As the COVID-19 pandemic spread throughout the country, many employers responded to this unprecedented and uncertain situation by furloughing and laying off some or all of their workforce. These actions already have spurred labor and employment lawsuits. And more are likely on the horizon, including as employees start returning to work.
Class action litigation under the Illinois Biometric Information Privacy Act (BIPA) has exploded over the last several years. An ongoing issue has been the proper forum for such cases, namely whether there is constitutional, Article III “standing” for BIPA claims to proceed in federal court. A May 5 ruling out of the Seventh Circuit Court of Appeals brought much-needed clarity to the issue by holding that a federal court could hear certain BIPA claims.
Wiest v. Tyco Electronics Corp., a case that has been closely watched by Sarbanes-Oxley (“SOX”) practitioners, may have finally come to a close after nearly six years of litigation. In its decision (click here to view), the Third Circuit affirmed the District Court’s granting of summary judgment for Tyco, and provided additional clarification on what a plaintiff must do to make out a prima facie retaliation claim under SOX.
Tyco asserted that it fired Plaintiff Jeffrey Wiest in 2008 for inappropriate sexual relations with two female co-workers and sexual harassment. He then brought suit under SOX, alleging that Tyco terminated him for raising concerns to his managers about excessive corporate expenditures.
The case has twice been on appeal to the Third Circuit. In 2010, Tyco successfully moved to dismiss Wiest’s complaint on the basis that his complaints did not amount to “protected activity” under SOX. Upon appeal, the Third Circuit reversed and remanded, adopting the worker-friendly standard that an employee engages in “protected activity” where he has a “reasonable belief” that the employer has violated or may violate the law or SEC rules (rejecting the standard, announced and later abandoned by the DOL’s Administrative Review Board, that the complaint must “definitively and specifically” relate to an existing violation of a particular anti-fraud law).
After remand, Tyco was eventually granted summary judgment on the basis that Wiest’s complaints were not a “contributing factor” in his termination. Wiest again appealed to the Third Circuit, which affirmed, and in the process adopted the standard of several other Circuits that a “contributing factor” was “any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision.”
The “contributing factor” standard is a relatively low bar, specifically when compared to the causation standard for retaliation claims under some other statutes. Under Title VII, for example, an employee must establish that his protected activity was a “but-for” cause of the adverse action. See Univ. of Texas Southwestern Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2521 (2013) (“Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.”). Nonetheless, the Third Circuit had no trouble finding that Wiest was unable to meet his burden, noting that there was a ten-month gap between Wiest’s alleged protected activity and the adverse action; that he received praise and commendations in the interim; that the persons who initiated the investigations into Wiest’s inappropriate behavior had no knowledge of his protected activity; and that other persons in the accounting department who were involved (or more involved) in the same activity as Wiest did not receive any negative treatment.
Further, the Court also held that, even if Wiest were able to establish a prima facie case, his claim would have failed regardless. An employer may still rely on the defense that it would have taken the adverse action in the absence of protected activity, and the Court held that “Tyco has demonstrated that it would have taken the same actions with respect to Wiest in the absence of Wiest’s accounting activity given the thorough, and thoroughly documented, investigation [into his inappropriate activity] conducted by its human resources director.”
The Wiest decision is useful guidance for employers defending against SOX retaliation claims, as it outlines potential arguments (concerning the temporal relationship between the protected activity and adverse action, intervening events, and the thoroughness of internal investigations) that may be used to defeat an inference of causation or to establish the affirmative defense that the adverse action would have occurred regardless.