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Pa chamber 2012 annual HR CONFERENCE. Dealing with Retaliation Claims: Preventing & Responding To Retaliation Claims. Schaun D. Henry 717-237-5346 shenry@mwn.com. retaliation. Taking adverse action against an employee because of his exercise of a protected right. TITLE VII.
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Pa chamber 2012 annual HR CONFERENCE Dealing with Retaliation Claims:Preventing & RespondingTo Retaliation Claims Schaun D. Henry 717-237-5346 shenry@mwn.com
retaliation • Taking adverse action against an employee because of his exercise of a protected right
TITLE VII • Title VII of the Civil Rights Act of 1964 (the "Act") prohibits an employer from retaliating against an employee who has "made a charge, testified, assisted or participated in" any charge of unlawful discrimination under the Act.
Introduction: • RETALIATION: Claims on the Rise 1992 15.3% 2006 29.8% 2007 32.3% 2008 34.3% 2009 36.0% 2010 36.3%
Introduction: • Statistical rise includes claims filed under all statutes including: • Race • Sex • National Origin • Religion • Age • Disability • EPA
Introduction: • The numbers quoted do not include claims under statutes like: • NLRA • State Whistle Blower Laws • Workers' Compensation
Prima facie retaliation case • Protected Activity • What constitutes protected activity? • Adverse Actions • Ensure they are attributable to misconduct • Causal Connections • Were others treated differently for similar offenses? • Are there records to support all actions?
Causal connection • Temporal Proximity • How long is long enough? • vs. timely action
In the wake of burlington northern: • Lowered threshold for "Adverse Action" • We must impress upon managers the need for record keeping • Warnings and counseling may be enough to trigger an Adverse Action
Defending retaliation • Direct evidence claims • Most retaliation claims are based on circumstantial evidence • Your records must convince a jury that we would have acted this way regardless • Difficult to do because "getting back at someone" is understood by all
Is an internal complaint covered?Crawford v. Metro Govt. of Nashville • Can employee claim Title VII protection for cooperating with employer's investigator? • Court ruled the term "Oppose" includes responding to questions • All three 2008 claims found in favor of employee
Third party retaliation claims • Courts have tackled the troublesome issue of third party retaliation claims • One employee complains or otherwise champions the rights of others • Suffers an adverse action
Third party claimsThompson v. N.A. Stainless • Plaintiff brings claim on own behalf based on protected activity of others • Employee claims retaliation after fiancé filed a charge • How do you view the outcome?
Third party claimsThompson v. N.A. Stainless • Meets the purpose of statute's retaliation provisions • Broadened the pool of claimants • Limited success and relies on the depth of the involvement
Three common Retaliation Scenarios • Good reason for action, but direct evidence • Did the employer know of the so-called evidence? • Circumstances create inference of unlawful act • Employee claims protected activity; employer argues activity not protected • Some activities simply not protected; difference in opinion and Whistle Blower law not applicable to private entities
Risk / Reward: • Are attorneys emboldened by attorneys' fees and costs provisions in Whistle Blower claims? • What role do policies and training play in defense?: Shows a lack of intent • How do we treat claims differently when employee is still working? • Avoiding salting claims
Practical Tips: • Clear path for internal reporting of claims • Keep supervisors out of investigation, it's not their strength • Question sudden changes in evaluations of skill set • Require clear and complete documentation for discipline
Practical Tips: • Caution for adverse action of those who have complained • Managing the E-mail War • (E=Evil, eternal, embarrassing evidence) • Prompt written responses from Human Resources to every tiny complaint • Can Human Resources' over-management of complaint start to look nefarious?
Practical tips when currently facing a retaliation claim • Take special care to ensure that similar rule violations by others receive the same punishment; • Inform key managers in each department of the claim so they can help avoid idle talk; • You cannot stop employees from talking about the matter