WORKPLACE RETALIATION: DON’T SHOOT THE COMPLAINER

1. WORKPLACE RETALIATION: DON’T SHOOT THE COMPLAINER Colleen M. Regan, Esq. McGuireWoods, LLP Los Angeles, CA

2. Workplace Retaliation • What is it? • How does it occur? • The employee’s perspective • The employer’s perspective • Recent cases

3. To retaliate: • Get even • Get back at • Take revenge for a perceived wrong • Avenge • To return “like for like,” especially “evil for evil”

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

5. ILLEGAL Retaliation in Employment An employee suffers --illegal retaliation when he or she is --harmed as a consequence of exercising a -- legally protected right

6. ILLEGAL Retaliation in Employment • Violate a work rule, expect to be punished • Engage in protected conduct, you cannot legally be punished

7. 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

8. 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

9. 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.

10. “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

11. “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”

12. “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

13. “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

14. 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

15. ADVERSE ACTION (AA) • Does not necessarily have to be conduct affecting the employee’s work life – can be conduct that would cause a reasonable employeeto refrain from engaging in the PA • Has the likely effect of restraining the exercise of PA, and causes harm

16. AA in RESPONSEtoPA • 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

17. 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

18. Retaliatory motive • Does retaliation have to be the onlymotivating factor? NO – usually, just “a motivating factor” in deciding to take AA against the employee

19. 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

20. Employer’s 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.

21. Employee’s 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

22. Employee’s 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

23. Employee’s 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

24. Employer’s 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

25. Employer’s Perspective • Who likes complaints? • Once a discrimination or harassment claim is made, it must be investigated • Time-consuming • Distracting • Expensive

26. Employer’s 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”

27. 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

28. 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.

29. 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.

30. 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.

31. 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.

32. Examples of unlawful workplace retaliation • Frank complains that his supervisor is sexually harassing him. In response, the company changes Frank’s 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.

33. 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

34. RECENT CASES • Yanowitz v. L’OrealUSA, 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

35. 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

36. 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

37. In California, TORTIOUS retaliatory discharge • Not everylegal 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

38. How to eliminate workplace retaliation: • Education of supervisors goes a long way to prevent unnecessary claims • Communication engenders trust • Thank you for joining us!