ESCAPING THE RETALIATION MERRY-GO-ROUND · in preventing and responding to whistleblower...

2018 LABOR AND EMPLOYMENT COUNSEL EXCLUSIVE

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 32-1

ESCAPING THE RETALIATION MERRY-GO-ROUND

Cynthia A. Bremer (Moderator) – Ogletree Deakins (Minneapolis)

Paul Lancaster Adams – Ogletree Deakins (Philadelphia)

Aisha Christian – KIPP: NYC

W. Scott Hardy – Ogletree Deakins (Pittsburgh)



Escaping the Retaliation Merry-Go-Round

by Cynthia A. Bremer, Paul Lancaster Adams, and W. Scott Hardy

I. INTRODUCTION

Retaliation continues to be a leading source of concern for employers across the country. For the eighth consecutive year, retaliation claims are the leading category of charges before the Equal Employment Opportunity Commission (EEOC). In 2017 alone, retaliation claims comprised 48.8% of all charges with 41,097 separate retaliation claims before the EEOC. Moreover, 73.6% of federal employment discrimination claims filed in 2017 involve some kind of retaliation charge and 55% of all employment claims in general involve a retaliation claim.

The purpose of this paper is to provide you with surefire strategies for handling unusually tricky retaliation issues—including claims from current employees and traps for the unwary during litigation—and tips for anticipating and preventing common missteps by HR, so the cycle of claims can stop. Too often it is the case that retaliation becomes the “tail that wags the dog.” An otherwise defensible claim which can be readily explained on the facts and well-defended under the law is run aground by an overly zealous manager who takes it upon himself to address the situation with a complaining employee. Even well-meaning actions taken during the pendency of an employee complaint can be made to look sinister in the course of a plaintiff’s description of retaliation.

Due to the potential of costly civil and/or criminal liability, employers should be proactive in preventing and responding to whistleblower retaliation claims by encouraging a positive compliance culture, conducting effective investigations, and avoiding and defending against claims of retaliation.

In the course of this paper, you will be provided with background on Title-VII and other statutes having anti-retaliation provisions, a sampling of recent high verdicts in retaliation cases, and practical advice for how to grapple with these tricky workplace issues.

II. THE ANTI-DISCRIMINATION STATUTES

Title VII makes it “an unlawful employment practice for an employer to discriminate against any of his employees… because he has opposed any practice made an unlawful employment practice… or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing…”1 Similarly, the Age Discrimination in Employment Act provides that: “No person shall discriminate against any individual because such has opposed any act or practice made unlawful by this chapter.”2 The Americans with Disabilities Act further provides that it is unlawful to: “coerce, intimidate threaten or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.”3 The chief question in many retaliation cases is whether an employee has actually engaged in “protected activity” giving rise to protection from retaliation.

Protected Activity focuses on two main clauses: opposition and participation. The distinction between the two is important because the level of statutory protection can differ. The “opposition” clause can provide a broader protection than “participation” clause by including



conduct outside EEOC charges and court proceedings such as informal, internal discrimination complaints. Unlike the “participation” clause, protected “opposition” must be based on the employees’ reasonable, good-faith belief that they are opposing an unlawful employment practice.4

The practical differences in employee protection arising from the two clauses may be summarized as follows. Employees engaged in activities in “opposition” to an allegedly unlawful practice may be terminated if their complaint is not based on a good faith, reasonable belief that the employer’s activity was prohibited by statute and brought in a reasonable manner. This includes complaints of general workplace activity not related to discrimination, complaints brought which involve gratuitous disclosure of a company’s confidential information, and complaints by employees who refuse to perform reasonably assigned work. This may even include complaints where an employer has a good faith belief that comments made in the course of its internal investigation of a complaint were false and fabricated. On the other hand, employees who are actively “participating” in the administrative (e.g., EEOC) or judicial (in court) process may not generally be terminated even if their participation involves allegations made falsely or in bad faith or gratuitous disclosures of confidential company information.

III. A SAMPLING OF OTHER FEDERAL ANTI-RETALIATION STATUES

A. The Sarbanes-Oxley Act and Dodd-Frank

Congress enacted the Sarbanes-Oxley Act (“Sarbanes-Oxley” in 2002 in response to a series of corporate financial scandals.5 Sarbanes-Oxley is wide-ranging legislation intended to reform corporate accounting oversight, and it contains a whistleblower provision that prohibits retaliation against employees who report conduct reasonably believed to violate: (1) federal criminal law provisions prohibiting mail, wire, bank, or securities fraud; (2) Securities and Exchange Commission (“SEC”) rules and regulations; or (3) federal laws related to fraud against shareholders.6 Covered employers under Sarbanes-Oxley include publicly traded companies and subsidiaries whose financial information is included in consolidated financial statements.7

In 2010, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”).8 Among other things, Dodd-Frank amended the whistleblower provisions of Sarbanes-Oxley, strengthening protections for whistleblowers.9

Dodd-Frank offers whistleblowers tremendous financial incentives10 to go directly to the SEC with their complaints rather than use internal mechanisms in which companies may have heavily invested. Dodd-Frank amended Sarbanes-Oxley in several ways, including broadening the statute of limitations from 90 days to 180 days and creating a right to jury trial in district court for employees claiming retaliation.11 Dodd-Frank also increased the damages recoverable by whistleblowers for retaliation claims to reinstatement with no loss in seniority, double back pay, and litigation costs including expert and attorneys’ fees.

