Category Archives: Retaliation

NEW GUIDANCE: DFEH Publishes Model Equal Employment Opportunity Policy

The California Department of Fair Employment and Housing recently published a model Equal Opportunity Policy.

Under California law, employers are required to “take reasonable steps to prevent and promptly correct discriminatory and harassing conduct.”  A part of this obligation includes a requirement that employers develop a harassment, discrimination, and retaliation prevention policy that: Continue reading NEW GUIDANCE: DFEH Publishes Model Equal Employment Opportunity Policy

NEW POSTER:  NYC Publishes New Sexual Harassment Poster

Earlier this year, New York City enacted new laws requiring NYC employers to educate their employees about workplace harassment and sexual harassment.

Under the new law, the NYC Commission on Human Rights is required to provide employers with certain tools to help NYC employers comply with the new law.  These tools include:

  • Creating a workplace poster addressing the new law (in both English and Spanish)
  • Develop a model anti-harassment policy
  • Develop a model standard complaint form
  • Develop a model anti-harassment training program.

Workplace Poster

The NYC Commission on Human Rights recently published the English version of the new workplace poster (the Spanish version is still forthcoming).  Starting September 6, 2018, all NYC employers are required to display this poster (and the Spanish version) in a prominent location in the workplace.

We recommend that employers post this poster as soon as possible.

Workplace Notice

In addition to the poster, the NYC Commission on Human Rights has also released a “Stop Sexual Harassment Act Factsheet”.  This factsheet is intended to help employers meet the requirement of providing all employees (and new hires) with notice of the anti-harassment law.  Employers may either distribute this factsheet to all existing employees and new hires and/or they can incorporate the information in the factsheet into an anti-harassment policy in the employee handbook or a free-standing policy.

We recommend that employers provide this factsheet to all current employees and new hires. Continue reading NEW POSTER:  NYC Publishes New Sexual Harassment Poster

Supreme Court Substantially Limits Whistleblower Protections under Dodd Frank

On February 21, 2018, the US Supreme Court significantly limited the protections whistleblowers have under the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd Frank), by holding that whistleblowers who report suspected securities violations internally to their employer are NOT protected from retaliation under Dodd Frank. This ruling clarifies an area of considerable liability for publicly traded companies (retaliation lawsuits relating to financial disclosures) and reinforces an employer’s ability to consistently and lawfully enforce workplace policies.

Some Background on the Issue

Among its provisions, Dodd Frank affords broad protection from retaliation for employees who report actual or suspected violations of the securities laws to the authorities. Over time, this provision in the law was interpreted by some courts to mean that employees who reported violations to their employers were protected under the law to the same extent as an employee who reported such activity to the Securities and Exchange Commission (SEC).

Retaliation arising out of internal reports relating to the company’s financial disclosures have been a significant risk for employers who lawfully enforced their workplace policies, and in so doing, held employees who complained of alleged securities violations to the same standards as other employees. The court’s ruling affirms that employees only have a right to sue under Dodd Frank when they report violations to the SEC, thereby limiting the scope of retaliation lawsuits under the Act.

The Effects of This Ruling

This is an important ruling for employers who often face whistleblower lawsuits as a “last resort” by employees who otherwise lack a valid reason to sue. However, in viewing the effects of this case, employers should use caution and should understand that this ruling only limits the types of whistleblower lawsuits that an employee may bring; whistleblower claims are still alive and well. Continue reading Supreme Court Substantially Limits Whistleblower Protections under Dodd Frank

2017 EEOC Litigation Data Released

The EEOC recently released the national enforcement data for the 2017 fiscal year.  According to this report, the total number of EEOC charges received in 2017 decreased from 91,503 received in 2016 to 84,254 received in 2017.

In addition, according to the report, in 2017, the EEOC resolved 99,109 charges and secured more than $398 million for victims of discrimination in private, federal and state and local government workplaces.  Most notably, the EEOC received 6,696 sexual harassment charges and 1,762 LGBT-based sexual discrimination charges and obtained $46.3 million and $16.1 million in monetary benefits respectively for resolving these charges.

