Courts Continue to Expand What Single Events May Constitute Hostile Work Environment

We have written two blogs (here and here) over the past several years on the subject of single-incident acts constituting the basis for a hostile work environment (HWE) claim. 

A host of courts have held in recent years that a single racial slur may well be sufficient to plead a HWE claim.  See Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015) (en banc); Ayissi-Etoh v. Fannie Mae, 712 F.3d 572 (D.C. Cir. 2013); Smith v. D.C. Office of Human Rights, 77 A.3d 980 (D.C. 2013) (the “b-word”).

A series of articles, set forth below, contain citations to scores of other appellate and trial court decisions that have addressed the issue.  See Eugene Volokh, What Speech Does “Hostile Work Environment” Harassment Law Restrict?, 85 Geo. L.J. 627 (1997) (available at: http://www2.law.ucla.edu/volokh/harass/breadth.htm); Karen M. Buesing, Shayla Waldon, Workplace Harassment: When Will a Court Say That Your Employees Have Had Enough?, ABA Section of Labor and Employment Law, Ninth Annual Conference (Nov. 4-7, 2015) (available at: http://www.americanbar.org/content/dam/aba/events/labor_law/2015/november/annual/papers/15.authcheckdam.pdf); Debra D. Burke, Workplace Harassment: A Proposal for a Bright Line Test Consistent With the First Amendment (Available Online at: http://www.hofstra.edu/pdf/law_labor_burke_vol21no2.pdf).

Two recent decisions from Maryland and the District of Columbia underscore the dramatic expansion of HWE claims in the wake of the Fourth-Circuit’s Boyer-Liberto decision and the D.C. Circuit’s decision in Ayissi-Etoh.  In the wake of Boyer-Liberto, Judge James K. Bredar, in Tiffany Jones v. Family Health Ctr. of Balt., Inc., No. JKB-14-762, 2015 U.S. Dist. LEXIS 130818 (D. Md. Sept. 29, 2015) denied summary judgment to the defense, stating that Boyer-Liberto had “changed the landscape” such that a single instance of physical touching was held to be sufficient to overcome a Rule 56 summary judgment motion.  Judge Bredar relied upon the following facts to deny summary judgment:

[Plaintiff] stepped outside [the room]...[o]n her way back, as she walked through the lunchroom and toward a door that opened into the clinic’s waiting room, Plaintiff felt [her supervisor] behind her: he “got up on [her] so close, [she] felt his private parts on…[her] buttocks.”  Plaintiff also felt [supervisor’s] hand on her waist…Plaintiff reported the incident to [another supervisor] who allowed her to “go home” and “get [her]self together.

Judge Emmet G. Sullivan of the federal district court in the District of Columbia, in Kruger v. Cogent Commc’ns, Inc., No. 14-1744, 2016 U.S. Dist. LEXIS 41822, (D.D.C. March 30, 2016) found that the CEO’s alleged reference to Mr. Kruger as a “Nazi” may be severe enough in itself to state a hostile work environment claim.  Based on that finding, relying upon Ayissi-Etoh, the Court denied the defense’s motion to dismiss.  Judge Sullivan further found that an alleged intentional “public display of hostility towards Mr. Kruger” was a factor to consider in determining whether Mr. Kruger had pled a plausible HWE claim.  The public display of hostility was the allegation that the CEO acknowledged other employees with “at least an appropriately cordial greeting” but would “consistently ignore Mr. Kruger and refused to engage in any type of normal workplace pleasantry.”  Judge Sullivan found that the allegation that Mr. Kruger’s “supervisor refused to engage in work place pleasantries added further strength to his hostile work environment claims.”  Possibly, in contrast, see Satterwhite v. City of Houston, 602 Fed. Appx. 585 (5th Cir. 2015) (a single reference to an employee as “Hitler” was found to be insufficient.). 

Based on the continuing expansion of the circumstances that may be sufficient to plead an HWE claim, employers would be wise to have an aggressive zero-tolerance policy; well communicated internal complaint mechanisms; a requirement that co-workers report any inappropriate conduct or comments observed by them; prompt investigations of any such reports; training on a periodic basis to remind employees of their policies in this regard; and discipline, where appropriate, that sends a message to all concerned that the company’s policies are being aggressively enforced and not are merely window dressing.

