Today's post is by our associate, Jay Kucia.
So you’re thinking of suing an employer? No matter the merits of your case, there is something you should know before you file the complaint. In a lawsuit, you may have to share private information. You need to know what may have to be disclosed, and how it can be protected. There are things your lawyer can do to control public access to that information - especially the most private information.
Let me take a step back and explain how we get here. When you file a civil lawsuit in our court system there is a process called discovery. This is the part of the case where the attorneys for both parties try to find all the information they will need to pursue their arguments. Since employers will usually know the facts of the case, they will spend a lot of their time in discovery trying to dig up anything they can to discredit the workers that sue them or protect themselves from paying all that they might be liable for. This can be almost anything, but let’s break down a few of the most common things that catch workers off guard.
If you’re reading this and doubting your decision to sue your employer, don’t be afraid. I am only telling you this so that you’ll know what to expect. There are two more facts that should give you confidence if you believe in your case.
First, not all the information that is found in discovery can be used in the litigation. For example, that fifteen-year-old DUI would almost certainly not be admissible at trial or into the public record because it is an old conviction that has nothing to do with the employee’s honesty or integrity. A lot of the information obtained in discovery will never go any further than the opposing attorney’s eyes.
Second, an experienced employment law attorney can help you through this process and help keep your private information private. Whether it's filing a "John Doe" motion to keep your identity secret, filing motions to seal medical records, or objecting to the production of inappropriate discovery, there are a variety of tools available to protect your confidential information. Most civil attorneys (including us at Joel F. Dillard, P.A.) spend a great deal of their time doing just that.
I hope this rundown has helped you understand what to expect during a lawsuit. My goal here is not to discourage anyone but to make sure that workers who have been wronged are not surprised by their employer’s maneuvers. If you think you may have an employment law case, please give our firm a call. We’d be honored to help you through discovery and the entire litigation process.
The Supreme Court recently decided an important case I've been watching all year. The issue was whether you can bring a case for only $1 in
nominal damages in federal court. The answer given March 8, 2021, in an 8-1 decision in the case Uzuegbunam v. Preczewski from the Supreme Court, is
yes - and it's a good thing too.
So why, you may be wondering, would anyone bring a lawsuit for one dollar? Actually, this is much more common than you might think, and much more important than it might seem at first glance. The facts of Uzuegbunam itself are a great example of why.
Chike Uzuegbunam was a student at Georgia Gwinnett College, a state school run by the State of Georgia. He went to the commons where his classmates gather and began sharing his religious conversion experience with classmates and handing out religious literature. A campus cop came up and ordered him to stop because distributing religious literature was against the rules outside the
free speech zone and without a permit. Uzuegbunam stopped. He eventually got a permit as instructed and then went to the
free speech zone to share his story.
And yet, again, a campus cop came up and told him to stop because his speech was
disturbing the peace and someone had complained. Uzuegbunam was threatened with discipline. He stopped speaking. Based on Uzuegbunam's experience, another classmate also decided not to speak about his religion on campus.
Both students sued. Now, neither had been harmed financially, physically or emotionally in any meaningful way. But their constitutional rights had clearly been violated. They sought two forms of relief:
nominal damagesof $1
The state initially claimed that they had done nothing wrong and the policy was constitutional. They later admitted otherwise (because the argument was garbage and they had no other choice) and changed their policy.
Once the state changed the policy, the state claimed the case should be dismissed because it was
moot, which is a legal term meaning that there is no longer anything really at stake. Uzuegbunam and his classmate didn't go to school there anymore, and the policy had been changed, so there was no reason for injunctive relief at that point. Uzuegbunam disagreed, and said he still wanted to recover his $1 in nominal damages and sought to keep pursuing the case.
But why would Uzuegbunam want to keep fighting this case at that point? Hadn't he won what he really wanted? The answer is no - not really - because although the policy had changed, his lawyers had fought like hell for years to make it happen, and he had also spent money on filing fees and deposition costs. In other words, Uzuegbunam had actually been harmed because the College didn't immediately admit their misconduct and he'd had to fight hard to force them to change their tune.
Normally, when you win a civil rights case like this one the state has to pay your costs including attorney fees under 42 USC 1988. But - and this is key - the Supreme Court has previously said that when the state
voluntarily changes their policy because you sued, you did not technically
win the case, and so you do not get your costs and fees awarded. The Court has also previously held that attorney fees and costs are not enough to save the case from mootness by itself.
Thus, Uzuegbunam needs to actually
win and to win something other than just fees and costs. He still needs to fight on for his $1 in nominal damages, because only when he gets that will the state also have to pay his costs including attorney fees.
You can see why this case is important to me. If it comes out the other way, the state can simply fight you forever and then, at the last minute - maybe even while the jury is out deliberating - they can just change the policy and then everyone that worked so hard to make them change it are left with nothing to show for it. No one would ever bring a civil rights case for injunctive relief ever again.
Although attorney fees barely came up in the Supreme Court's discussion, at oral argument it was clear that the Court understood that this was the key issue in the background. In order to preserve any real constitutional rights at all, nominal damages need to be available to keep the suit going to the point of judgment, or there will be no lawyers willing to take these cases.