Retaliation claims remain the most popular claims filed. Race claims, Disability claims, Sex/Gender claims and Age discrimination charges round out the top five.  The total breakdown of charges by type is as follows:

Retaliation 41,097 48.8%
Race 28,528 33.9%
Disability 26,838 31.9%
Sex/Gender 25,605 30.4%
Age 18,376 21.8%
National Origin 8,299 9.8%
Religion 3,436 4.1%
Color 3,240 3.8%
Equal Pay Act 996 1.2%
Genetic Information Non-Discrimination Act 206 0.2%

In addition, the EEOC has also released the breakdown of claims received by state.  The top 10 states are:

   Type of Charge
Total Charges Retaliation Race Disability Sex/Gender Age
Texas 8,827 4,740 2,999 2,642 2,740 1,975
Florida 6,858 3,486 2,153 2,222 2,041 1,366
California 5,423 2,752 1,811 1,915 1,500 1,374
Georgia 4,894 2,434 1,864 1,362 1,596 807
Pennsylvania 4,516 2,133 1,195 1,647 1,293 1,118
Illinois 4,392 2,382 1,663 1,414 1,399 1,032
North Carolina 3,752 1,854 1,447 1,210 1,034 751
New York 3,690 1,711 1,095 1,052 1,142 858
Virginia 2,730 1,201 966 864 818 518
Tennessee 2,640 1,318 970 808 815 528

The full state breakdown of claims is available here.

NEW CASE: Wisconsin employees cannot waive claims under the Wisconsin Fair Employment Act

In a recent decision (Xu v. Epic Systems, Inc.), the Wisconsin Labor and Industry Review Commission has held that an employee’s discrimination claims under the Wisconsin Fair Employment Act (WFEA) are not waivable.  Specifically, the Commission found:

  1. Wisconsin employees cannot waive the right to file a discrimination complaint against his employer under the WFEA, and
  2. An employee may prosecute WFEA claims against his former employer – even if he previously waived and released those claims in a valid severance agreement.

The Case

In this case, a former employee had entered into a severance agreement with his former employer where, among other things, the employee agreed to waive any claims under the WFEA in exchange for a severance payment.

The severance agreement also contained a standard provision intended to comply with federal law which prohibits the waiver of the right to file a charge or complaint with certain federal agencies (e.g., the U.S. Equal Employment Opportunity Commission (EEOC), the Securities and Exchange Commission, the Occupational Safety and Health Administration, the National Labor Relations Board), which stated the following:

Nothing in this release is a waiver of a right to file a charge or complaint with administrative agencies such as the federal EEOC that I cannot be prohibited from or punished for filing as a matter of law, but I waive any right to recover damages or obtain individual relief that might otherwise result from the filing of such charge with regard to any released claim.

After signing the agreement, the former employee filed a complaint with the EEOC for race discrimination.  While the EEOC charge was dismissed, the former employee’s charges were cross-filed with the Wisconsin Equal Rights Division, where the employee claimed that the employer’s conduct also violated the WFEA.  Due to the severance agreement, the Division dismissed the claim and the employee appealed the dismissal to the Commission.

The Ruling

The Commission found even though the former employee had waived his right to recover any damages for violations of the WFEA, due to the standard clause (quoted above), he had not waived his right to file a charge with the Division.  Moreover, the Commission also concluded that employees cannot be precluded from filing a complaint with the Division.

Washington State Supreme Court Expands the Protections of the Washington Law Against Discrimination

In a new case (Zhu v. North Central Educational Services), the Washington State Supreme Court has held that the Washington Law Against Discrimination protects job applicants from “retaliatory discrimination” (i.e. an employer who refuses to hire an applicant in retaliation for the applicant opposing discrimination in a prior job).

The Case

In this case, the plaintiff had previously been a math teacher in the Waterville School District. In 2010, the plaintiff sued the District for race discrimination and retaliation.  The case was ultimately settled and, as a part of the settlement, the plaintiff resigned from his teaching job.

Following his resignation, the plaintiff applied for a position with North Central Educational Services District No. 171 (an agency that provides cooperative and informational services to local school districts – including the Waterville School District).  The hiring committe for North Central Educational Services District was aware of the plaintiff’s past lawsuit and ultimately, the plaintiff was not hired for the position. Continue reading Washington State Supreme Court Expands the Protections of the Washington Law Against Discrimination

NEW TOOL: The EEOC Makes It Easier For Employees To File Discrimination Charges

Watch out employers!  The EEOC has joined the digital age by rolling out its new online filing portal, or Public Portal nationwide.  With this new tool, employees are now able to easily initiate a charge with the EEOC.