Please be sure to visit our website at http://RobertBFitzpatrick.com

The Fourth Circuit Loves Plaintiff's Lawyers

Valentine, Valentine, Valentine

O’ won’t you please be mine

You’re such a sweetheart

With love full of sweet tarts

This Valentine’s day is particularly sweet for the plaintiff-employee bar, as the Fourth Circuit repeatedly, in recent times, has been issuing opinions that are quite favorable to employees.  We review a dozen such opinions, maybe better described as a dozen “red roses” or a dozen chocolate coated strawberries:

Our first case is Cruz v. Maypa, 773 F.3d 138 (4th Cir. 2014) in which Judge Gregory, writing for the panel, held that the failure to post the DoL-issued notice of FLSA rights in a conspicuous place in the workplace can result in the tolling of the FLSA statute of limitations.  In doing so, the Court was reaffirming its holding in Vance v. Whirlpool Corp., 716 F.2d 1010 (4th Cir. 1983), in which a panel of that Court had found the 180-day filing requirement of ADEA was tolled by reason of the employer’s failure to post the statutory notice of rights under ADEA.  In addition to the foregoing holding, the panel also held that when a statute of limitations is extended by the legislature, unless the legislature explicitly states otherwise, the extension applies retroactively to any claim under the statute at issue that had not expired under the old limitations statute at the time the legislation extending the statute was enacted. 

Our second case is Lorenzo v. Prime Commc’ns, L.P., 806 F.3d 777 (4th Cir. 2015), in which Judge Niemeyer, writing for the panel, held that an arbitration clause contained in an employee handbook that also contained a contractual disclaimer was unenforceable under North Carolina law.  In addition, the Court held that a class-action certification order is appealable under Federal Civil Rule 23(f) only if the interlocutory appeal is filed within fourteen calendar days of the entry of the class certification order.  In Lorenzo, counsel mistakenly filed seventeen days after the entry of the order, apparently thinking that the client got three extra days for “service”.  The Court emphasized that the language of Rule 23(f) does not permit the three additional days, as time runs from the entry of the order, not from any form of service.  Of course, the appeal is ultimately permissive, as the Court of Appeals must grant permission to review if an interlocutory appeal request is timely made. 

Earlier, in 2013, the Court, Judge Davis writing for the panel, in Noohi v. Toll Bros., 708 F.3d 599 (4th Cir. 2013), applied Maryland law to hold that a one-sided arbitration agreement lacked mutuality of consideration.  There, in a non-employment case, the purchaser was required to arbitrate disputes, but the seller was not.  In so doing, the Court relied on Cheek v. United Healthcare of Mid-Atl., Inc., 378 Md. 139, 835 A.2d 656 (2003) (holding that an “employer’s unfettered discretion to change the arbitration agreement rendered its promise to arbitrate illusory.”)

Our third case is Pryor v. United Airlines, Inc., 791 F.3d 488 (4th Cir. 2015).  In Pryor, the Fourth Circuit, with Judge Gregory writing for the panel, held that the employer could be held liable for a hostile work environment created by an anonymous harasser.  Here, an African-American flight attendant received a racist death threat anonymously left in her company mailbox.  She alleged that United failed to adequately respond.  The panel reversed Judge Brinkema, of the Eastern District of Virginia, who had granted summary judgment, and remanded to the lower court for further proceedings.  Earlier, in 2014, in Freeman v. Dal-Tile Corp., 750 F.3d 413 (4th Cir. 2014), Judge Shedd, writing for the panel with Judge Niemeyer concurring in part and dissenting in part, the Court denied the employer’s motion for summary judgment in a Title VII and Section 1981 race and gender hostile work environment case, holding that there was a triable issue of fact as to whether the employee was repeatedly subjected to unwelcome statements and conduct by a customer, which created an abusive atmosphere, of which the employer should have known and to which the employer failed to adequately respond. 

