There’s an old(?) Bonnie Raitt song that my parents used to listen to when I was in college called “Let’s Give Them Something to Talk About”.  It’s about a crush, but the intro could be just as applicable to a new court decision. The lyrics start: “People are talkin’, talkin’ ’bout people, I hear them whisper, you won’t believe it.”

The short lesson? Don’t give your employees something to talk about — namely when a lawsuit is filed, caution is strongly advised in distributing information about that lawsuit.  Interested in more? My colleague, Gary Starr, shares more:

A recent Connecticut district court decision (EEOC v. Day & Zimmerman NPS) is a cautionary tale for in-house lawyers and human resource managers who want to tell employees about an investigation into discrimination claim brought by a former employee, and that investigation may involve those employees.

Following a disability discrimination charge, the EEOC sought contact information about other employees as well as information about their employment.

Rather than simply advise the employees that the EEOC was being provided with their job title, dates of employment, home address, and phone number, the company also described the accommodation that was requested and information that the former employee’s doctor had indicated that without the accommodation, the employee could not perform the essential functions of the job.

The EEOC viewed this as retaliation against the former employee by disclosing the information and interference with the rights of the employees receiving the letter as the agency thought it would discourage others from making claims in the future out of concern that their personal information would be shared widely.

The Company’s efforts to justify the letter were rejected by the court, which decided that a jury will have to decide whether the letter was retaliation and/or interference.

In communicating with potential witnesses in an agency investigation or lawsuit, employers must be clear on why the notice is being sent.  And employers should exercise caution on deciding what information is being shared.  What the decision suggests is that employees do not need to know what the medical condition another employee may have, what accommodation has been requested by that employee, or what recommendation a doctor has made about the employee.

Letting employees know that their contact information has been given to the EEOC and that they may be contacted would likely have have been sufficient and not opened up the employer to criticism.  And the decision does suggest that offering them the choice of having a lawyer present should not interfere with their rights.

In this instance, less information is better than more.

In any case, in the unlikely event you do need to inform employees about a lawsuit, check with your counsel about the details you should (and should not) be sending.

Labor Day has come and gone. Summer is over.  Can we all stop listening to Despacito now. (Please?)

But it’s time to look at a decision that came out during the dog days of summer that might have been overlooked.  A recent federal district court case (Noffsinger v. SSN Niantic Operating Co. LLC, download here) has answered the question of whether Connecticut’s medical marijuana laws were preempted by federal law.

The decision held that Connecticut employees who have received approval from the state agency to use medical marijuana outside of work cannot be fired just because they test positive for marijuana during a drug screening.  In doing so, the court held that employees and job applicants can sue based on a termination or a rescinded job offer.

As my colleague wrote for my firm’s alert:

Unlike the laws of other states permitting residents to be prescribed medical marijuana, Connecticut’s statute expressly makes it unlawful to refuse to hire or to discharge an employee solely because of the individual’s status as a qualifying patient, or for testing positive in a drug screening as a result of using medical marijuana within the protections of the statute. However, Connecticut does not protect such individuals if they are found to be using or are under the influence of medical marijuana during working hours.

The court analyzed federal drug laws and determined that they do not address the issue of employment and do not make it unlawful to employ a medical marijuana user. As a result, even though federal law prohibits possession or use of marijuana, those restrictions do not apply to someone properly using medical marijuana under state law.

The decision follows one from Massachusetts that we previously recapped here.

In prior posts, I’ve talked about the difficulties for employers trying to navigate this still-developing area of law.  Employers should proceed carefully under such circumstances and ensure compliance with the state’s medical marijuana laws that prohibits firing employees solely because of the individual’s status as a qualifying medical marijuana patient.

If an employee is under the influence of marijuana during working hours, that may afford employers the opportunity to take decisive employment action but other circumstances may not be so clear.

Consulting with your legal counsel on this changing area of law is advisable for the foreseeable future while more court decisions define the parameters of acceptable action.

If at first you succeed, try it again. 

Well, that may not be how the saying goes, but the first back-and-forth post between me and Nina Pirrotti, an employee-side attorney, was so well received that we’re back for another conversation. 

