DEFENDING FLORIDA EMPLOYERS: THE FIRST AMENDMENT CAN PREVENT RETALIATION CLAIMS

If a business receives an administrative charge of discrimination by an employee, or is sued by an employee for alleged violations of an employment statute, can the business sue the employee?  Maybe the business can claim the employee defamed it by making false statements about the business. However, the employee will likely claim that the lawsuit is retaliation against the employee for engaging in a protected activity. Many federal and state employment statutes allow employees to claim retaliation when an employer takes adverse action against the employee. For example, Title VII of the Civil Rights Act of 1964, allows employees to claim retaliation when an employer “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” associated with a claim of unlawful employment discrimination. 42 U.S.C. § 2000e-3. These laws can make it difficult for employers defend themselves in lawsuits asserted by employees. But, businesses do have an important defense to these retaliation claims – the First Amendment. The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

The First Amendment provides a right to petition. The right to petition is “one of the most precious of the liberties safeguarded by the Bill of Rights.” BE & K Constr. Co. v. NLRB, 536 U.S. 516 (2002). “[T]he right of access to the courts [by filing a lawsuit] is an aspect of the First Amendment right to petition.” Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983). A person cannot be penalized for filing a lawsuit “unless the suit lacks a reasonable basis in law or fact.” Id. This is true regardless of the person’s motive in filing the lawsuit, and regardless of whether the lawsuit is ultimately successful, as long as the lawsuit has a reasonable basis. BE & K Const. Co. v. NLRB, 536 U.S. 516 (2002). For example, in anti-trust cases, a lawsuit is protected by the First Amendment right to petition unless it is “objectively baseless in the sense that no reasonable litigation could realistically expect success on the merits.” Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49 (1993).

Kentish v. Madahcom, Inc., 566 Supp. 1343 (M.D. Fla., July 16, 2008), is instructive on the issue of the First Amendment privilege to claims of retaliation brought by an employee. The employee alleged that the business failed to comply with the Fair Labor Standards Act (FLSA) by failing to pay overtime compensation. The business filed a counterclaim against the plaintiff seeking payment of business-related expenses in response. As a result, the plaintiff moved to amend his original complaint to add a claim for retaliation (also under the FLSA). The employee wanted to allege that the business’ counterclaim violated the FLSA’s prohibition against employers retaliating against employees claiming FLSA overtime violations. 29 U.S.C. § 215. However, the court denied the employee’s motion to amend because the plaintiff’s retaliation claim was barred by the First Amendment privilege. The employee failed to allege that the employer’s counterclaim was filed without a reasonable basis in law or fact.

If a business is facing a retaliation claim based on the business filing a lawsuit, raising the First Amendment could be a complete defense to the lawsuit.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.