Our fourth case is Jacobs v. N.C. Admin. Office of the Cts., 780 F.3d 562 (4th Cir. 2015).  In Jacobs, Judge Floyd, writing for the panel, held that the employer had not properly accommodated the plaintiff’s disability, social anxiety disorder.  In doing so, the Court made a number of important holdings, including:

1. “Interacting with others” is a major life activity;
2. The amended ADA rejected, as imposing “too high a standard” the old rule that to prove a disability, one needed to show that the plaintiff was “significantly restricted” in a major life activity.  Here, the Court held: “A person need not live as a hermit in order to be ‘substantially limited’ in interacting with others”;
3. Temporal proximity of three weeks, alone, can establish causation;
4.  Piling on can be proof of pretext where, as here, the defense stated multiple reasons for termination at the time of termination, and then added more before EEOC, and yet more before the district court;
5. The failure to document may be evidence of pretext.  As the Court noted here: “Even more striking is that no one at the [employer] documented any of the justifications (including those raised at the time of termination) in any way”; 
6. The Court permitted surreptitious tape recordings into evidence, and heavily relied upon them in finding genuine factual disputes;
7.  A reasonable accommodation may require job restructuring; and
8.  A failure to discuss Plaintiff’s accommodation request could be found to be an act of bad faith.

Our fifth case is Reyazuddin v. Montgomery Cnty., Md., 789 F.3d 407 (4th Cir. 2015), in which Judge Diaz wrote for the panel.  In this Rehabilitation Act case, under Section 504 thereof, a blind employee challenged the manner in which the County utilized software in a new call center, software that was not accessible to blind employees.  Summary judgment having been entered below, the panel found that the lower court, on remand, should further explore the undue hardship defense put forth by the County.  In addition, there is one subsidiary holding favorable to the defense in which the Court held that public employers are not subject to suit for disability employment discrimination under Title II of the ADA.

Our sixth case is Butler v. Drive Automotive Indus. of Am., Inc., 793 F.3d 404 (4th Cir. 2015), Judge Floyd writing for the panel.  In Butler the Court held that Title VII provides for joint employer liability.  In so holding, the Court articulated the so-called “hybrid” test for joint employment.

Our seventh case is Brown v. Nucor Corp., 576 F.3d 149 (4th Cir. 2015), Judge Gregory writing a sixty-three page opinion for the majority, and Judge Agee writing a ninety-page dissent.  The majority, Judges Gregory and Keenan, vacated the lower court’s decertification of a discriminatory job promotion class action and remanded to the District Court with instructions to certify the class. 

Earlier, the Court, in 2013, in Scott v. Family Dollar Stores, Inc., 733 F.3d 105 (4th Cir. 2013), with Judge Gregory writing for the majority and Judge Wilkinson dissenting, the majority distinguished Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), finding that the district court erred in holding that Wal-Mart precluded allegations of “general policy” discrimination. 

Our eighth case is Foster v. Univ. of Md.-E. Shore, 787 F.3d 243 (4th Cir. 2015), Judge Floyd writing for the panel, in which the Court held that the 2013 Supreme Court decision in Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013) did not alter the McDonnell-Douglas analysis for retaliation claims. 

Our ninth case is DeMasters v. Carilion Clinic, 796 F.3d 409 (4th Cir. 2015), a highly unusual case in which all members of the Fourth Circuit recused themselves and a panel composed entirely of judges from the Third Circuit heard the case.  Judge Krause, writing for that panel, rejected the so-called “Manager Rule”, a rule invoked by management to prevent an employee whose job responsibilities include reporting discrimination claims from seeking protection under Title VII’s anti-retaliation clause. 

Our tenth case is Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013) in which Chief Judge Traxler, wrote for the majority (Judge Hollander concurred in part and dissented in part) and held that, where a sheriff refused to reappoint one of his deputies because the deputy had “liked” his opponent on Facebook, the Facebook “like” constituted “pure speech” and a form of “symbolic expression” which was protected under the First Amendment. 

