Retaliation Claims in the Workplace A growing threat for employers May 20, 2015 What is Unlawful Retaliation? Life Alert Slapped With ® $7M Bias, Retaliation Suit A former employee… hit the company with a $7 million suit on Wednesday in New York state court claiming he was fired due to his age and his complaints to supervisors about the “cauldron of illegal work practices and sexual harassment” at the workplace. Retaliation is prohibited so that people can enjoy full access to the protection of the laws at work Retaliation by an employer against its employee is a statutory tort – an intentional wrongful act proscribed by law that causes injury to the employee. The employee can recover money damages, attorney’s fees, and court costs against the employer if he or she prevails in court. If an employee engages in some legally protected workplace activity (e.g., like blowing a whistle or filing a complaint) and then the employee is fired, or his or her job is changed in some important, negative way that the employee and other reasonable people take as a warning or a disincentive to complain, it’s retaliation. What can constitute retaliation? • Job reassignment or transfer to a less desirable position, work location, or shift • Reduction in pay or benefits, or other status demotion • Refusal to promote • Job suspension with or without pay • Termination of employment • Refusal to hire or re-hire • Can apply to ex-employees, spouses, relatives, and friends There is no law that states an employer must make all workplace decisions fairly or correctly, or even behave in a professional or polite manner. Trivial unpleasant conduct or minor workplace inconveniences are not retaliation • A supervisor's refusal to invite an employee to lunch is normally trivial and a non-actionable petty workplace slight • An employer's failure to investigate an employee's complaint cannot be considered retaliation against the employee • An employer's failure to grant an employee discretionary time-off awards is not retaliation • An employer exercising control to hand out legitimate discipline to a misbehaving employee is not retaliation The United States Equal Employment Opportunity Commission (EEOC), as well as employees, can file suits for retaliation Retaliation-Based Charges Filed with the EEOC (17-year statistical record) Retaliation-Based Charges Filed with the EEOC (17-year statistical record) 1997 -- 18,198 (23% of all charges) (2,519 in Florida) No reasonable cause found: 52.2%* 2014 -- 37,955 (43% of all charges**) (3,261 in Florida) No reasonable cause found: 62.9%* National increase: 109 % Florida increase: 29 % Retaliation-Based Charges Filed with the EEOC (17-year statistical record) In FY 2014 (Oct. 1, 2013, to Sept. 30, 2014) the percentage of EEOC charges alleging retaliation reached its highest amount ever, while the percentage of charges alleging race discrimination, the second most common allegation, remained steady at approximately 35 percent *Even if the EEOC finds no reasonable cause the employee can still file suit ** Highest percentage of all charge categories The top states for retaliation charges in 2014 Texas 3,708 Florida 3,261 California 3,088 Principal Federal Laws Prohibiting Workplace Retaliation • Title VII of the 1964 Civil Rights Act (including the Pregnancy Discrimination Act) • Section 1981 of the Civil Rights Act of 1866 • The Americans with Disabilities Act (ADA) • The Age Discrimination in Employment Act (ADEA) • The Fair Labor Standards Act (FLSA) and The Equal Pay Act (EPA) • The Genetic Information Nondiscrimination Act (GINA) • The Family and Medical Leave Act (FMLA) Principal Federal Laws Prohibiting Workplace Retaliation • • • • National Labor Relations Act (NLRA) The False Claims Act Employee Retirement Income Security Act (ERISA) Jury service statute 28 U.S.C. § 1875 (entitled “Protection of jurors’ employment”) • USERRA (the Uniformed Services Employment and Reemployment Rights Act of 1994) • Numerous federal "Whistleblower" laws, such as the SOX, the Consumer Product Safety Act, the Clean Air Act, OSHA, the Atomic Energy Act (over 90 federal statutes and regulations protect employees who report wrongdoing) Accused Of Firing Salesman For Reporting Kickbacks A former Covidien LLP sales rep says he was fired as payback for telling the FBI that the health care products company gave a physician $9,000 in kickbacks to keep his business, according to a whistleblower suit removed to California federal court on Thursday. Elements of a typical claim of retaliation under federal statutes “Opposi'on” Claims are brought by individuals who claim they were retaliated against because they opposed an unlawful practice. An employee does not need to file a formal complaint to receive this type of protection. “Par'cipa'on” Claims are brought by individuals claiming retaliation for filing a charge of discrimination, testifying, assisting or participating in any manner in an investigation, proceeding or hearing under an applicable statute. Elements of a typical claim of retaliation under federal statutes In both types of claims, the plaintiff must prove that he or she suffered an "adverse employment action" because of his or her protected activity. Under the U.S. Supreme Court's 2013 decision in University of Texas v. Nassar, the plaintiff must prove that retaliation was the "but for" cause of the adverse employment decision. Does the underlying complaint in an opposition case have to be legally valid? The employee does not need to prove that the underlying claim giving rise to the retaliation claim is valid. However, in extreme cases the nature of the acts complained of may be relevant to a court’s evaluation of whether the employee asserting the retaliation claim actually engaged in protected conduct. Thus, in Clark County School District v. Breeden, 532 U.S. 268 (2001), the U.S. Supreme Court upheld the dismissal of a retaliation claim where "no