WORKPLACE RETALIATION: DONT SHOOT THE COMPLAINER

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WORKPLACE RETALIATION DONT SHOOT THE
COMPLAINER

• Colleen M. Regan, Esq.
• McGuireWoods, LLP
• Los Angeles, CA

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Workplace Retaliation

• What is it?
• How does it occur?
• The employees perspective
• The employers perspective
• Recent cases

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To retaliate

• Get even
• Get back at
• Take revenge for a perceived wrong
• Avenge
• To return like for like, especially evil for
  evil

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Legal retaliation

• Generally, employers can control workplace
  conduct
• Adverse employment action (e.g., discipline) is
  the expected consequence for bad behavior

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ILLEGAL Retaliation in Employment

• An employee suffers
• -- illegal retaliation
• when he or she is
• -- harmed
• as a consequence of exercising a
• -- legally protected right

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ILLEGAL Retaliation in Employment

• Violate a work rule, expect to be punished
• Engage in protected conduct, you cannot legally
  be punished

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ILLEGAL Retaliation in Employment

• Unlawful retaliation occurs when an employer
  takes a punitive or
• adverse action
• against an employee
• in response to
• the employee engaging in
• protected activity

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General Areas of Protected Activity

• Expressing concerns about issues in the workplace
• Participation in or cooperation with
  investigations of workplace issues
• Personal life and conduct

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PROTECTED ACTIVITY (PA)

• An employee engages in protected activity when
  he or she
• Opposes illegal activity by employer or makes a
  good faith complaint against employer,
• Participates in an investigation concerning
  alleged illegal activity, or
• Asserts a protected right.

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Opposes illegal activity

• An employee is protected if he/she, for example
• Objects to what the employee believes to be
  illegal conduct, for example
• Discrimination or harassment
• Improper pay practices
• Violation of health and safety laws
• Fraud or illegal cover up
• Illegal pollution
• Agitates for compliance with safety laws
• Refuses to work in violation of wage and hour
  laws

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Makes a complaint

• An employee is protected if he/she, for example
• Files a discrimination or harassment charge
• (internally or publicly)
• Seeks workers compensation benefits
• Files a wage claim
• Calls OSHA to report a safety violation
• Becomes a whistleblower

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Participates in an investigation

• An employee is protected, for example, if he/she
• Is interviewed in an investigation
• Gives a statement
• Testifies
• Assists or sides with a complaining employee
• Participates in any way in a court or
  administrative proceeding

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Asserts a protected right

• An employee is protected if he/she exercises any
  legal right or duty that the employer has no
  right to interfere with, for example
• Takes a legally mandated leave of absence (e.g.,
  FMLA)
• Requests a reasonable accommodation for a
  disability (ADA)
• Takes time off to vote or serve as a juror
• Participates in union organizing activity
• Takes mandatory meal and rest breaks

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ADVERSE ACTION (AA)

• A negative change in a term or condition of
  employment, for example
• Firing or demotion
• Reduction in benefits
• Change in shift or hours of work
• Negative evaluation or review
• Additional or fewer job responsibilities
• Unfair reprimands
• Withdrawal of support

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ADVERSE ACTION (AA)

• Does not necessarily have to be conduct affecting
  the employees work life can be conduct that
  would cause a reasonable employee to refrain from
  engaging in the PA
• Has the likely effect of restraining the exercise
  of PA, and causes harm

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AA in RESPONSE to PA

• Employee has to prove causal connection
• AA would not have happened but for PA
• Proved directly
• manager admits he or she was retaliating
• Proved indirectly
• Circumstances suggest retaliatory motive

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How do you prove motive?

• Managers will rarely admit they are retaliating
• Look at circumstantial evidence
• Closeness in time between PA and AA
• Inconsistent management actions
• Evidence that management is lying or covering up
• Inconsistent reasons given by management

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Retaliatory motive

• Does retaliation have to be the only motivating
  factor?
• NO
• usually, just a motivating factor in deciding
  to take AA against the employee

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Burden shifting analysis

• If employee proves
• AA
• In response to
• PA
• Burden shifts to employer to show
• Legitimate, nondiscriminatory business reason for
  the AA
• Burden shifts back to employee to prove
• Supposed business reason is just a pretext

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Employers Defenses

• No causation
• The PA had nothing to do with the decision to
  impose AA (no causation)
• It was going to happen anyway, whether or not the
  employee engaged in PA
• Employee was already scheduled for demotion poor
  performance review already written etc.