Our eleventh case is Summers v. Altarum Inst., Corp., 740 F.3d 325 (4th Cir. 2014), Judge Motz writing for the panel, held that the Congress, amending the ADA, intended to cover temporary disabilities, thus permitting the plaintiff, who had been injured while exiting a commuter train on the way to work, to proceed with his ADA case. 

Our twelfth case is Boyer-Liberto v. Fontainebleau, 752 F.3d 350 (4th Cir. 2014), reh’g en banc 786 F.3d 264 (4th Cir. 2015).  Judge King writing for twelve judges, with Judge Niemeyer dissenting writing for three judges, held that a co-worker’s use of the epithet “porch monkey”, standing alone, was sufficiently severe such that a reasonable jury could find there to be a racially hostile work environment. 

Please be sure to visit our website at http://RobertBFitzpatrick.com

Never Darken My Door Clause Stricken by Federal Court

            On January 6, 2016, U.S. District Court Judge Lorna G. Schofield of the Southern District of New York rejected a proposed FLSA settlement agreement which contained a no-rehire clause.  Reyes v. HIP at Murray Street, LLC, S.D.N.Y. Jan. 6, 2016 (unreported online; copy attached tothis blog). 

            The Court found that the clause precluding future employment was “a highly restrictive provision in strong tension with the remedial purposes of the Fair Labor Standards Act (‘FLSA’)…”  In so holding, the Court relied on Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199 (2d Cir. 2015), cert. denied No. 15-605, 2016 U.S. LEXIS 356 (Jan. 11, 2016).  See Jessica Perry, Kathryn Mantoan, and Clayton Flaherty, “Please Pass the Settlement”, Employment Law and Litigation Blog (Dec. 7, 2015) (available at: http://blogs.orrick.com/employment/2015/12/07/please-pass-the-settlement-second-circuit-widens-split-over-stipulated-flsa-dismissals/).

            Cheeks described various other cases that had found various clauses of proposed FLSA settlements to be offensive.  For example, in Lopez v. Nights of Cabiria, LLC, a proposed FLSA settlement included a confidentiality provision, a global release, and a clause establishing that the plaintiff’s attorney would receive between 40% and 43.6% of the total settlement payment without adequate documentation to support such a fee award. 96 F. Supp. 3d 170 (S.D.N.Y. March 30, 2015) (Kaplan, J.).  In Lopez, Judge Lewis A. Kaplan disapproved the settlement.  The Court similarly found that the “highly restrictive confidentiality provisions…are in strong tension with the remedial purposes of the FLSA.”  Id. at 177.  While criticizing many aspects of the confidentiality provisions, the Court took particular aim at those provisions which would “bar plaintiffs from openly discussing their experiences litigating this wage-and-hour case.”  Id.  While recognizing the parties’ interest in confidentiality to encourage settlement, the Court nonetheless concluded “the congressional purposes underlying the FLSA change the calculus in cases like these.  The FLSA evinces ‘Congress’ intent…both to advance employees’ awareness of their FLSA rights and to ensure pervasive implementation of the FLSA[.]’”  Id. at 179-180.

The Court in Nights of Cabiria further held that global releases were inappropriate in the context of FLSA settlements, remonstrating that “[t]he Court will not countenance employers using FLSA settlements to erase all liability whatsoever in exchange for partial payment of wages allegedly required by statute.”  Id. at 181.  As to the attorneys’ fees, Judge Kaplan explained that “[i]t may be that counsel’s fee request is entirely commensurate with the amount of time that the lawyers spent on this case.  But such determinations require evidence, and plaintiff’s counsel has provided none.  The fee request therefore cannot be approved.”  Id. at 182.