Today’s topic: What legislation are we both keeping our eyes out for at the Connecticut General Assembly?  

The Dialogue Begins

Dan Schwartz: So Nina, our first post was such a hit that I think we’re due for an encore.  Thanks for being up for this.

It has only bewn a few weeks, but it feels like we’re moving at warp speed on developments.  We could spend another post just on The Donald, sorry, Mr. President. Somehow I think we’re likely to talk about that again soon.

But let’s focus today on some of the legislative items we’re keeping an eye on, particularly in Connecticut. Each year, it seems like our General Assembly likes to roll out fresh employment law ideas.

Is there a particular bill that you’re keeping your eye on now from an employee-side perspective?

nina_t_pirrotti1-150x150Nina Pirrotti: I’m so glad you asked!   Yes, let me tell you about one bill that has been on my mind on the federal level (I am speaking about it at an ABA conference in sunny Puerto Vallarta really soon) and then I will give you a couple of highlights from our backyard.  

The federal bill that looms large for me right now (although concededly perhaps not as large as the prospect of sitting on the beach, tequila based beverage in hand) is the misleadingly named  Lawsuit Abuse Reduction Act (“LARA”) which would force judges to respond to Rule 11 motions in a particular manner. 

Rule 11 allows for the possibility of sanctions to be imposed on attorneys or parties who submit (or later advocate for) pleadings which have been filed for an improper purpose or which contain frivolous arguments or claims. 

While Rule 11 motions rear their ugly heads relatively rarely in litigation, a newly invigorated Republican majority in Congress has proposed LARA which would amend the sanctions provisions in Rule 11 to remove all judicial discretion – – regardless of the circumstances of the individual case- – in two critical respects. 

First it would require the court to sanction any attorney, law firm, or party who violates the rule.  Second it forces judges who find the rule has been violated to order the offending party to pay  the other party’s attorneys’ fees and costs.  Those in my world who oppose LARA say that there is no proof Rule 11 is not working in its current form, that the changes would burden the courts and that  its “once size fits all” mandatory sanctions would unfairly penalize employees in civil lawsuits.

Closer to home, two bills come to mind.  The first is a proposed modification of C.G.S.A. 31-51m, a statute which bars employers from retaliating against employees who report  employers’ unethical or legal wrongdoings to public bodies. 

The modification seeks to  protect employees who complain about such conduct internally or who refuse to participate in an activity they believe to be in violation of the law.   It also seeks to extend the timeline to bring an action under the law (employees now have only 90 days to file) and to provide for a greater array of damages if the employer violates the statute.

The second is a proposal to provide eligible employees with paid Family and Medical Leave Act leave.  The proposed legislation would require employees to contribute 1/2 of 1% of their wages to it (there would be no employer contribution) and employees cannot opt out it.   

We plaintiff employment lawyers would welcome both pieces of legislation as long overdue and reasonably tailored to protect Connecticut’s workforce.

What are your thoughts from the other side of the aisle, Dan?    Or is there other proposed legislation that has captured your attention?

Continue Reading The Dialogue: What Legislation We’re Keeping Our Eyes On

zombieAs I did last year, after I posted on the general statistics of the CHRO to see if we could glean any trends, I took a deeper dive into what the statistics this year show.  And there were definitely a few surprises.

Obviously, at the risk of repeating yesterday’s post, FY 2015-2016 was a very big year for employment claims.

But because less employees are being fired or laid off (unemployment in Connecticut is at moderately low levels and the newest national figures this morning show just a 4.6 percent unemployment rate) than in a recession, what gives?

Well, if you look at the “discharge” claims — that is, the claim that “I was fired because of discrimination” — there was a modest increase in those claims to 1216 in FY 2016, up from 1174 in FY 2015.  But still, discharge claims are down from their historical peaks in 2003, when there were 1385 such claims.

But the bigger increase continues to be in the “terms and conditions” area.

That is, employees who claim that they are being discriminated against in the “terms and conditions” of their employment when it comes to things like hiring, promotions and pay.

It could also mean an employer is not approving leaves, or granting breaks or any other term or condition of employment, however small.

In 2003, there were 411 such claims filed.  In 2014, there were 782.  By FY 2016, however, that number has skyrocketed to 1056!  That’s a 35 percent increase in just the last two years.