Recently, the United States Supreme Court held that whistleblower protections under Sarbanes-Oxley extend to employees of private contractors and subcontractors serving public companies.12 In Lawson v FMR LLC, two former employees brought retaliation lawsuits against their former employer, which was a subcontractor of Fidelity Investments, a publicly traded company.13 Both employees had reported to the Occupational Safety and Health Administration (“OSHA”) that they believed Fidelity had violated certain SEC rules relating to fraud against shareholders.14 Shortly after these complaints, one of the employees was discharged for



unsatisfactory performance and the other resigned, claiming that she had been constructively discharged.15 Reversing the United States Court of Appeals for the Fifth Circuit, the Supreme Court held that the whistleblower protection provisions of Sarbanes-Oxley protect employees of private contractors and subcontractors just as they protect employees of the public company served by the private contractors and subcontractors.16 The Court recognized that, in enacting Sarbanes-Oxley, Congress was aware of the role that outside contractors play in reporting misconduct and that fear of retaliation is the major deterrent to such reporting.17

In addition to fearing civil liability for retaliation claims, employers should beware of potential criminal liability under Section 1107 of Sarbanes-Oxley.18 Engaging in retaliation against a whistleblower knowingly is a felony and considered an obstruction of justice.19

Section 1102 of Sarbanes-Oxley, subtitled “Tampering with a Record or Otherwise Impeding an Official Proceeding,” amends Section 1512 of Title 18 of the United States Code by adding criminal fines and imprisonment for up to 20 years for any individual who “corruptly (1) alters, destroys, mutilates or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” The broad language of the amendment encompasses “any official proceeding,” including any action by the EEOC, DOL, NLRB, OSHA, or any other agency and department. The possibility of incurring these federal penalties heightens the need for a positive compliance culture, effective investigations, and successfully avoiding and defending against retaliation claims.

B. False Claims Act Amendment

The False Claims Act is a tool for the federal government to recover losses from those who defraud government programs.20 The Act includes a qui tam provision, which provides incentives for private citizens to file suit on behalf of the government for any observed wrongdoing. These citizens, which include employees, are entitled to an award of 15-30% of any recovery resulting from such an action. The False Claims Act also provides job protection to employee whistleblowers including reinstatement with the same seniority status that the whistleblower would have had but for the discrimination, twice the amount of back pay, interest on the back pay, and any special damages including litigation costs and attorney’s fees.21

Plaintiff whistleblowers may bring an action under the False Claims Act in federal district court. Id.22 There is a three-year statute of limitations for bringing claims under this Act.23

Congress enacted the Fraud Enforcement and Recovery Act (“FERA”) in 2009, amending the False Claims Act. FERA extends whistleblower protection to contractors and agents in addition to employees.24 FERA also broadened the scope of who can be liable under the False Claims Act to persons other than “employers.”25

C. IRS Manual on Whistleblower Claims

The IRS issued a manual on Whistleblower Awards, the purpose of which is to “outline[] the cross-functional procedures for working case files with a Form 211, Application for Award for Original Information.”26 The manual discusses the amendment to section 7623 of the Internal Revenue Code (“IRC”), provided in the Tax Relief and Health Care Act of 2006, which “made significant changes to the whistleblower program and also required establishment of a Whistleblower Office within the Internal Revenue Service that has responsibility for the administration of the award program.”27 The manual also provides that to be eligible for an award under the amended section 7623 of the IRC, “the tax, penalties, interest, additions and additional amounts in dispute must exceed in the aggregate $2,000,000.”28 Additionally, “[i]f the



taxpayer is an individual, the individual’s gross income must exceed $200,000 for any taxable year at issue.”29

IV. HIGH VERDICTS IN RETALIATION CASES

In addition to the prevalence of retaliation cases, they can also be among the most costly of employment discrimination cases. A sample of high verdicts in recent retaliation cases is below:

EEOC v. United Health Programs of America, 2018 WL 2932222 (E.D.N.Y. 2018)Cause of Action: Retaliation; Religion Award Amount: $5,100,000.00

Miller v. Bd. of Regents of Univ. of Minn., D. Minn., No. 0:15-cv-03740, 3/15/2018 Cause of Action: Sexual Orientation; Retaliation; Sex Award Amount: $3,744,832.00

Sink v. Iowa, Iowa Dist. Ct., No. LACL134016, 3/7/2018 Cause of Action: Retaliation; Sexual Harassment Award Amount: $2,000,000.00