            In Guareno v. Vincent Perito, Inc., Judge William H. Pauley of the United States District Court for the Southern District of New York also rejected a proposed FLSA settlement.  No. 14-cv-01635, 2014 U.S. Dist. LEXIS 144038 (S.D.N.Y. Sept. 26, 2014).  In Guareno, the Court listed numerous concerns with the proposed settlement agreement, but appeared particularly concerned about the presence of an unethical agreement that the plaintiff’s attorney would not represent, in the future, any person bringing similar claims against the defendant.  Id. at *3-*4.  Finding that such a restriction “contravenes the FLSA’s intent to permit plaintiffs to bring suit on behalf of themselves and ‘other employees similarly situated[,]’” the Court noted that “[s]uch a provision raises the specter of defendants settling FLSA claims with plaintiffs, perhaps at a premium, in order to avoid a collective action….from other employees whose rights have been similarly violated.”  Id. at *4. 

            In Nall v. Mal-Motels, Inc., the Court first determined that the principle in Lynn’s Food applied to settlements involving former employees, in addition to those involving current employees.  723 F.3d 1304, 1306-07 (11th Cir. 2013).  The Court went on to reject the settlement, focusing on concerns regarding inequalities in bargaining power between current or former employees and employers.  Id.  In Nall the settlement was reached between the defendant and the plaintiff, apparently without the “knowledge or participation” of plaintiff’s counsel.  Id. at 1308.  In rejecting the settlement, the Court reasoned that the FLSA’s protections were “mandatory” and “not subject to negotiation or bargaining between employers and employees.”  Id. at 1307 quoting Lynn’s Food, 679 F.2d at 1352.  Finally, the Court reasoned that “[a]llowing the employer to escape liquidated damages by simply giving an employee the wages she was entitled to earn in the first place – or in some cases, less than that – would undermine the deterrent effect of the statutory provisions.”  Id.

            In Walker v. Vital Recovery Servs., the Court declined to accept offers of judgment because “the record [was] presently insufficient to perform the judicial review required by Lynn’s Food.  300 F.R.D. 599 at 604 (M.D. Ga. 2014).  The Court also noted that the offers of judgment were, for the most part, of $100.00, compensated plaintiffs for only one of several of their theories of recovery, and that many of the accepting plaintiffs “are unemployed and desperate for any money they can find.”  Id.

            In most cases, the Plaintiff is free to voluntarily dismiss his suit, without court order, by “entering a stipulation of dismissal signed by all parties who have appeared.”  Fed. R. Civ. P. 41(a)(1)(A)(ii).  This avenue has long been unavailable to FLSA plaintiffs.  See Lynn’s Food, 679 F.2d at 1353 (citing D.A. Schulte, Inc. v. Gangi, 328 U.S. 108 n.8 (1944)).  The issue in Cheeks was whether, and when, the courts or the U.S. Department of Labor must review and approve FLSA settlements and attendant stipulated dismissals of FLSA claims.  In Cheeks, the parties attempted to settle their FLSA claims by filing a stipulation of dismissal with prejudice pursuant to Rule 41(a)(1)(A)(ii).  In so doing, they argued that FLSA actions may be settled by stipulation without court review.  The Rule provides that actions may be dismissed without a court order “[s]ubject to…any applicable federal statute”.  In other words, Rule 41 recognizes that some actions (those subject to an “applicable federal statute”) may not be dismissed by stipulation without a court order.  The Court in Cheeks solicited the view of the Department of Labor and it opined that the Fair Labor Standards Act falls within the “applicable federal statute” exception.  In Cheeks, Judge Pooler joined by Judges Parker and Wesley, found that the FLSA is an “applicable federal statute” within the meaning of Rule 41, and that, therefore, the settlement needed to be reviewed and approved by the district court.  Other courts have similarly so held.  Lynn’s Food Stores, Inc. v. United States Dept. of Labor, 679 F.2d 1350, 1354-55 (11th Cir. 1982); Copeland v. ABB, Inc., 521 F.3d 1010, 1014 (8th Cir. 2008); Taylor v. Progress Energy, Inc., 415 F.3d 364, 374 (4th Cir. 2005) aff’d 493 F.3d 454, 460 (4th Cir. 2007) superceded by regulation on other grounds as stated in Whiting v. Johns Hopkins Hosp., 416 Fed. Appx. 312 (4th Cir. 2011); Walton v. United Consumers Club, Inc., 786 F.2d 303, 306 (7th Cir. 1986).

