Wage & hour suit gives rise to retaliation claim

There are many instances where an employee who sues his company for certain labor violations, such as wage & hour claims, still wishes to keep a good relationship with his employer. Unfortunately, sometimes employers react adversely to a suit and immediately seek retaliation against a litigious employee. Depending on how an employer reacts to the suit, an employee may have other causes of action arise against his employer.

Howard Flecker filed a suit against his employer alleging that his collective bargaining agreement was in violation of the New Jersey Wage & Hour Law. After filing the suit, Flecker's employer made a decision that union employees would have their schedules changed and posted a notice that hours would be reduced for union employees. Furthermore, the employer specifically stated that the reason it was reducing the schedules of union employees was because of Flecker's suit. As a result of the employer's notice, many of Flecker's co-workers began harassing him. The harassment eventually became so offensive and stressful that Flecker had no other option but to quit his job.

After leaving his job, Flecker amended his original complaint to include a Conscientious Employee Protection Act (CEPA) claim, explaining that his employer had retaliated against him for his first lawsuit. Although the trial court dismissed Flecker's claim, the appellate court reversed and allowed the claim to continue, acknowledging that Flecker's original wage and hour suit was a form of "protected conduct" under CEPA. Even though Flecker's co-workers were the individuals who harassed him, the court recognized that they only did so because the employer had tried to purposely direct anger towards Flecker.

Flecker's underlying suit will now continue based on its merits. This ruling teaches, however, that although an employee may believe he only has one cause of action against his employer, he should still be vigilant and be aware that additional claims may arise based on the employer's reaction to the lawsuit.

If you have any questions regarding the possible discrimination & harassment, you may contact one of our employment lawyers.

Source: Flecker v. Statute Cruises, LLC, 2012 WL 5499894 (November 14, 2012)