Using this new system, employees are able to file a discrimination charge with the EEOC online.  In addition to filing a charge, employees are also able to use this system to manage an EEOC charge that was filed on or after January 1, 2016 if the charge is in investigation or mediation.  Specifically, employees who have filed an EEOC charge can use this new portal to:

  • Provide and update contact information;
  • Upload documents to the charge file;
  • Check the status of his or her charge;
  • Agree to mediation; and
  • Receive charge documents and messages from the EEOC.

NEW LAW: New California Law Favors Employees In Wage Retaliation And Whistleblower Claims

On October 3, 2017, California Governor Jerry Brown signed Senate Bill 306 into law.  This new law, which goes into effect on January 1, 2018, amends California Labor Code section 98.7 and adds Sections 98.74, 1102.61, and 1102.62 to the California Labor Code.  These changes add significant protections to employees who file wage-related retaliation and whistleblower claims and make it more difficult for an employer to defend itself against allegations that it retaliated against an employee for making wage claims.

What exactly does the new law do?

Injunctive relief

Most importantly, the new law makes it easier for employees and the California Labor Commissioner to obtain injunctive relief (a court-ordered remedy that requires an employer to specifically do something – like reinstatement of a discharged employee) in wage-related retaliation cases and potentially requires employers to reinstate discharged employees before an employer can fully defend itself against the allegations.

Under existing law, the Labor Commissioner has the authority to seek any appropriate relief (including injunctive relief) in retaliation cases, but only after it has investigated a claim and determined that unlawful retaliation has occurred.  This changes under the new law.’

Under the new law, the Labor Commissioner has the ability to petition the court for such relief during the course of an investigation”.  In other words, the Labor Commissioner will be able to go to court to obtain injunctive relief before an investigation has been completed and any finding of violation has been made.   In addition, the new law also allows employees to petition the superior court for injunctive relief in whistleblower claims.

But that isn’t all.  The new law also greatly reduces the burden of proof for obtaining injunctive relief in these types of cases.  Under the new law, injunctive relief can be obtain against an employer based on a mere showing that “reasonable cause exists to believe a violation has occurred.”  In addition, courts are also instructed to consider “the chilling effect on other employees asserting their rights under those laws in determining if temporary injunctive relief is just and proper.”   This is dramatically different from the typical standard for injunctive relief, which requires a showing that (1) the employee will suffer irreparable harm, (2) the employee will likely succeed on the merits, and (3) the employee’s interests outweigh the employer’s.

Investigation of Retaliation Claims

The new law also authorizes the Labor Commissioner to begin an investigation into alleged wage-related retaliation “with or without receiving a complaint” from an employee.  In other words, if the Labor Commissioner suspects that retaliation has occurred during adjudication of a wage claim, during a field inspection, or in instances of suspected immigration-related threats, it may proceed with an investigation without first receiving an employee complaint.

New Retaliation Enforcement Process

The new law also dramatically changes the Labor Commissioner’s citation process for the enforcement of claims of retaliation and discrimination.

Under existing law, the Labor Commissioner can only enforce its retaliation determinations via civil action (i.e. by going to court).  However, under the new law, the Labor Commissioner can simply issue a citation directing the employer to cease the violation and take actions necessary to remedy the violation.  It is then up to the employer to challenge the citation through the legal process (administrative proceeding and court appeal).

The appeal process has also changed.  Under existing law, the employer can appeal the Labor Commissioner’s determination to civil court for a trial de novo (a new trial).  However, under the new law, the employer is required to file a writ of mandate with the superior court and post a bond equal to the total amount of back pay allegedly owed.

Higher Penalties

Finally, the new law imposes increased penalties on employers if the Labor Commissioner wins on its enforcement action.  First, the Labor Commissioner can recover reasonable attorney’s fees.  In addition, if an employer willfully refuses to comply with an order of the court to hire, promote, or restore an employee, or refuses to comply with an order to post a specified notice, shall be subject to a civil penalty of $100 per day of noncompliance, up to $20,000.  This penalty is paid to the affected employees.