In my mind, that likely means that more current employees are bringing discrimination claims against their employers.

This is bolstered by a look at the “harassment” statistics. Notably, I’m not talking about sexual harassment claims, which continue to trend noticeably downward.  Just 135 such claims were filed in FY 2016, down from 185 the prior year and the lowest number by far in the 15+ years of available data.  

Instead, this is a catch all claim for “I’m harassed” because of some other reason.  Just 175 such claims were filed in 2003, though that number was up to 380 in 2014.  For FY 2016, that number is up to 545.

That’s a more than 210% increase in over a decade!

Retaliation claims are also up again — an increase from 753 to 776. Though, it should be noted, that rise is a bit slower than the past few years.

What’s the takeaway?

As I noted last year, you may be looking for claims in the wrong spot.  Dismissal claims are up modestly but “harassment” and “terms and conditions” claims continue to see the biggest increases.

Thus, managing your current employees and getting legal counsel involved to help advise you, may be more helpful to keeping such claims to a minimum than just talking with counsel exclusively about terminations.

Regardless, employers should continue to be mindful that the trend of increased discrimination claims in Connecticut shows no signs of slowing down.

 

lettersPicture this scenario:

You come into your office one morning to learn that an employee has filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) claiming that you failed to accommodate his disability reasonably and then terminated his employment because of his disability.

As if that isn’t challenging enough, many months afterwards, you receive a request from the EEOC to provide the names and contact information of his fellow employees who worked for you at the same time as the original complainant, as part of the EEOC’s investigation into the complaint.

This type of scenario isn’t uncommon; the state agency investigating discrimination complaints (CHRO) often requests information on co-workers as part of the investigation and sometimes requests that these co-workers be available for interview.

But here’s where the scenario gets interesting — and this story is based on a ruling on a motion to dismiss in federal court just this week in the EEOC v. Day & Zimmerman case.  The employer’s in-house counsel — seemingly with reference to outside counsel as well — decided to notify the co-workers of the request.

Indeed, the employer sent a letter to approximately 146 individuals, all of whom were members of same union as the Complainant and all of whom had worked, or continued to work, for the employer.  Whether you view the letter as an innocuous helpful note, or a nefarious threat will depend on your perspective.

In the letter (which you can download here at part of the employer’s filings — page 49), the employer identified the complainant by name, and indicated that he had filed a charge of discrimination on the basis of disability. The letter went on to identify the Complainant’s union local, the medical restrictions on his ability to work, and the accommodation he had requested. It further informed the recipients of their right to refuse to speak to EEOC investigator and offered them the option to have the employer’s counsel present if they chose to speak to EEOC.

Is there anything wrong with the letter?

According to the EEOC, yes (download here). The EEOC alleged that this letter constitutes retaliation against the original Complainant for opposing conduct made unlawful by the ADA. The EEOC further alleged that the letter interfered with the Complainant and the recipients of the letter in their the exercise or enjoyment of rights protected by the ADA, including the right to communicate with EEOC, the right to participate in an EEOC investigation, and the right to file a charge of discrimination with EEOC.

The employer, as you might imagine, vehemently disagreed and filed a motion to dismiss the complaint (download here).  It argued that the lawsuit “exemplifies the U.S. Equal Employment Opportunity Commission (“EEOC”)’s enforcement position of ‘do as I say, not as I do.'”  It noted that the EEOC, through the lawsuit itself, publicized the same information it now criticizes the employer for doing, even though the employer was obligated — it argues — to do so by the Rules of Professional Conduct (simply, the ethical code for attorneys).

The employer also argued that the letter explicitly re-affirmed the employer’s policy against retaliation, its commitment to equal employment opportunity, and the “employer’s position that a decision to speak with the EEOC investigator ‘will not have an adverse impact on your current or future employment.'”

The federal court rejected the employer’s motion to dismiss (ruling available here for download); in doing so, it emphasized that under the standards governing review of such motions, it must construe the federal complaint in a light most favorable to the EEOC. After doing so, the court concluded that the allegations were sufficient to state a claim for ADA violations  even though the Complainant had already been terminated from employment at least 17 months prior to the letter being distributed.

