Tag Archives: retaliation

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.

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 POSTER — California Publishes New Mandatory Transgender Rights Poster

As previously reported (in NEW LAW: New Requirements for California Sexual Harassment Training) aside from increasing California’s sexual harassment training requirements to include discussing harassment based on gender identity, gender expression, and sexual orientation and including practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation, Senate Bill 396 also requires all California employers post a workplace poster related to transgender rights. 

In order to help employers comply with this new posting requirement, the California Department of Fair Employment and Housing (DFEH) recently published the English and Spanish language versions of the poster.  Starting January 1, 2018, the “Transgender Rights in the Workplace” poster (as with all DFEH-mandatory posters) must be posted “in a prominent and accessible location in the workplace” where it can be “easily seen and read by all employees and job applicants.”   In addition, if ten percent or more of a company’s workforce speaks a language other than English, the poster must also be displayed in that language (or languages).

It is recommended that all California employers download the new poster and display it in the workplace as soon as possible.

NEW LAW: New Requirements for California Sexual Harassment Training

Attention California employers … on October 15, 2017, California Governor Jerry Brown signed SB 396 into law.  This new law amends the California Fair Employment and Housing Act (FEHA) and requires that employers’ sexual harassment training programs include an additional training element.

Under current law, California employers who employ 50 or more employees are required to provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees in California within six months of their assumption of a supervisory position.  The training program must be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation and must include the following elements:

  • Information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment,
  • Information and practical guidance regarding the remedies available to victims of sexual harassment in employment,
  • Practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation,
  • Information and practical guidance regarding prevention of abusive conduct.

Under the new law, starting January 1, 2018, the sexual harassment training program must also address harassment based on gender identity, gender expression, and sexual orientation and include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation.

In addition to the new training requirements, all California employers are required to post a poster regarding transgender rights in a prominent and accessible location in the workplace.  This poster will be developed by the DFEH and is not yet available on the DFEH website.  It is also recommended that employers consider distributing the DFEH’s brochure regarding transgender rights (Transgender Rights in The Workplace) to all employees.

Take Home for Employers

It is recommended that all affected California employers verify their sexual harassment training programs include the new required elements.  In addition, all California employers should make sure to post the new poster in the workplace once it is available.

An Expensive Lesson on Retaliation- Employers Beware

Employers know that retaliating against employees for engaging in protected activity is unlawful and can lead to a lawsuit, but they often forget how expensive such a lawsuit can be. A recent case in the Los Angeles superior court reminds employers that retaliation claims come with a high price tag – in this case, over $25 million dollars.

The Case

The plaintiff was a former sales manager for a medical device company who, prior to his termination, had engaged in whistleblowing activities. The plaintiff had raised concerns to the company regarding what he considered illegal sales tactics and surgeon kickbacks on several occasions. The company investigated the plaintiff’s complaints, but found no wrongdoing.

The plaintiff was later terminated from his employment.

During the trial, the employer maintained they terminated the plaintiff’s employment for non-retaliatory reasons based on an incident that occurred between him and his supervisor where the plaintiff had yelled at his supervisor and slammed his fists on a table while calling his supervisor a “liar”.

The jury, however, did not agree and awarded the plaintiff $2.7 million for past and future wage loss, and $22.4 million in punitive damages.

Takeaways for Employers                                                         

This case demonstrates how retaliation claims can cost employers significant amounts of money if not addressed and handled properly.

Employers should ensure they are following relevant HR laws and practices and ensure they do not retaliate against employees for making complaints even if the complaints may seem baseless or invalid. Appropriate measures should be taken to address all complaints made by employees and documented accordingly.

“He Didn’t Say Hi To Me!” — The Reality Of Retaliation

In a recent decision (Bien-Aime v. Equity Residential), the United States District Court for the Southern District of New York held that while an employee’s ADA claim had no merit, the employee’s retaliation claim survived summary judgment, even though there had not been any adverse employment action and the alleged retaliatory conduct was merely “petty slights or trivial inconveniences”.

The Case

In this case, the employee was a groundskeeper at an apartment building in Manhattan who had filed a complaint with the state agency that he was being discriminated against because of his disability. Following the filing of this complaint, the employee filed lawsuit against his employer claiming that he had been discriminated against in violation of the Americans with Disabilities Act and had faced retaliation for filing the complaint.