Take home for employers

This new law should incentivize California employers to make careful and well-reasoned disciplinary and discharge decisions as well as to thoroughly-document those decisions for every employee.  The penalty for failure can be extremely costly  — as evidenced by this new law.

NEW LAW – Connecticut Extends Protections to Veterans and National Guard Members of Other States

On July 5, 2017, Connecticut Governor Dannel Malloy signed Public Act No. 17-127 into law. This act amends the Connecticut Human Rights and Opportunities Act to add a person’s “status as a veteran” to the list of protected classes under this law.

As a reminder, the Connecticut Human Rights and Opportunities Act applies to Connecticut employers with three or more employees and prohibits employers from discriminating against an individual in compensation or in terms, conditions, or privileges of employment because of his/her protected class.

In addition, the new law also adds “the National Guard of any other state” to the list of services that qualify for leave to perform military duty. Under the current law, any employee who, as a part of that employee’s service in the Connecticut National Guard or any reserve component of the armed forces of the United States, is ordered to perform military duty (including meetings or drills) during regular working hours must be provided a leave of absence to perform military duty. Under the new law, employers must extend these leave rights to employees who are members of the National Guard of any other state.

The new law goes into effect on October 1, 2017.

NEW LAW – Connecticut Extends Additional Protections to Pregnant Employees

On July 6, 2017, Connecticut Governor Dannel Malloy signed House Bill 6668 (“An Act Concerning Pregnant Women in the Workplace”) into law. This new law expands the anti-discrimination protections for pregnant employees in Connecticut under the Connecticut Fair Employment Practices Act (CFEPA).

The current version of the CFEPA already provides protections for pregnant employees. Specifically, employers are prohibited from:

  • Terminating an employee because she is pregnant;
  • Refusing to provide an employee who is disabled because of her pregnancy with a reasonable leave of absence (i.e. pregnancy disability leave);
  • Denying an employee who is disabled because of her pregnancy any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by the employer;
  • Failing or refusing to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits upon her signifying her intent to return unless, in the case of a private employer, the employer’s circumstances have so changed as to make it impossible or unreasonable to do so.

Under the amended law, employers are also prohibited from:

  • Limiting, segregating or classifying the employee in a way that would deprive her of employment opportunities due to her pregnancy;
  • Discriminating against an employee or person seeking employment on the basis of her pregnancy in the terms or conditions of her employment;
  • Failing or refusing to make a reasonable accommodation for an employee or person seeking employment due to her pregnancy, unless the employer can demonstrate that such an accommodation would impose an undue hardship on the employer;
  • Denying employment opportunities to an employee or person seeking employment if such denial is due to the employee’s request for a reasonable accommodation due to her pregnancy;
  • Forcing an employee or person seeking employment affected by pregnancy to accept a reasonable accommodation if such employee or person seeking employment:
    • does not have a known limitation related to her pregnancy, or
    • does not require a reasonable accommodation to perform the essential duties related to her employment;
  • Requiring an employee to take a leave of absence if a reasonable accommodation can be provided in lieu of such leave; and
  • Retaliating against an employee in the terms, conditions or privileges of her employment based upon such employee’s request for a reasonable accommodation.

The amended law also provides the following definitions:

  • “Pregnancy” means pregnancy, childbirth or a related condition, including, but not limited to, lactation;
  • “Reasonable accommodation” means, but shall not be limited to, being permitted to sit while working, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light duty assignments, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth or break time and appropriate facilities for expressing breast milk; and
  • “Undue hardship” means an action requiring significant difficulty or expense when considered in light of factors such as
    • the nature and cost of the accommodation;
    • the overall financial resources of the employer;
    • the overall size of the business of the employer with respect to the number of employees, and the number, type and location of its facilities; and
    • the effect on expenses and resources or the impact otherwise of such accommodation upon the operation of the employer.

Finally, under the new law, employers are required to provide all employees with a written notice explaining their “right to be free from discrimination in relation to pregnancy, childbirth and related conditions, including the right to a reasonable accommodation to the known limitations related to pregnancy.” Employers can comply with this requirement by posting a poster in a prominent place in the workplace.

The new law goes into effect on October 1, 2017. It is recommended that employers review their policies and procedures relating to pregnant employees and update those policies/procedures as necessary to comply with the new law. In addition, employers must be prepared to post the new notice starting October 1st.