As a starting point, the court noted that “Routinely, courts have held that, when an employer disseminates an employee’s administrative charge of discrimination to the employee’s colleagues, a reasonable factfinder could determine that such conduct constitutes an adverse employment action.”  And the court concluded that, again construing the facts most favorably to the EEOC, the letter was sent just three months after the employer learned that the EEOC intended to pursue the complaint seriously:

Here it is plausible that the first opportunity to retaliate against [the Complainant], whom they had already terminated, was when the EEOC provided a list of fellow union members to whom Defendant could disseminate the potentially damaging EEOC charge.

The court also addressed the seldom-litigated issue of an interference claim under the ADA. It noted that neither the Supreme Court nor the Second Circuit has outlined a test for such a claim. (Though query whether the court overlooked the Second Circuit case of Gradziano — or at least had written its opinion before that one came out.)

Here, the court concluded that while there was no allegation of any direct evidence of the employer’s intent behind the letter, the issue of the employer’s intent “is a question of fact that cannot be resolved on a motion to dismiss.”

Moreover, the fact that the employer disclosed “sensitive personal information” about the Complainant could dissuade the Complainant and the co-workers from communicating further with the EEOC.

Obviously, this lawsuit if far from over.  Both the EEOC and the employer have staked out positions that make a compromise seem unlikely.  And so the case will likely proceed to discovery and then another round of motion practice.

For the rest of us though, this case — and the issues it touches upon — is again worth following.

In the meantime, employers should be very wary of mass notifications of discrimination charges to co-workers (former or current) in response to an EEOC inquiry.   Left unclear from the decision is whether there are any circumstances in which the employer can notify co-workers of the inquiry and at what level of detail.  Would an e-mail indicating that the EEOC may be contacting them but without the details of the Complainant’s complaint pass muster?  How strongly should an employer emphasize its policies prohibiting retaliation?

Employers are going to want to tread very carefully for now and consult their counsel about any communications going out.

While a recent Second Circuit case received lots of headlines regarding its discussion of individual liability under FMLA, the case has some other nuggets for employers to understand, as my colleague Gary Starr explains in today’s post.  Buried in Graziadio v. Culinary Institute of America case is a reference to the fact that the federal appeals court had not “yet had occasion to consider what standard should govern such rarely litigated claims of ‘associational discrimination.'”

That is, until now. Thanks to Gary for highlighting this notable aspect of the case.

starrYou should all know by now (and call us if you don’t) that when an employee asks for a reduced schedule to address his/her own disability, the ADA and Connecticut law may apply. Indeed, under the ADA and state law, you should engage in an interactive process to work out a way for both parties to benefit.

But what happens when it is not the employee who has the disability, but rather a family member and the employee seeks an accommodation?

While we know that employers must address the situation involving a qualified individual with a known disability, the situation is different when the employee has a relationship with someone known to have a disability.

Discrimination is prohibited based on that relationship or association, but importantly, the scope of the employee’s rights is not the same.

The Second Circuit recently explained that there are three situations that can lead to a claim of associational discrimination:

  1. Where the employee suffers an adverse action as a result of the employer’s concern over the “expense” that may cause increases in insurance due to the employee’s association with a disabled individual covered by the employer’s insurance;
  2. Where the employee suffers an adverse action as a result on the employer’s fear that the employee may contract or is genetically predisposed to develop the disability of the person with whom he/she is associated; or
  3. Where the employee suffers an adverse action due to the employer’s fear that the employee will be inattentive at work due to the disability of the disabled person.

If any of these 3 situations is the basis for the adverse action, then the recent case suggests that the employer will have to prove that it had a legitimate non-discriminatory reason for its action.

In the case before the court, there was no claim involving concerns about insurance or about the possibility that the employee might develop a disabling condition.  Instead the employee alleged that the employer feared the employee would be inattentive at work because her son developed diabetes and he was learning how to monitor his blood sugar.

While that was the allegation, the employee could not and did not show that she was fired because the employer believed she would be “distracted” by her son’s condition.  Rather, the evidence showed that she was fired because her employer’s concern was that she would not be at work at all.

