Employer cannot publicly attack plaintiff who won her prior lawsuit

The Court of Appeals holds that an employer, in the course of a long-running lawsuit, must be enjoined from further publishing identifying information about a wage-and-hour plaintiff after she won her case. Publishing such information is unlawful retaliation.

The case is Williams v. Harry's Nurses Registry, Inc., a summary order published on March 18. After plaintiff won her initial FLSA case, the defendant repeatedly challenged the judgment by, among other things, trying to reopen the case, taking up a frivolous appeal, and trying to get the Judicial Panel on Multidistrict Litigation to transfer the case to a federal court in Missouri. The employer also attacked the plaintiff, her lawyer, and the judge online, calling the plaintiff a scammer and a criminal. Defendant also posted plaintiff's date of birth and Social Security number online. The Court refers to this as personal identifying information, or PII. Hence, this retaliation lawsuit.

Retaliation may include adverse actions that post-date the plaintiff's employment. The district court ordered the defendant to remove the identifying information. The Court of Appeals finds the posting of such information was a retaliatory act, as “An employment action disadvantages an employee if it well might have dissuaded a reasonable worker from making or supporting similar charges.” That is black-letter retaliation law under the FLSA and other employment laws. While the employer said he did not post plaintiff's identifying information, plaintiff was able to prove otherwise in the district court.

The trial court also found, and the Second Circuit (Bianco, Park and Nardini) agrees, that defendant intended to retaliate against plaintiff. "The sequence, timing and nature of events surrounding the publication of the information reinforces that its predominant purpose was to get back at Williams. More specifically, the district court found that 'sufficient evidence based on defendant[s’] own words in the postings, [their] rantings about having lost at the district court and Court of Appeals level, and [their] railing against all of the participants in that process, even the judges . . . makes it so clear that . . . at least the primary purpose was to get back at everybody involved in this,' including Williams." While defendant argued that he posted this information to prevent other people from committing identity fraud to obtain employment, the court disagrees and finds :there is no reason [defendant] has to use this forum in this way to police who applies to [defendant] and whether they provide [defendant] with truthful information," as the employer can privately verity the employment information it receives.

Plaintiff also has to prove irreparable harm to win the injunction. She can do so, and therefore recover relief right now and not at the end of the case, the Court of Appeals holds, because "so long as Williams’s PII remains publicly displayed on HNR’s website, she suffers  an ongoing harm that cannot be adequately remedied by a retrospective award of monetary damages, especially when it exposes Williams to 'identity theft and misuse of personal information.'”

There is now way any court is going to put up with this kind of retaliation against a plaintiff who won her lawsuit against a prior employer. For this reason, the Court holds, the balance of hardships and the public interest favor plaintiff's position and not defendant's position. These factors are also relevant to the preliminary injunction analysis. As the trial court held, "the district court found that HNR has no 'real or genuine or . . . non-delusional reason' to post Williams’s PII on its website."