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Employees Perspective

• Employees know they have rights and want to enjoy
  them
• Employees want to be treated fairly
• Employees want their co-employees to be treated
  fairly

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Employees Perspective

• May be bothered or concerned by a perceived wrong
• Unfair discrimination or harassment
• Safety violation
• May want to take advantage of a legal right
• Seek accommodation for a disability
• Take FMLA leave

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Employees Perspective

• May fear retaliation if complains or assists
  complainer
• If experiences AA, likely to feel injured,
  disappointed and angry
• May file charge or lawsuit to protest or correct
  AA

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Employers Perspective

• Most employers want to treat employees fairly and
  legally
• May be unaware of conduct employee is complaining
  about
• May be unaware that retaliation is unlawful

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Employers Perspective

• Who likes complaints?
• Once a discrimination or harassment claim is
  made, it must be investigated
• Time-consuming
• Distracting
• Expensive

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Employers Perspective

• Employer (manager) may feel betrayed by
  complaining employee, particularly if the
  complaint turns out to be groundless, i.e., there
  was no discrimination or harassment, or safety
  violation, occurring
• Thus, the urge to get even, and return like
  for like

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What Should Employers Do?

• Establish a policy against retaliation
• Educate managers about law of retaliation
• Give employees permission to express complaints
• Be cautious about imposing AA soon after PA
• Keep accurate and complete documentation

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Examples of unlawful workplace retaliation

• Dr. Smith sends a letter to the managers of the
  clinic where he works, complaining that there are
  not enough supplies and the treatment rooms are
  not kept clean. Management of the clinic fires
  Dr. Smith.

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Examples of unlawful workplace retaliation

• Dr. Smith sends a letter to the managers of the
  clinic where he works, complaining that there are
  not enough supplies and the treatment rooms are
  not kept clean. Management of the clinic
  transfers Dr. Smith to another clinic twenty
  miles further from his home.

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Examples of unlawful workplace retaliation

• Jane tells her supervisor that she believes a
  co-worker is being unfairly treated on account of
  his race. The complaint is investigated and no
  discrimination is found. Jane receives a written
  reprimand for having brought a false charge.
  This contributes to Jane not getting an expected
  promotion. Jane sues, claiming she suffered
  retaliation for having reported her suspicion of
  discrimination.

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Examples of unlawful workplace retaliation

• Store manager, Alice, is performing poorly at her
  job. Company officials meet and decide to
  terminate her. Several days later, the furnace
  at the store malfunctions, releasing noxious
  fumes. Alice becomes ill, leaves the store and
  files a claim with OSHA. Upon her return to
  work, she is fired.

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Examples of unlawful workplace retaliation

• Frank complains that his supervisor is sexually
  harassing him. In response, the company changes
  Franks schedule so that he works the night
  shift, rather than the day shift. Frank thus
  avoids the harassing supervisor, but Frank
  prefers to work the day shift so he can spend
  evenings with his family.

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RECENT CASES

• Burlington Northern Santa Fe RR v. White, June
  22, 2006 U.S. Supreme Court.
• Title VII if AA would prevent a reasonable
  employee from pursuing the PA, it is sufficiently
  severe to state a claim
• Changed the standard in several circuits

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RECENT CASES

• Yanowitz v. LOreal USA, Inc., 36 Cal. 4th 1028
  (2005).
• FEHA (California) Even though employee did not
  complain about the conduct, the employer should
  have known that the employee was objecting to
  what she perceived to be illegal discrimination

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RECENT CASES

• Washington v. Illinois Dept. of Revenue, 420 F.3d
  658 (7th Cir. 2005)
• Flextime critical to employee with a child with a
  disability
• Wright v. CompUSA, Inc., 352 F.3d 472 (1st Cir.
  2003)
• Employee with ADD requested accommodation and was
  fired had a viable claim that he was fired in
  retaliation for requesting accommodation.
• Immigration cases
• Even undocumented workers have a right to be free
  of retaliation for complaining of illegal wage
  payments

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In California, TORTIOUS retaliatory discharge

• Tort damages available
• Termination in violation of
• A statute or regulation
• Public policy
• For exercising legal rights, e.g.,
• Discussing compensation
• Complaining of smoking in the workplace
• Engaging in political activities
• Refusing to sign a non-compete agreement

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In California, TORTIOUS retaliatory discharge

• Not every legal right gives rise to a claim for
  TORTIOUS retaliatory discharge. The following do
  not.
• Exercising First Amendment rights over employer
  objections (e.g., newspaper reporter)
• Asserting Fifth Amendment during internal
  investigation
• Preparing to work for a competitor
• Right to be free from libel

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How to eliminate workplace retaliation

• Education of supervisors goes a long way to
  prevent unnecessary claims
• Communication engenders trust
• Thank you for joining us!