            This area has remained unaddressed by the Supreme Court for decades.  The Court has noted, for example, that:

Our decision of the issues raised [in liquidated damages waiver cases] has not necessitated a determination of what limitation, if any Section 216(b) of the Act places on the validity of agreements between an employer and employee to settle claims arising under the Act if the settlement is made as the result of a bona fide dispute between the two parties, in consideration of a bona fide compromise and settlement.

Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 714 (1945).  See also D.A. Schulte, Inc. v. Gangi, 328 U.S. 108, 113 n.8, 116 (1946) (holding that “neither wages nor the damages for withholding them are capable of reduction by compromise of controversies over coverage,” but drawing a distinction in dicta between a settlement agreement and a stipulated judgment entered in the adversarial context of an employee’s suit for FLSA wages). 

Although courts are generally agreed that settlement is permissible when there is a bona fide dispute over liability, there is disagreement over whether, and when, the settlement must be reviewed by a court to make that determination.  See, e.g., Jarrard v. Se. Shipbuilding Corp., 163 F.2d 960, 961 (5th Cir. 1947) (holding that the Supreme Court’s decisions in O’Neil and Schulte regarding settlements did not prohibit approval of a “solemn and binding stipulated judgment entered upon disputed issues of both law and fact” in an FLSA suit brought by employees); Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350, 1353 (11th Cir. 1982) (“When employees bring a private action for back wages under the FLSA, and present to the district court a proposed settlement, the district court may enter a stipulated judgment after scrutinizing the settlement for fairness.”) (citing Schulte, 328 U.S. at 113 n.8; Jarrard, 163 F.2d at 961).

The Fifth Circuit stands in conflict on this issue with most other courts to have considered this question.  In Martin v. Spring Break ’83 Prods., LLC, the Fifth Circuit held that private settlement of FLSA claims is permissible when either the settlement “gave employees everything to which they are entitled under the FLSA at the time the agreement is reached[,]” or, more significantly, when “there exists a bona fide dispute as to liability.”  688 F.3d 247, 255 (5th Cir. 2012) quoting Martinez v. Bohls Equip. Co., 361 F. Supp. 2d 608, 633-34 (W.D. Tex. 2005) (bona fide dispute) and Thomas v. Louisiana, 534 F.2d 613, 615 (5th Cir. 1976) (full relief).  In Martin, the Court approved a private settlement agreement containing a release of FLSA claims which had not been submitted for review and approval by the district court or the Department of Labor, and found that the employees had effectively waived their rights.  Martin, 688 F.3d at 255.

Furthermore, even in cases where courts have required court review and approval of FLSA settlements, it is not entirely clear what standard should be followed in conducting such a review.  Some courts have held that District Courts may enter a stipulated judgment approving the settlement of FLSA claims only after the court has scrutinized the settlement for fairness and reasonableness, and has expressly approved the settlement as fair and reasonable.   See, e.g., Lynn’s Food Stores, 679 F.2d at 1353-55 (“When employees bring a private action for back wages under the FLSA, and present to the district court a proposed settlement, the district court may enter a stipulated judgment after scrutinizing the settlement for fairness.”) (citing Schulte, 328 U.S. at 113 n.8; Jarrard, 163 F.2d at 961).  See also Mosquera v. Masada Auto Sales, Ltd., No. 09-CV-4925 (NGG), 2011 U.S. Dist. LEXIS 7476, at *2-*3 (E.D.N.Y. Jan 25, 2011) (requiring an evaluation of FLSA settlements for fairness and reasonableness); Lee v. Timberland Co., No. C 07-2367 JF, 2008 U.S. Dist. LEXIS 108098, at *4-*5 (N.D. Cal. June 19, 2008) (same); Boone v. City of Suffolk, 79 F. Supp. 2d 603, 605 n.2 (E.D. Va. 1999) (“Because the FLSA was enacted to protect workers from sub-standard wages or oppressive working conditions, employees cannot waive their right to overtime wages unless such a settlement is overseen by the Department of Labor or approved for fairness and reasonableness by a district court.”) (citing Lynn’s Food Stores, 679 F.2d at 1355).

