On December 14, 2009, a federal judge in Tennessee issued a preliminary injunction against an employer accused of retaliating against five employees who had filed a collective action against the employer for alleged FLSA violations.  When their employer, New Vision Telecommunications, Inc. (“New Vision”), failed to comply with a previously issued temporary restraining order restricting the Company’s retaliatory behavior, the employees sought the preliminary injunction.

The five plaintiffs’ negative experiences with New Vision began immediately after they filed the action against it in the Middle District of Tennessee.  The plaintiffs alleged that the Company had misclassified them as independent contractors instead of hourly employees, depriving them of overtime.  After receiving notice of the lawsuit, New Vision refused to give the plaintiffs new work assignments, effectively blocking the plaintiffs from earning any pay.  In response, the plaintiffs amended their complaint to include a retaliation count and moved the court for a temporary restraining order requiring New Vision to provide them with the same work opportunities they would have received before initiating the suit.  The plaintiffs also requested that the court require New Vision to post a notice informing all potential class members that there would be no retaliation for joining the collective action.

The court granted the plaintiffs’ requests in their entirety.  However, New Vision failed to comply with the restraining order and further defied the court by singling out the plaintiffs for random drug testing.  The plaintiffs then filed a motion for a preliminary injunction, which the court granted, ruling that the plaintiffs were likely to succeed on their retaliation claim and would be irreparably harmed in the absence of the injunction.

The New Vision case serves as a cautionary tale.  By failing to appropriately instruct its managerial workforce, New Vision had a temporary restraining order and preliminary injunction issued against it less than a month into litigation.  In so doing, the Company diminished its reputation with the court, increased its litigation costs, reduced the likelihood of early settlement, and laid the groundwork for retaliation claims that may very well survive summary judgment.  Additionally, the Company’s failure to properly train its managerial staff will result in New Vision expending its own resources to publicize the collective action prior to certification, which is likely to significantly increase the number of early opt-in plaintiffs.

Retaliation claims often pose a bigger threat than those claims brought in the original action.  Employers should be especially careful when dealing with complaining employees and should do everything possible to ensure that complaining employees are treated the same as, if not better than, other employees in order to minimize the risk of facing retaliation claims.