The employee failed to prove she was discriminated against under the ADA as an accommodation was not available under these circumstances.

However, often these cases have an aspect under another federal law.  Here, the Family Medical Leave Act could provide her with the opportunity for intermittent leave, if necessary, and this became the basis for her lawsuit.

What cases like this demonstrate is that under the patchwork of state and federal laws, it is important to analyze a situation under differing statutes.  In this case, the employee had no recourse under the ADA, but did under the FMLA.  It is important to take the time and be sure that the requests made by an employee for an accommodation are fully reviewed.  The consequences can be protracted litigation and a large back pay judgment.

 

My colleague, Jarad Lucan (who just won a New Leader of the Law award from the Connecticut Law Tribune!) returns today with a post about the protections employees who testify in court may have. 

Lucan_J_WebMost employers (at least those employers that read this blog on a regular basis) know that it is illegal to subject an employee to an adverse employment action, such as termination, because that employee raised a claim of discrimination or was absent from work due to a serious health condition.

But what if your employee is summoned to court to fulfill his or her civic responsibility as a juror or is subpoenaed to provide witness testimony during a criminal proceeding?  Is an employer similar restricted in the actions it takes against an employee for participating in such activities?

The answer is “Yes.”  There are numerous statutes applicable to Connecticut employers providing protections to employees who attend jury duty or appear in court.

  1. Connecticut General Statute §51-247a prohibits an employer from discharging, threatening to discharge, or otherwise coercing an employee for responding to a summons or serving on a jury.  In addition, any employee who serves eight hours of jury duty in any one day must be deemed to have worked a full day’s work and an employer cannot require an employee to work in excess of those eight hours.  Any employee who is discharged in violation of this statute may bring a civil action against his or her employer for up to ten weeks’ wages plus attorneys’ fees.
  2. Connecticut General Statute § 54-85b prohibits, among other things, an employer from discharging, threatening, penalizing, or coercing an employee who obeys a legal subpoena to appear before any court in the state as a witness in any criminal proceeding.

    Further, this statute was amended in 2010 to provide protection to victims of family violence who attend court proceedings and who participate in police investigations related to that crime.   These employees also may not be discriminated against for having a protective order issued on their behalf.

    An employee who is discharged, threatened, penalized or coerced in violation of this statute may bring a civil action for damages and for an order requiring the employee’s reinstatement or otherwise rescinding such action. If the employee prevails, the employee shall be allowed a reasonable attorney’s fee to be fixed by the court.

    Aside from any possible civil liability, employers that violate either statute may be guilty of criminal contempt, and upon conviction, may be required to pay a $500 fine and serve up to thirty days in prison, or both.

  3. Under federal law, 28 U.S.C. § 1875 prohibits employers from discharging or taking any other adverse employment action (threatening to discharge, intimidating, etc.) against a permanent employee because that employee provides jury services in federal court. Employers that violate this statute may be sued for back pay, reinstatement, and attorneys’ fees and may be fined up to $5,000.
  4. Lastly, employees who testify on behalf of another employee in a discrimination claim may also be protected under both federal and state anti-discrimination laws.  Dan reported on the U.S. Supreme Court’s case back in 2011 that discussed what this “zone of interest” may look like.

chro2In yesterday’s post, I talked about how employment claims being filed are up big at the CHRO.

Indeed, in looking at the statistics further, I realized that it is the second highest number of claims being filed in the last 15 years.

So, FY 2015 was a very big year for claims.

But typically, in an improving economy, claims go down.  At least that’s the prevailing wisdom. So, what gives?

I wondered if the statistics could help explain the increase further?

In part, yes.

abacusIf you look at the “discharge” claims — that is, the claim that “I was fired because of discrimination” — those claims are basically the same (1174 for FY 2015 vs. 1164 in 2014.)

Compared with 2003 – the peak year for employment claims at 2211 — discharge claims are actually down substantially.  Indeed, in 2003, there were 1385 claims.  Thus, discharge claims are actually down 15 percent since 2003.

So, where are these claims coming from? One is from an obvious source: Retaliation claims.

In 2003, there were 516 claims filed. In 2014, 625. And in 2015, 753.  A 46 percent increase in the last decade or so and 20 percent over the last year alone.

