Numbers everywhere

Every once in a while, it’s worth taking a look at statistics in the employment law arena to get a sense of trends with the law and what employers should focus on.For those that have been paying attention, retaliation claims are now the most filed type of charge filed at the Equal Employment Opportunity Committee nationwide.In fiscal year 2012 (the last publicly available data), there were 99,412 charges filed (down from a peak of 99,922 in 2010).  Of those, 38.1% of charges were retaliation-based — up from just 22.6 percent in 1997.

Race discrimination claims — while up in terms of raw numbers from 15 years prior — are actually at their lowest levels percentage-wise in the last 15 years.  Instead, national origin claims and religion claims have each risen a few percentage points over the last 15 years — though even national origin claims seemed to have peaked in 2009.

Not surprisingly, in light of changes that were made to the Americans with Disabilities Act in 2009, disability discrimination claims are up sharply the last few years from 14,893 claims in 2005 to 26,379 claims in 2012.

Equal Pay Act claims — which some people projected would increase dramatically after the Ledbetter Fair Pay Act in 2009 — have remained fairly flat the last few years.  Up a little, but just by a few dozen.  Not enough to really move the needle on such claims.

In Connecticut, unfortunately, the Commission on Human Rights and Opportunities (CHRO) has had issues with its computer system and hasn’t been able to update its statistics since 2010. 

(The EEOC does keep some statistics on claims are filed in Connecticut with the EEOC itself, but because those claims are typically investigated and handled through the CHRO, the EEOC statistics are really incomplete.)

But the CHRO statistics are hopefully coming soon.

Continue Reading Employment Law Statistics Tell Part of a Story; Still Waiting for CHRO

After the U.S. Supreme Court’s decision in Garcetti several years ago, there was a lot of chatter about whether public employees still had substantive First Amendment free speech rights.

And for a short while, the trend did seem to indicate that speech that related to an employee’s “official job duties” was to be construed

It’s always a little tricky to determine exactly how lower courts will apply a rule of law that develops from a U.S. Supreme Court.

Take the case of University of Texas Southwestern Medical Center v. Nassar, decided in June, which held that a “but for” standard (i.e., that an employer would not have taken

With all the talk about Edward Snowden, the notion of whistleblowers is back front and center in the public eye.  (Put aside for the moment that Snowden is not likely a “whistleblower” in the legal sense.)

On a federal level, whistleblower claims are mostly covered by the False Claims Act.  But at a state level,

U.S. Supreme Court

Back in 1994 (in a case Levy v. Commission on Human Rights & Opportunities, for the lawyers out there) the Appellate Court in Connecticut made a seemingly innocuous pronouncement: “We look to federal employment discrimination law for guidance in enforcing our own antidiscrimination statute.”

Why? Because back then,

In another big win for employers today, the Supreme Court ruled that Title VII retaliation cases must be proved by a “but for” standard of proof, not a lower standard that had been used in various courts before.

At issue in the University of Texas Southwestern Medical Center v. Nassar case is the following question

With apologies to P!nk (and her hit, “Just Give Me a Reason”), a new court decision gives new meaning to the phrase. 

Photo Courtesy Wikimedia Commons

Before we get to that, longtime readers of the blog will no doubt be familiar with the burden-shifting analysis that courts use to analyze discrimination

Reading the headline, I’m sure a few of you rolled your eyes.  Dodd-Frank? Sarbanes-Oxley? Those statutes are seen as dull and tedious.  But a new federal court decision in Connecticut should start to change that, and it has implications for employers nationwide. 

The case is Kramer v. Trans-Lux, which you can download here. It addressed an employer’s motion to dismiss a claim of whistleblower retaliation under the Dodd-Frank Act. Ultimately, the court allowed the employee’s claim to proceed, noting that under the facts alleged, the employee has a viable claim.

What was the case about?  According to the applicable complaint (which the court assumed as true for purposes of deciding the motion), the plaintiff was a Vice-President of Human Resources with responsibility for ensuring that the company’s benefit plans were in compliance with applicable law.  He claimed that he expressed concern about the makeup and number of people on the pension plan committee and that he did not believe the company was adhering to its pension plan. 

He claimed that he contacted the audit committee and, importantly, claimed that he sent a letter to the SEC regarding the company’s failure to submit a 2009 amendment to the board of directors.  He then claimed that he was reprimanded and the subject of an investigation. Shortly thereafter, he was stripped of his responsibilities and later terminated.
Continue Reading A New Whistleblower Retaliation Statute Grows Up: Dodd-Frank is the new Sarbanes-Oxley.

I’ll be the first to admit that the words “Sarbanes-Oxley Act” are likely to induce a big collective yawn from many of you out there.  Even the acronym “SOX” doesn’t liven things up.  (Then there are people, like Doug Cornelius at the Compliance Building blog who eat this stuff up.)

But here’s what you need to know as an employer: Terminated employees can bring a whistleblowing claim under SOX without using the words “fraud” but just by complaining about what they perceive to be as a violation of federal law.  Indeed, the caselaw on these claims is starting to mirror the pattern of retaliation claims — and we all know how notoriously difficult it is to defend against those types of claims.

SOX, not socks.

A relative new case out of the federal court in Connecticut illustrates this issue.  In Barker v. UBS AG (download here), the employer’s motion for summary judgment was denied on a SOX whistleblower claim. 

What does a terminated employee (who, the employer contends, was terminated during a reduction in force) have to show to get her case to trial? Initially, to establish a prima facie case, the plaintiff must demonstrate by a preponderance of the evidence that: (1) she engaged in protected activity; (2) the employer knew of the protected activity; (3) she suffered an unfavorable personnel action; and (4) circumstances exist to suggest that the protected activity was a contributing factor to the unfavorable action.

If the plaintiff meets her burden, the employer can then avoid liability if it can prove by clear and convincing evidence [a much higher standard of proof] that it would have taken the same personnel action in the absence of the protected activity.

And what is “protected activity”? This is where things differ slightly from retaliation claims. Here, as the court explains it.  the employee must she “had both a subjective belief and an objectively reasonable belief that the conduct [s]he complained of constituted a violation of relevant law” and  the employee’s communications “must definitively and specifically relate to [one] of the listed categories of fraud or securities violations” in SOX.

Continue Reading Pull Up Your SOX: The New Whistleblowing Claim Grows Up