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.  

For 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?

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.