Another is from a not so obvious source: from the “terms and conditions” area.  That is, employees who claim that they are being discriminated against in the “terms and conditions” of their employment when it comes to such things as hiring, firing, promotions, and pay. It also means an employer may not discriminate, for example, when granting breaks, approving leave, assigning work stations, or setting any other term or condition of employment – however small.

In 2003, there were 411 such claims filed. In 2014, 782. And in FY2015 —  a spike to 941.  That translates to a 130 percent increase in such claims over the last 12 years and 20 percent over the last year alone.

In my mind, that means that many current employees are bringing discrimination claims against their employers based on the terms and conditions of their employment.

One other source? Harassment claims.  Notably, I’m not talking about sexual harassment claims which are actually down from last year and down 24 percent from 2003.

Instead, this is the catch all claim for “I’m harassed” because of some other reason.  503 claims were filed in FY 2015 vs. 380 in 2014 and just 175 in 2003.  That’s an increase of nearly 190 percent in the last 12 years and 32 percent last year alone!

Again, these are typically brought by current employees who may be dissatistifed with things at work and believe that they are being “harassed” by their supervisor.

Indeed, the notion of “workplace bullying” movement is premised, at least in part, on this idea.

So, what’s the takeaway here? You may be looking for claims in the wrong spot. Dismissal claims are fairly constant, but it is claims by current employees that are up substantially over past years.

And while we’ve talked about the increase in retaliation claims for many years, but harassment and “terms & conditions” claims are now the hot areas — at least in Connecticut.

Is there anything else to be gleaned from the statistics? Any other reasons why we’re seeing an increase? Stay tuned for the next post.

These are not the interns you are seeking
These are not the interns you are seeking

Believe it or not, harassment against summer interns isn’t directly prohibited under Connecticut law.  (But treating them like employees without paying them is against the law.)

This is not, however, a column about the best ways to harass your interns.  Indeed, regardless of the law, it’s bad in so many ways.  (And the CHRO has taken the position — yet to be tested in courts — that interns are already covered.)

But all that is about to change. Earlier this week, the Connecticut General Assembly passed legislation (Senate Bill 428) that would make it illegal to do so and allow those interns to file claims not only with the Connecticut Commission on Human Rights & Opportunities but ultimately in Superior Court too.

The bill, which awaits the Governor’s signature, would go into effect October 1, 2015 and has several important aspects that employers should be aware of now.  The bill follows a trend in California, New York, and other states to protect interns more explicitly under the law.

So, who IS an intern?

An intern is defined as someone who performs work for an employer for the purpose of training, provided:

  1. the employer is not committed to hire the person performing the work at the conclusion of the training period;
  2. the employer and the person performing the work agree that the person performing the work is not entitled to wages for the work performed; and
  3. the work performed meets five conditions.

Those five conditions are that the work:

  • supplements training given in an educational environment that may enhance the employability of the person;
  • provides experience for the benefit of the person;
  • does not displace any employee of the employer;
  • is performed under the supervision of the employer or an employee of the employer; and
  • provides no immediate advantage to the employer providing the training and may occasionally impede the operations of the employer; and

If you’ve seen some or most of these factors before, that’s because the U.S. Department of Labor has outlined something similar in its definition of interns.

And what exactly is prohibited?

Well, for most part, the things that are prohibited against employees are prohibited against interns.

For example, the bill prohibits discrimination based on an intern’s race, color, religious creed, age, sex, gender identity or expression, sexual orientation, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability, including, but not limited to, blindness. The bill’s prohibition covers hiring, firing, and advertising internships.

It also prohibits sexual harassment against interns.

The bill also bans an employer from retaliating against an intern for filing a complaint or testifying in a proceeding about a discrimination complaint.

For employers, this new law (when signed by the governor) should lead to a few steps being taken:

1) Amend your policies and procedures to cover interns. That includes your anti-harassment policies.

2) Educate your managers and your interns on what is appropriate in the workplace.  It is particularly important for the interns who may have had little workplace experiences before this.

3) If you have insurance, ask your insurer whether it will cover claims made by interns (who are not, by the way, defined as employees).

