How to Prevent the No 1 Employee Complaint

How to Prevent the No. 1 Employee Complaint: Retaliation Deborah S. Adams George E. Yund Frost Brown Todd LLC Cincinnati, Ohio James C. Dale Stoel Rives LLP Boise, Idaho 13 th Annual Labor and Employment Law Advanced Practices Symposium

Retaliation is related to nature and instinct, not to law. Law, by definition, cannot obey the same rules as nature. Albert Camus 13 th Annual Labor and Employment Law Advanced Practices Symposium

2016 Retaliation Charges: 42, 018 (45. 9%) 2015 Retaliation Charges: 39, 757 (44. 5%) 13 th Annual Labor and Employment Law Advanced Practices Symposium

Prevalence of Retaliation Claims • Bigger recoveries • Resonate with juries • Linkage to other claims (especially harassment) 13 th Annual Labor and Employment Law Advanced Practices Symposium

Sources of Retaliation Claims Federal Whistleblower Laws Federal Employment Laws State Whistleblower Laws State Employment Laws Qui Tam 13 th Annual Labor and Employment Law Advanced Practices Symposium

Elements of Retaliation Claims Protected Activity Adverse Action Causal Connection 13 th Annual Labor and Employment Law Advanced Practices Symposium

Protected Activity 13 th Annual Labor and Employment Law Advanced Practices Symposium

PARTICIPATION ACTIVITY (Broad Protection) OPPOSITION ACTIVITY (Opposition must be reasonable – in concept and practice) 13 th Annual Labor and Employment Law Advanced Practices Symposium

Examples of Participation n n n Filing an EEOC charge Serving as a witness in support of another’s EEOC charge Driving a charging party to the EEOC Filing a lawsuit Submitting an affidavit in support of a claim or lawsuit Filing internal complaint? • EEOC: Yes • Courts: Not yet 13 th Annual Labor and Employment Law Advanced Practices Symposium

Examples of Opposition to a Real or Perceived Violation n n n Internal EEO or other complaints (OSHA, FLSA, etc. ) Participating in an internal EEO or other investigation Refusing to obey an order reasonably believed to be discriminatory or unlawful Advising an employee on EEO (or other) compliance Resisting sexual advances or intervening to protect others Requesting disability or religious accommodation 13 th Annual Labor and Employment Law Advanced Practices Symposium

Adverse Action 13 th Annual Labor and Employment Law Advanced Practices Symposium

Examples of Adverse Action or “Any Action That Might Deter a Reasonable Person From Engaging in Protected Activity” n n Refusal to hire, denial of job benefits or opportunities, denial of promotion, demotion, suspension, discharge, disciplinary actions, bad evaluations, changing work schedules Filing counterclaims, contesting unemployment benefits, without a factual, legitimate reason to do so and/or contrary to usual practice 13 th Annual Labor and Employment Law Advanced Practices Symposium

Causal Connection 13 th Annual Labor and Employment Law Advanced Practices Symposium

Causal Connection: Some Indicators Direct Evidence n Temporal Proximity n Disparate Treatment n 13 th Annual Labor and Employment Law Advanced Practices Symposium

BEWARE THE CAT’S PAW Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011) 13 th Annual Labor and Employment Law Advanced Practices Symposium

WHO CAN SUE? EVEN PEOPLE WHO ENGAGED IN NO PROTECTED ACTIVITY BUT LOVE SOMEONE WHO DID AND PAID FOR IT. Thompson v. North American Stainless, 562 U. S. 170 (2011) 13 th Annual Labor and Employment Law Advanced Practices Symposium

RETALIATION: NOT JUST FOR THE WORKPLACE ANYMORE! Burlington N & Santa Fe Ry Co. v. White, 548 U. S. 53 (2006) 13 th Annual Labor and Employment Law Advanced Practices Symposium

