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OK to call or text with settlement offers

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in Employment Law,Human Resources

The Fair Labor Standards Act (FLSA) protects employees and former employees against retaliation for complaining about wage-and-hour violations, including filing lawsuits. For example, an employer can’t try to punish a former employee by providing false negative references or otherwise interfering with someone’s job prospects.

Basically, retaliation is anything that would dissuade a reasonable person from making the complaint in the first place.

Fortunately, simply asking the former employee if he wants to settle a lawsuit isn’t enough, even if the effort is persistent and makes for an uncomfortable confrontation.

Recent case: Jian is a former sushi chef at Empire Szechuan, a Chinese restaurant in lower Manhattan. He sued the restaurant for various FLSA violations.

More than a year later, Jian received six or seven calls to his cellphone, which he did not answer, and a series of text messages, to which he did not respond. One text read, “If you do not want to settle privately, you can tell me. Just meet me once, I promise you not interfering into this matter anymore.” Another added, “… give me a figure, or tell me you do not want to settle privately. So I can pass just this message to [the owner].”

Jian added a claim of retaliation to his lawsuit, arguing that the efforts to get him to settle were enough to make him reconsider his decision to sue.

The restaurant argued that the effect would have been the opposite. After all, what litigant wouldn’t want his former employer to be eager to settle a lawsuit?

The court agreed with that reasoning. It said the calls and texts, while perhaps unnerving, weren’t numerous enough to constitute harassment. The claim was dismissed. (Li v. Oliver King Enterprises, No. 14-CV-9293, SD NY, 2015)


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