The interesting part of this case, the employee was still working for the employer when he filed the lawsuit and had not faced any other tangible adverse employment action (e.g. demotion, loss of pay, etc.). Instead, the employee based his retaliation claim on the following types of conduct:

  1. The general manager of the apartment building “stopped saying good morning to him”;
  2. His direct supervisor “spoke to him without a ‘warm welcome’ in his voice’” and “continually monitored him at work”; and
  3. Both the general manager and the supervisor “talked to him like he was a criminal.”

In its motion for summary judgment, The employer argued that the employee’s retaliation claim failed because the employee had not faced any type of adverse employment action and the alleged acts were nothing more than “petty slights or trivial inconveniences” that are not actionable as retaliation under the ADA.

The Court disagreed, holding that even though the employee had not suffered any change in the terms and conditions of his employment as he was never discharged or demoted, and his job title, benefits, schedule, and pay all stayed the same, the different and arguably hostile treatment of the employee by his superiors would “dissuade a reasonable worker from making or supporting a charge of discrimination.” As a result, the retaliation claim will be heard by a jury.

Take home for employers

While this claim has not yet been resolved, it teaches all employers a valuable lesson regarding the broad spectrum of conduct that can be considered retaliatory. Many state and federal statutes (like the ADA, Title VII, and related state statutes) prohibit employers from discriminating against a person in a protected class. These statutes also prohibit employers from retaliating against employees for seeking statutory protections. Unlawful retaliation encompasses not only “punishing” the employee for engaging in the protected activity, but also engaging in conduct that could “send a message” to other employees that they will be treated differently if they complain – in other words, discourage other employees from seeking statutory protections.

In order to protect your organization from a retaliation claim, it is critical that all employers implement a policy prohibiting unlawful retaliation. In addition, all supervisory and Human Resources staff should receive training about retaliation and how to properly respond to complaints. Most importantly, when a complaint is received, managers, and supervisors should be reminded of their non-retaliation obligations.

Court finds Employee’s 4-letter word Facebook Rant is protected concerted activity

In a recent ruling (NLRB v. Pier Sixty, LLC), the U.S. Court of Appeals reminds employer that they must exercise extreme caution when disciplining an employee for complaining about workplace conditions on social media, because these posts could be considered protected concerted activity – even if the posts contain explicit language.

The Case

In 2011, employees at Pier Sixty, a New York­­–based catering company, began a union organizing drive. Prior to the union election, Hernan Perez, a Pier Sixty server, posted a derogatory message about his supervisor, Robert McSweeney, on his Facebook page. This message was posted after McSweeney spoke harshly to a group of Pier Sixty employees. Perez, interpreted McSweeney’s behavior as “the latest instance of the management’s continuing disrespect for employees,” which prompted the following Facebook post:

Bob is such a NASTY MOTHER F*CKER don’t know how to talk to people!!!!!! F*ck his mother and his entire f*cking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

When the company learned of Perez’s post (two days prior to the Union election), Perez was terminated.

Following his termination, Perez filed an unfair labor practice charge with the National Labor Relations Board (NLRB). The NLRB found that Perez’s termination was in retaliation for engaging in protected activity and the company appealed the decision to the 2nd Circuit Court of Appeals.

The Ruling

The NLRA prohibits employers from discharging an employee for concerted or union-related activity. Protected concerted activity includes employees (union or non-union) complaining about (and even commenting on) workplace conditions.

Working from this premise, the Court found that despite the fact that Perez used hostile language and openly attacked his supervisor on social media, Perez was complaining about working conditions and therefore was engaging in protected concerted activity when he posted that comment on social media.

To reach this holding, the Court used the NLRB’s nine-factor test to examine the “totality of the circumstances” and determine whether Perez’s termination violated the NLRA. The nine factors are:

  1. any evidence of anti-union hostility;
  2. whether the conduct was provoked;
  3. whether the conduct was impulsive or deliberate;
  4. the location of the conduct;
  5. the subject matter of the conduct;
  6. the nature of the content;
  7. whether the employer considered similar content to be offensive;
  8. whether the employer maintained a specific rule prohibiting the content at issue; and
  9. whether the discipline imposed was typical for similar violations or proportionate to the offense.

Specifically, the Court found that three of the above-listed factors led to its conclusion that Perez’s termination was unlawful:

Subject matter of the conduct (#5)

Here the Court found that the Facebook post “included workplace concerns: management’s allegedly disrespectful treatment of employees, and the upcoming union election.” While the post did contain profanity and attacks against his supervisor, the Court looked at the events that led up to the post and concluded that Perez’s post “was part of a tense debate over managerial mistreatment in the period before the election.” As a result, the conduct was likely protected concerted activity.