Some courts have further defined this fairness test by setting forth a list of factors that courts should consider.  For example, the United States District Court for the Eastern District of Virginia has held that:

To determine whether a proposed settlement is fair and reasonable under the FLSA, courts should consider: “(1) the extent of discovery that has taken place; (2) the stage of the proceedings, including the complexity, expense and likely duration of the litigation; (3) the absence of fraud or collusion in the settlement; (4) the experience of counsel who have represented the plaintiffs; . . . and ([5]) the probability of plaintiffs’ success on the merits and the amount of the settlement in relation to the potential recovery.”

Belcher v. CHA Cos., Inc., No. 3:10cv420, 2011 U.S. Dist. LEXIS 39063, at *2 (E.D. Va. Mar. 16, 2011) (quoting Lomascolo v. Parsons Brinckerhoff, Inc., No. I:08cv1310 (AJT/JFA), 2009 U.S. Dist. LEXIS 89129, at *10 (E.D. Va. Sept. 28, 2009)).

Until the Supreme Court might rule otherwise – unless you are in the Fifth Circuit – counsel should assume the following:

·         A private FLSA settlement agreement must be approved by a district court or the Department of Labor. 

·         After Reyes, assume that a no-rehire clause, colloquially known as a “do not darken my door again” clause, will be increasingly subject to attack.

·         Attorneys’ fees in any such settlement must be justified.  In the District of Columbia, after the Circuit’s recent opinion in Eley v. District of Columbia, the District’s bench is increasingly requiring substantial justification of hourly rates.  See 793 F.3d 97 (D.C. Cir. 2015) (Laffey matrix and affidavit that counsel’s rates charged clients were within the Laffey matrix found to be insufficient evidence to demonstrate that the requested rates were the rates prevailing in the community for similar services); see also Collins v. District of Columbia, No. 15-cv-00136, 2015 U.S. Dist. LEXIS 159890 (D.D.C. Nov. 30, 2015) (Judge Jackson adopts MJ Kay’s report and recommendations regarding Fee Award in the wake of Eley); Devore on behalf of A.M. v. District of Columbia, 89 F. Supp. 3d 113 (D.D.C. 2015) (plaintiff could have done more to meet her burden to establish the reasonableness of rates); Briggs v. District of Columbia, 73 F. Supp. 3d 59 (D.D.C. 2014) (Laffey rates are presumptive maximum rates for complex federal litigation); Robinson v. District of Columbia, 61 F. Supp. 3d 54 (D.D.C. 2014) (Laffey-matrix is appropriate starting point for the “case by case analysis”); Brighthaupt v. District of Columbia, 36 F. Supp. 3d 1 (D.D.C. 2014) (Laffey rate can be used as “an appropriate starting point for determining rates of reimbursement for attorneys…” but Court declines to award Laffey rates because plaintiff failed to demonstrate that such rates are the prevailing market rate); McAllister v. District of Columbia, 21 F. Supp. 3d 94 (D.D.C. 2014) (affidavits did not provide sufficient information for the Court to determine whether the Laffey rates represented the market rate).

·         Confidentiality clauses may well be stricken.  See Weismantle v. Jali, No. 2:13-cv-01187, 2015 U.S. Dist. LEXIS 53435 (W.D. Pa. April 23, 2015) (“What can be gleaned from this prevailing, if not overwhelming, caselaw trend is that, absent something very special in a very specific case which generates a very good reason above and beyond the desire of the parties to keep the terms of an FLSA settlement out of the public’s view, if the parties want the Court to approve the substance of an FLSA settlement agreement, it cannot be filed under seal”); Baker v. Dolgencorp, Inc., 818 F. Supp. 2d 940 (E.D. Va. 2011) (Judge Henry Coke Morgan, Jr.).

·         Certainly, not only FLSA settlements, but no settlement, should ever have a restriction on counsel’s availability to represent future clients against the defendant.  See, e.g., D.C. R. Prof. C. 5.6(b) (A lawyer shall not participate in offering or making…[a]n agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a controversy between parties.”)