers experience retaliation in the workplace at a much higher rate than other workers. Consequently, retaliatory conduct by employers is not only an impediment to effective enforcement of workplace laws, but the conduct itself can implicate racial discrimination, exploitation, and subordination. These agencies find themselves facing a dilemma with respect to the other branches of government. The judiciary is issuing restrictive interpretations of antiretaliation laws and affording no deference to agency interpretation. Congress is slow in legislatively correcting the courts’ limiting interpretations. Because retaliation protections are so vital to the regulatory scheme Congress developed, narrow interpretation by the courts causes underenforcement and stifles the ability of administrative agencies charged with enforcing workplace laws to fulfill their missions. This Article examines the challenges administrative agencies face in providing robust protections against retaliation, given the current postures of the legislative and judicial branches of government. The Article proposes a shift in administrative agencies’ predominant enforcement model—from an individual-complaint-based model to a compliance-audit-based model—and data collection that will incentivize employers to comply with nonretaliation mandates, leading to stronger antiretaliation safeguards