4) Consider the risk factors of continuing an internship program.  If these interns can now bring suit against your company, I have no doubt that some companies may say that the risk is too high.

There are still unanswered questions about this. If an unpaid intern gets “fired”, what are his or her damages? There is no back pay so then what? Reinstatement? And if the employer has the right not to hire the person after the training period, then what?

Fortunately, this bill seems to be in search of a problem that doesn’t seem particularly rampant.  In the testimony in support of the bill, not a single example of intern discrimination or harassment was identified, even by the Connecticut Commission on Human Rights & Opportunities.

That said, stay tuned for more as the particulars of this bill get incorporated into everyday practice.

 

I know. We’re a bit of a broken record here. Another post on the perils on retaliation claims. (I’m resisting adding the “so sue me” joke here.)

But new decisions from the courts keep coming out which give us an opportunity to do refreshers to employers and provide subtle tweaks to the associated wisdom surrounding defense of retaliation claims.

Today, my colleague, Gary Starr returns with recaps of both a Second and Sixth Circuit case and the implications for employers.  

starrFor employers, retaliation is often worse than the original challenged behavior.

But left unanswered in some instances is this question: What does an employee have to do to actually be protected by anti-retaliation laws? While different laws have use different words to protect that who oppose what they believe are unlawful conduct, what is clear is that the employee must take some action.

Certainly an employee who files a complaint with an agency and notice sent by the agency would fall within the statute.  If an employee is then subjected to some adverse action, that may be considered by the courts to be retaliatory.

Similarly, if an employee goes to a manager and provides details about a claim of harassment, discrimination, a paycheck problem, or an unsafe work condition, then any adverse action following that complaint may be considered retaliation.

The tougher problem arises where there is some grumbling or a passing comment. In that case, would the employer understand the comment to have been an assertion of rights protected by a statute?

Still not a good idea
Still not a good idea

In a recent Fair Labor Standards Act case, an employee complained that he had not been paid in several months. His employer responded that he would be paid when the employer felt like it. Then without warning the employer drew a gun and pointed it at the employee, who interpreted the response as the end of the conversation as well as the end of his employment.

The court in Greathouse v. JHS Security Inc. (decided last week at the Second Circuit) had no problem determining that the failure to pay proper wages was a violation of the law, however, whether the comment about not being paid leading the employee to quit in the face of the gun incident, was sufficient to be the basis of a retaliation was the more difficult question. There was no formal complaint to a state or federal agency and no written request to be paid. Even though the FLSA requires the filing of a complaint as a precondition to a retaliation claim, the court determined that a formal filing was not necessary, only notice to the employer.  Consequently, it is then a question of content and context whether the employee let his/her employer know of the problem.

In the Greathouse case, the court found that the employee’s comments were enough.

(Incidentally, we do not advise pointing a gun at your employees in this situation too.)

When it comes to sexual harassment retaliation situations, what does the employee have to do to be protected for having opposed the conduct?

The Sixth Circuit in EEOC v. New Breed Logistics, found that simply telling the supervisor who was doing the harassing to stop it was sufficient. The supervisor would regularly make sexually suggestive comments to a group of women employee who asked him to stop talking dirty to them. On one occasion he rubbed against one of the women under his supervision who immediately told him to stop touching her. He did not stop his verbal barrage, nor did he report it to his manager. The employees also did not raise the problem with other managers or with the human resources department.

When layoffs then were necessary, the supervisor identified the women who had asked him to stop his comments as the persons to be let go. While the persons making the decision were unaware of the harassment and of the objections raised to it, the role of the supervisor in the selection process was sufficient to hold the employer liable for retaliation if the employees had adequately opposed the harassment. The court found that simply telling the harasser to stop was sufficient to be protected. As the employer relied on the word of the harasser to choose the persons for layoff, the employer was liable for retaliation.

These cases tell us that greater scrutiny is needed when making employment decisions. Failing to look at the complaints or what is going on in the area where layoffs are occurring, may land an employer in big trouble. While we all think we can trust supervisors to report problems, it is important to verify that there are no existing problems or complaints that we don’t know.

Ignorance is not bliss; it can come with a hefty price tag.