one could reasonably believe that the incident recounted [by the plaintiff] violated Title VII." Does the underlying complaint in an opposition case have to be legally valid? The report for one of the applicants disclosed that the applicant had once commented to a co-worker, “I hear making love to you is like making love to the Grand Canyon.” ... At the meeting respondent’s supervisor read the comment aloud, looked at respondent and stated, “I don’t know what that means.” ... The other employee then said, “Well, I’ll tell you later,” and both men chuckled. Retaliation under the Family and Medical Leave Act (FMLA) Under section 2615(a) of the FMLA, an employee may bring a retaliation claim in court, asserting that the employer discriminated against or her because of having engaged in an activity protected by the Act. The employee must prove that (1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment decision; and (3) the decision was casually related to a protected activity. These claims often come up in the context of maternity leave. Even when an employee requests maternity leave before being eligible to take it under the FMLA the request is protected activity for retaliation purposes. Principal Florida state laws prohibiting workplace retaliation Jury Duty Employees are entitled to take unpaid leave for jury service in a grand jury or trial jury. Employers who threaten or fire an employee for jury service are subject to criminal penalties and lawsuits for compensatory damages, punitive damages, and reasonable attorney fees and court costs under Fla. Stat. §40.271. Workers’ Compensa'on In Florida, an employer is not permitted to discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law. Fla. Stat. § 440.205 allows retaliation lawsuits. Principal Florida state laws prohibiting workplace retaliation The Florida Civil Rights Act Protects from retaliation all employees who have opposed an unlawful employment practice, or who have made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing. Whistleblowers The Florida private and public sector Whistleblower Acts protect private sector and government employees, respectively, from retaliation as a result of having exposed employer wrongdoing to appropriate agencies. Workers’ Compensation Retaliation Pursuant to section 440.205, Florida Statutes, entitled, "Coercion of Employees," " No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.” This statute, which the Legislature enacted in 1979, creates a statutory cause of action for a wrongful discharge in retaliation for an employee's pursuit of -- filing or threatening to file -- a workers' compensation claim. Thus, an employer who violates section 440.205 commits an intentional tort and becomes liable for lost wages and compensatory and punitive damages for emotional distress. Workers’ Compensation Retaliation In the 2004 case of Bruner v. GC-GW Inc., the Florida First District Court of Appeal stated: "We find that section 440.205 is not only intended to punish employers who discharge an employee for having filed a workers' compensation claim but is also intended to insure that employees do not have to fear reprisal from their employers when they file a workers' compensation claim." Retaliation claims are allowed even if no employment termination took place. The aggrieved employee can assert his claim in court without first having to proceed administratively before a state agency. The Florida Public Employee Whistleblower’s Act Section 112.3187, et seq., Florida Statutes, prohibits: • Taking retaliatory action against any state employee who reports to an appropriate agency violations of law on the part of a public employer or independent contractor that create a substantial and specific danger to the public’s health, safety, or welfare • Taking retaliatory action against any person who discloses information to an appropriate agency alleging improper use of governmental office, gross waste of funds, or any other abuse or gross neglect of duty on the part of an agency, public officer, or employee The Florida Private Sector Whistleblower Act Section 448.102, Florida Statutes, provides that an employer may not take any retaliatory personnel action against an employee because the employee has: • (1) Disclosed, or threatened to disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation. However, this subsection does not apply unless the employee has, in writing, brought the activity, policy, or practice to the attention of a supervisor or the employer and has afforded the employer a reasonable opportunity to correct the activity, policy, or practice. • (2) Provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer. • (3) Objected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation. What should employers do to prevent retaliation claims, or to be in a better defensive position? a. Establish a specific policy against retaliation in the workplace -- and enforce it. b. Create a working environment where employees feel that they can freely and openly alert management to potential problems and participate in investigations without fear of suffering adverse consequences for doing so. c. Communicate with every complaining employee that you are taking his or her complaint seriously. d. Keep all internal and external complaints confidential (the fewer people that know about it the better). e. Document everything you do to prevent retaliation. Send the complaining employee a letter confirming what you have told him or her about retaliation. f. If you have to discipline or terminate any employee who has filed a complaint, make sure that you have a clear and detailed written record that can prove that retaliation was not the reason for the adverse employment action. Angel Castillo, Jr. DLD Lawyers 150 Alhambra Circle, PH Coral Gables, Florida 33134-4505 Email: [email protected] Tel. (305) 443-4850
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