This is particularly important in the First Amendment context because such cases are rarely about money damages, and are about the right to the speech itself.
I guess it is time for our annual reminder. There is a big difference between what government can do to citizens and what citizens can do to each other. In fact, this is perhaps the key idea running through all of constitutional law.
Last year at this time, I wrote:
What this means is that the First Amendment will have no bearing on, for example, how Facebook punishes or regulates the speech of its users, or how Walmart punishes or regulates the speech of its employees. In fact, if Facebook or Walmart want to take a political stand on an issue and censor users or employees that disagree, the government and the courts typically cannot intervene because that would infringe the free speech rights of Facebook or Walmart.
Let's remember this: Facebook sells a product. The product is your speech. If it doesn't like the product you are making for it, it can reject it, and
deplatform you, or anyone it wants, for any reason or no reason at all. It owes you no explanations for any of these basic business decisions.
Do I like this? Not really. I personally think it worth considering whether our major platforms should be truly public. The government could operate social platforms like a utility. You want to end censorship and preserve free speech on the internet? The only way really is to put the government in charge. Then censorship will be restricted by constitutional principles and subject to court oversight to safeguard our freedoms. Otherwise
free speech will actually mean the freedom of the owners of the platforms and portals of the internet to completely control its content.
This is the basic intellectual emptiness at the heart of libertarianism. Freedom as we usually understand it - lived freedom - requires the affirmative creation of public
spaces and the means for the exercise of freedom. And that means that either government must heavily regulate private enterprises that create those spaces, or it must create the spaces itself. Otherwise, the only freedom will be the freedom of the owners of real and virtual spaces to crush and control the opposition.
Which I guess everybody is cool with when they are in charge. But guess what, friends... there's always somebody bigger than you out there. Maybe we shouldn't be so quick to assume that government is the bad guy. Government can at least be reined in with our robust public oversight institutions. And sometimes it is our only chance to create any playing field at all, let alone a level one.
Under federal law, it is illegal to discriminate against an employee
because she was lactating or expressing milk. EEOC v. Houston Funding II, Ltd., 717 F.3d 425, 428 (2013). This means that, if the employer gives breaks to employees for other reasons - smoke breaks, bathroom breaks, etc. - it also has to give comparable breaks to pump milk. Hicks v. City of Tuscaloosa, 870 F. 3d 1253, 1260-61 (11th Cir. 2017). The Supreme Court has spoken, and there is no longer any room to doubt it. Young v. United Parcel Service, Inc., 135 S.Ct. 1338, 1354 (2015).
Mississippi state law gives the same guarantee to employees, even of very small employers not covered by federal law:
No employer shall prohibit an employee from expressing breast milk during any meal period or other break period provided by the employer. Miss. Code § 71-1-55.
The Fair Labor Standards Act - more famous for guaranteeing minimum wages and overtime - was recently amended to guarantee (unpaid) pumping breaks. The employer
shall provide (A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk; and (B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk. 29 U.S.C. § 207(r)(1). If an employer violates this law, and the employee makes a complaint about it, the employer cannot retaliate against the employee for it. 29 U.S.C. § 215(a)(3).
There are extremely compelling reasons for this law, as we've written about before: workplace protections for breastfeeding can save lives and improve the health and intelligence of the next generation of Americans.
Not being proactive about protecting breastfeeding can open the employer to an embarrassing and potentially costly lawsuit - in addition to being illegal and unwise.
So get the word out. You can work and breastfeed. You don't have to accept the bathroom as
good enough. Pumping breaks are protected. Breastmilk should be exclusive to six months and the primary nutrition for a year. Save the babies.
The freedom of speech and of the press shall be held sacred according to the Mississippi Constitution, Art. 3 Sec. 13. This is the strongest free-speech language I am aware of in any law anywhere. This language is far stronger than the First Amendment of the U.S. Constitution, which states only that
Congress shall make no law . . . abridging the freedom of speech. As discussed in a past blog post, the Courts have interpreted the language
Congress shall make no law as limiting the First Amendment to
But the Mississippi Constitution may not be limited to actions of the government. It says, flatly, that this freedom
shall be held sacred, and presumably this means it shall be held sacred by everyone. If true, the implications of this could be staggering - unthinkable even. Certainly it is an interpretation well worth serious consideration.
Yet this language has been quoted only about ten times by the courts since 1950. Some of the discussion in the cases suggests support for the idea, e.g,
They are not idle and meaningless terms, but signify philosophical concepts of a constitutional republic and of the intellectual independence of every citizen. Evers v. State, 131 So. 2d 653 (Miss. 1961). But the courts have rarely - if ever - deliberately distinguished this broader language in the Mississippi Consitution from the federal First Amendment. They have only said, in passing, that
We are of the opinion, without deciding, that Article 3, Section 13, supra, by modern-day standards, appears to be more protective of the individual's right to freedom of speech than does the First Amendment since our constitution makes it worthy of religious veneration.ABC Interstate Theatres, Inc. v. State, 325 So. 2d 123 (Miss. 1976). Accord Gulf Pub. Co., Inc. v. Lee, 434 So. 2d 687 (Miss. 1983).
Perhaps it is an idea whose time is coming.
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