Enquiron HR and Employment Law HELPLINE Services No Fear: Get it Straight; Don’t Retaliate

March 17, 2014

Truth Fisher Attorney Advisors Law Group, LLP

Disclaimer

The material presented in this presentation represents the views of the

speaker and is not intended to provide legal or tax advice as to any of the

subjects mentioned, but rather is presented for general information only. You

should not rely on this general information to address specific circumstances.

You should consult knowledgeable legal counsel or other knowledgeable

experts as to any legal or tax questions you may have.

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Presentation Speaker

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Truth Fisher, Esq. Advisors Law Group, LLP

Ms. Fisher’s employment law experience includes: – Defending corporations, organizations and directors and

officers – Handling claims ranging from wage and hour violations to

harassment, retaliation and other alleged workplace misconduct

– Counseling employers on best workplace practices

Ms. Fisher is licensed to practice law in the states of Florida and California. She is a frequent legal writer and contributor for the Miami Herald and South Florida's Daily Business Review.

No Fear: Get it Straight; Don’t Retaliate

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Why employers should have “No Fear” - Recognizing potential retaliatory situations - Knowledge is power Why employers need to “Get it Straight”

- Step-by-step analysis of a retaliation claim - Preparing a defense

Why employers should not retaliate - Dramatic rise in retaliation claims - The money factor - Practical measures to avoid a retaliation claim

Scope of Presentation

Recognizing Retaliation with Real Life Examples

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SCENE ONE: Sarah’s Sexual Harassment Situation

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- Sarah has a brand new job and a brand new boyfriend. Her new boyfriend is Jake and Jake also happens to be her new boss.

- Sarah’s career with her new job flourishes, but her personal relationship with Jake fizzles.

- Sarah breaks up with Jake and tells him “let’s just be friends.”

- Jake tells Sarah that he wants to be “friends with benefits” and in return he will ensure she continues to be successful in her new job.

- Sarah is appalled and complains about Jake to HR.

EMPLOYEE FACTS

SCENE ONE: Sarah’s Sexual Harassment Situation

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SCENE ONE: Sarah’s Sexual Harassment Situation

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SCENE ONE: Sarah’s Sexual Harassment Situation

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SCENE ONE: Sarah’s Sexual Harassment Situation

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SCENE TWO: Frank’s FMLA Fall-out

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- Frank is an extremely hard worker and he is the lead sales producer in his company’s sales department.

- Frank’s wife is having a baby and Frank asks his manager about taking some time off.

EMPLOYEE FACTS

SCENE TWO: Frank’s FMLA Fall-out

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SCENE TWO: Frank’s FMLA Fall-out

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SCENE TWO: Frank’s FMLA Fall-out

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SCENE TWO: Frank’s FMLA Fall-out

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SCENE THREE: Tina’s Twitter Tantrum

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- Tina is a mid-level advertising executive who recently asked upper management for a wage increase.

- Before management responded to her request, Tina learned that

several lower-ranking employees were being paid a much higher salary than hers.

- Outraged, Tina tweeted a series of unflattering remarks about her employer via her company’s Twitter account.

EMPLOYEE FACTS

SCENE THREE: Tina’s Twitter Tantrum

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SCENE THREE: Tina’s Twitter Tantrum

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SCENE THREE: Tina’s Twitter Tantrum

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SCENE THREE: Tina’s Twitter Tantrum

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Trends in Types of Retaliation Claims

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- Discrimination Complaints

- Family Medical Leave Laws

- Social Media Usage

Trends in Types of Retaliation Claims Discrimination Complaints

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TITLE VII (Civil Rights Act)

- Most common source for retaliation complaints

- The statute’s core anti-retaliation provision:

- It shall be an unlawful employment practice for an employer to discriminate against any of its employees or applicants for employment because he or she has opposed a discriminatory practice or because he or she has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.

Trends in Types of Retaliation Claims Discrimination Complaints

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Continuing Application of Title VII’s Anti-Retaliation Provisions

- Americans with Disabilities Act retaliation provisions

- Age Discrimination in Employment Act retaliation provisions

- State civil rights acts

Trends in Types of Retaliation Claims Family Medical Leave Laws

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An employer is prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right. An employer is prohibited from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise any FMLA right. An employer is prohibited from discharging or in any other way discriminating against any person, whether or not an employee, for opposing or complaining about any unlawful practice under the FMLA.

Trends in Types of Retaliation Claims Family Medical Leave Laws

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Individual Liability? All persons, whether or not employers, are prohibited from discharging or in any other way discriminating against any person, whether or not an employee, because that person has — Filed any charge, has instituted, or caused to be instituted, any proceeding under or related to the FMLA;

Given, or is about to give, any information in connection with an inquiry or proceeding relating to any right under the FMLA; or Testified, or is about to testify, in any inquiry or proceeding relating to a right under the FMLA

Trends in Types of Retaliation Claims Social Media Usage

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Extension of the NLRA to Social Media Usage - Section 7 of the National Labor Relations Act (NLRA) protects the

rights of employees to act together in “Concerted Activities” to try to improve pay and working conditions, or fix job related problems. This is true even if employees are not part of a union.

- This protection extends to certain work-related conversations conducted on social media, such as Facebook and Twitter.

Trends in Types of Retaliation Claims Social Media Usage

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NLRA’s general definition of “concerted” activity involves more than two employees acting together. However, the NLRA can also protect one employee if his or her actions benefit more than just him or herself.