Whether the employer considered similar content to be offensive (#7)

Here the Court examined the employer’s past practice when responding to similar conduct. The Court found that the employer tolerated its employees (and managers) using profanity in the workplace. Specifically, the company had issued only five warnings for inappropriate language in the six years prior to Perez’s termination, and no other employee except for Perez had been terminated solely for using obscenities in the workplace. Combining those factors with the timing of Perez’s termination, this led the Court to believe that Perez’s termination was retaliatory.

The location of the conduct (#4)

 

Here the Court examined the forum Perez used to voice his complaint. The Court found that, while Perez complained online (where anyone in the world can potentially view), the comment was not made in the immediate presence of customers and did not disrupt the company’s operations. In addition, the company could not show that any customers were actually aware that these comments had been made. Based on the foregoing, despite the fact that Perez made a “vulgar and inappropriate” statement, the Court found that it was not the same thing as Perez making a public outburst in the presence of customers; therefore, the comment was protected concerted activity.

 

 

 

Take Home for Employers:

This case teaches employers a very important lesson – act with caution when disciplining employees for their social media posts, especially if those posts contain content that could be viewed as complaints about the workplace. While this case, as the Court admitted, “sits at the outer-bounds of protected, union-related comments,” it teaches all employers that under certain circumstances, even an offensive post can be protected.

Before disciplining an employee for his/her social media posts, it is recommended that you carefully consider the above-listed factors to determine whether the employee’s post could be viewed as protected concerted activity. Most importantly, consult with an HR Professional or qualified legal counsel before taking any action against the employee.

South carolina employer Learns a $45K Lesson about Retaliation

Desco Industries, Inc. has agreed to pay $45,000 to settle a retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC).  In this lawsuit, the EEOC claimed that the company terminated an African American employee in retaliation for complaining about race discrimination.

According to the charge, the employee (Daniel Worthy) had been employed by Desco through a staffing agency.  During his employment, Worthy expressed interest in the forklift position to the warehouse foreman.  Based on his discussion with the foreman, Worthy was lead to believe that he was “next in line” for an open forklift position.

However, Worthy (who is African American) later saw a non-black employee operating a forklift and he complained to the staffing agency that he had been discriminated against because of his race.  The staffing agency passed the complaint onto the company and, within days of receiving the complaint, Worthy was terminated.

In its charge, the EEOC alleged that Worthy had been terminated in retaliation for complaining about discrimination.

This settlement serves as a reminder to all employers that employees who report suspected employment discrimin­a­tion are protected from retaliatory adverse employment actions under federal law.  Prior to terminating any employee, it is recommended that employers review the employee’s personnel file and verify that the employee has not recently engaged in any protected action (like reporting discrimination), which may make the termination appear retaliatory.  If there is a recent protected activity, employers should consult with an HR Professional or an employment attorney before terminating the employee.

High Times in Maine??? Not until February 2018

Maine was one of four states in which voters approved a new recreational marijuana law. Maine’s law took effect on January 30, 2017; however, emergency legislation, passed on January 27, 2017, postponed the enactment of certain provisions of the law.

Specifically, the emergency legislation:

  1. Clarified that possession of a usable amount of marijuana by a juvenile is a crime, unless the juvenile is authorized to possess medical marijuana; and,
  2. Delayed the effective date of most of the provisions of the law including the anti-discrimination provisions, until February 1, 2018, so that the state licensing authority can establish and implement regulations concerning retail sales of marijuana;
  3. Prohibits possession of any edible retail marijuana products until February 1, 2018.

Take Home for Employers

Maine employers should actively engage in assessing and evaluating employment law compliance approaches and requirements under Maine’s medical marijuana statute, which the emergency legislation (LD88) did not affect.

Additionally, when the recreational marijuana law becomes effective (on February 1, 2018), Maine will be the first state to offer employment law protections to employees who use recreational marijuana outside of work.  If this takes place, the anti-discrimination provisions of the Maine recreational marijuana law will have to be aligned with the provision allowing employers to discipline employees who are “under the influence of marijuana in the workplace” which facilities a lower wrongdoing and proof standard than “impairment”.

This emergency legislation in Maine will make it difficult for employers to conduct drug testing for marijuana, particularly in the pre-employment context.  This is because even if employee is suspected of being “under the influence of marijuana in the workplace,” the drug test result cannot provide conclusive proof that the marijuana was consumed at work.

We recommend that employers review their employee handbooks and ensure their policies match and consider drug testing policies and how the new law will impact their organization in 2018 to avoid legal issues.