What to Do – Practical Advice or “Promising Practices” n n n n Adopt policies Be aware Review discipline decisions Counsel managers Depersonalize it Beware e-mail trail Beware code words Follow up 13 th Annual Labor and Employment Law Advanced Practices Symposium

Hypo 1 CEO of Bank receives notice that her bank will be subject to a routine audit conducted by the Office of the Comptroller of the Currency (“OCC”). CEO instructs the Bank’s CFO to be the OCC contact as he had in the past, to cooperate fully and provide the OCC investigators any and all documents and information they request. The audit occurs June 1 -3, 2016. The CEO is not involved. The CFO reports to the CEO that the audit had gone well. On August 17, 2016, the OCC notified the Bank of several areas of deficiency including the record keeping and method of calculating interest on certain loans to area businesses. In reviewing the OCC’s report, the CEO notes certain areas of underperformance on the CFO’s part, which she had addressed with him previously on a few occasions without reducing anything to writing. Angered by the poor OCC report and anxious about the Board’s reaction to it, she terminated the CFO’s employment. The CFO sues claiming retaliation under FIRREA (Financial Institutions Reform, Recovery and Enforcement Act of 1989). Whose lawyer would you rather be? 13 th Annual Labor and Employment Law Advanced Practices Symposium

Hypo 2 Lab tech, Ima Neuro, employed by lab testing company (Testube Corp. ), is assigned to work on site at Testube’s customer, Pharmonster, Inc. Ima worked in a stand-alone lab equipped and supervised by Testube Corp. She had worked there for four years. Pharmonster asked Testube Corp. to inventory the chemical products present in its laboratory. Testube assigned Ima to inventory all chemicals in the lab and to provide the list to Pharmonster. In reviewing the labels of the various chemicals used in the lab, Ima became upset. She stormed on to the facility floor, outside the Testube lab, screaming that she was being poisoned and that if she discovered that the chemicals had caused or exacerbated her psoriasis she was going to sue the “______” out of Testube and Pharmonster’s Environmental Chief conducted an audit and determined that all exposures were within permissible limits. The following week, in conducting a lab test with an infrequently used chemical, Ima and a coworker complained of burning eyes and restricted breathing and left the lab to go outside. They requested personal ventilators and improved lab ventilation. Testube Corp. conducted its own environmental audit that established the lab atmosphere was within permissible limits and that personal respirators were not required. Ima began an internal campaign of e-mails to executives of Pharmonster demanding that employees of Testube be given respirators and that the ventilation system at the facility be improved. Testube fired Ima sues Testube. Whose lawyer would you rather be? 13 th Annual Labor and Employment Law Advanced Practices Symposium

Hypo 3 Rod Hansom, Sales Manager at Sellum Inc. , conducted a long-term consensual sexual affair with his subordinate, sales representative Buffy Evensong. Over the years, they had shared personal information, including that Evensong’s cousin (Una Luminar) was an undocumented worker employed by a competitor, Matchum, Inc. Hansom proved vulnerable to the merciless march of time, losing hair while gaining weight and ear hair. Evensong, tired of Hansom, ended their relationship in early 2015. Hansom pressured Evensong to continue the relationship but eventually gave up. Hansom’s sales numbers began to decline. Sellum placed him on a corrective action plan in early 2016. Hansom reported Matchum Inc. to ICE as an employer of undocumented aliens, hoping to disrupt Sellum’s activities and regain market share. As a result, Evensong’s cousin, Una Luminar, was deported. Luminar applies for a visa and returns to the USA three years later. Her state has a six year statute of limitations on discrimination and retaliation claims. She sues Hansom for retaliation. Whose lawyer would you rather be? 13 th Annual Labor and Employment Law Advanced Practices Symposium

How to Prevent the No. 1 Employee Complaint: Retaliation Deborah S. Adams George E. Yund Frost Brown Todd LLC Cincinnati, Ohio James C. Dale Stoel Rives LLP Boise, Idaho 13 th Annual Labor and Employment Law Advanced Practices Symposium