Step-by-Step Analysis of a Retaliation Claim

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Step 1 • Retaliation

Defined

Step 2 • What

constitutes a “Complaint” vs. a “Gripe”?

Step 3 • How did the

employee respond?

Step 4 • Was adverse

employment action taken?

Step-by-Step Analysis of a Retaliation Claim Definition of Retaliation

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Typical Prima Facie Case of Retaliation - Employee engages in a protected activity - Employer is aware of the activity - Employer takes adverse employment action against the employee - A causal connection exists between the adverse employment action and the protected activity

Step-by-Step Analysis of a Retaliation Claim Protected Activity – Complaint vs Gripe

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Examples of Legitimate Complaints and Protected Activities

- Email complaint to HR about harassing and discriminatory workplace behavior - Verbal complaint to CEO about manager’s inappropriate conduct - Co-worker participation in an internal investigation - Employee’s refusal to carry out management’s orders to only hire “young whippersnappers”

Step-by-Step Analysis of a Retaliation Claim Protected Activity – Complaint vs Gripe

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Examples of Personal Gripes

- Employee complaining about not getting a window or corner office

- Employee’s Facebook posts stating, “I hate my boss…she is so mean!”

- Anonymous complaint to HR that a co-worker parties too much and appears tipsy

- Employee takes a personal leave of absence to stay at home with son during his spring break

Step-by-Step Analysis of a Retaliation Claim Employer Response

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The Silent Killer An employer’s lack of response can be fatal to defending a

retaliation claim.

The Good-Natured Manager A manager who listens to an employee’s complaints and

attempts to reassure and comfort the employee that “it’ll all get better,” but then it doesn’t.

The Eager Beaver An employer who immediately undertakes an internal

investigation and takes prompt remedial action is in compliance with statutory obligations

Step-by-Step Analysis of a Retaliation Claim What Constitutes Adverse Employment Action?

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General standard: The action must affect the terms, conditions, or benefits of

employment

More stringent standard: The action must affect “ultimate employment decisions” such as

hiring, firing, and compensation

Most stringent standard: EEOC Guidance – action that is based on a retaliatory motive that

is reasonably likely to deter the employee from engaging in protected activity

Step-by-Step Analysis of a Retaliation Claim What Constitutes Adverse Employment Action?

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Examples of Retaliatory Adverse Employment Action

Employee suspended for 10 days without pay after reporting that her manager was sexually harassing her

Employee transferred to graveyard shift and demoted from foreman to forklift operator after he testified against the employer in an OSHA investigation

Employee is heavily scrutinized and micro-managed after filing a workers’ compensation claim

Step-by-Step Analysis of a Retaliation Claim What Constitutes Adverse Employment Action?

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Ostracism?

“Papering” an employee’s personnel file?

Transfer to a less prestigious position?

Dramatic Rise in Retaliation Claims

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Why Do We Care About Retaliation Claims? Expensive to defend - attorneys’ fees, emotional distress damages, back pay, punitive damages Vicarious liability

- employer is on the hook for employees’ retaliatory actions even if the employer has an anti-retaliation policy Individual liability - EEOC’s continued focus on retaliation claims

Dramatic Rise in Retaliation Claims

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Notable Statistics - Since 1997, the number and

percentage of retaliation claims (compared to other EEOC claims) has consistently risen

- In FY 2012, the EEOC reported that 37,836 (38.1%) of the total 99,412 charges were for retaliation

- In FY 2012, $177 million were awarded in 7,422 merit resolutions and 3,484 settlements

Dramatic Rise in Retaliation Claims

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The EEOC’s Aggressive Pursuit - In 2013, 30% of all claims pursued by the EEOC were retaliation claims

- Under the Obama Administration, the EEOC revamped itself

operationally and has gone after private sector employers resulting in the highest monetary recovery record ever in 2013 - $372.1 million

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Proactive Measures to Avoid a Claim

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Insist on a Respectful Workplace

Key to avoiding retaliation claim is avoiding the underlying conduct Do not gossip or divulge details about the allegations to those who are not in a “need to know” capacity Train managers to control natural instinct to retaliate when attacked by an accusation (even if it is false)

Proactive Measures to Avoid a Claim

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Follow Your Own Policies and Procedures

BE CONSISTENT! - Inconsistent treatment of different employees can lead to retaliation

claims - Inconsistent treatment of even the same employee can lead to

retaliation claims - Inconsistent treatment makes it easy for a jury to make comparisons,

which can lead to a disastrous outcome for an employer trying to defend a retaliation lawsuit

Proactive Measures to Avoid a Claim

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Implement a Clearly Communicated Complaint Process

1. Designate member(s) of management who will intake grievances and complaints

2. Outline the employer’s response procedures 3. Develop an action plan for preventing future misconduct

Proactive Measures to Avoid a Claim

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Follow the Golden Rule in Employment

DOCUMENT! DOCUMENT! DOCUMENT! DOCUMENT!

Proactive Measures to Avoid a Claim

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Be Honest in Evaluating and Disciplining Employees

- Performance evaluations, wage increases, and promotions

- Job transfers

- Job references

No Fear: Get it Straight; Don’t Retaliate

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What About the Employer’s Rights?

If an employer refrains from retaliating against an employee and gets its policies and implementation of such policies straight, then the employer should be confident and have no fear in making legitimate employment decisions when it comes to all members of its workforce.

Questions & Answers

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Truth Fisher, Esq. Advisors Law Group, LLP

Thank you for attending.

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