Berger v. Kargo Global, Inc., 2017 WL 6568925 (S.D.N.Y. 2017).Cause of Action: Retaliation; Equal Pay; Sex Award Amount: $40,900,000.00

Miller v. Bosman, Mo. Cir. Ct., No. 1416-CV02573, 12/9/2016 Cause of Action: Retaliation; Sex; Age Award Amount: $20,450,000.00

EEOC v. Moreno Farms, Inc., 2015 WL 9234214 (S.D. Fla. 2015) Cause of Action: Retaliation; Sex; Sexual Harassment Award Amount: $17,450,000.00

Khalaf v. Ford Motor Co., E.D. Mich., No. 2:15-cv-12604, 4/3/2018 Cause of Action: Retaliation; Race; National Origin Award Amount: $16,800,000.00



V. GET YOUR HOUSE IN ORDER

Due to the prevalence and potential high costs of retaliation lawsuits, it is important that companies “get their house in order” as to avoid them.

A. Encourage a Positive Compliance Culture

The law surrounding retaliation and whistleblowing is challenging, but businesses can implement or strengthen policies and practices to meet those challenges successfully. A culture of compliance not only deters employees from complaining externally, but also strengthens the employer’s position in the event that the employee files a retaliation lawsuit in the future. Following are best practices every business should consider to address the evolving state of retaliation and whistleblower laws.

1. Written Policies

If employees believe that their employer has effective internal mechanisms for raising concerns about perceived improprieties, they will be more likely to keep their concerns internal to the company. Meaningful internal mechanisms also help deter an atmosphere of distrust. Management needs to demonstrate to employees its insistence upon compliance with applicable law, which can most effectively be done by establishing written policy or policies expressly requiring their employees to comply with any applicable laws, and explaining in detail how to report a violation if they see one. If an employer is silent regarding its insistence on compliance with the law, employees could construe this as a conscious decision to discourage compliance.

Employers may want to establish a means for employees to seek informal clarification of its policies through an ombudsman program so that employees are not confused as to whether particular conduct is improper or not. It is also advisable for employers to provide multiple channels for employee disclosures, because some employees will find certain channels more effective than others. Employers’ policies should always expressly state that no retribution will be taken for responsible disclosures and demonstrate an unequivocal commitment to a retaliation-free environment. Allowing employees to report anonymously is also an effective tool for increasing participation and easing concerns with retaliation.

2. Training and Communication

If an employer publicizes its policy and emphasizes its commitment to such policy, employees are much more likely to be persuaded that the policy will be enforced. Employers should communicate to all levels the Company’s commitment to its complaint policy and each person’s obligation under it. Employers should also designate high-level executive(s) responsible for the implementation and oversight of the compliant and investigation process and communicate it—within the policy, through training, and other corporate communications. It is also advisable to train employees on the policy and have them sign acknowledgements that they are aware of the program and how it works. An employer may want to take an additional step and provide ethics training for its employees. Such training may aid in prevention of unfounded claims and will demonstrate that the employer takes ethical problems seriously. To prevent retaliation and whistleblowing claims that result from a lack of communication within an organization, make it a habit to remind employees regularly about the policies in place through e-mails, newsletters, posters, etc.



3. Consider an Internal “Bounty” Program

Rewarding reporting as a means to encourage employees to step forward internally can be a powerful tool—and it does not have to revolve around money, although it can. Intangibles such as publically praising employees who do come forward with concerns that result in positive change for the organization can be very meaningful, while encouraging others to do the same. Also, do not underestimate the power of a personal telephone call from the CEO, a write-up in the Company newsletter, or a broadcast e-mail. Essentially, advertise the successes of your complaint procedure and compliance program—and the people who make it successful.

VI. SUCCESSFULLY AVOIDING CLAIMS OF RETALIATION

A. The EEOC

The Equal Employment Opportunity Commission (EEOC) aggressively prosecutes retaliation claims. Retaliation charges accounted for nearly 49 percent of all charges filed with the EEOC and constituted the highest category for the eighth year in a row. These statistics make it even more important to make sure employers are in front of these issues.

On August 29, 2016, the EEOC issued the EEOC Enforcement Guidance on Retaliation and Related Issues, available at https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm. The 2016 Guidance replaced a 1998 Guidance. The 2016 Guidance describes the EEOC’s position on the law (including the case law, some of which is described above) and available remedies under the law. The Guidance also provides substantive examples of conduct it believes constitutes actionable retaliation. Of particular importance to employers, the new Guidance outlines what the EEOC refers to as five “promising practices” for employers to consider, implement, and enforce. These five “promising practices” include: (1) written policies; (2) training; (3) anti-retaliation advice and individualized support for employees, managers, and supervisors; (4) proactive follow-up; and (5) review of employment actions to ensure EEO compliance. In addition to the Enforcement Guidance, the EEOC published a helpful Q&A document, available at https://www.eeoc.gov/laws/guidance/retaliation-qa.cfm.

B. Avoiding Retaliation Claims

Even with a positive compliance culture and effective internal investigations, employees will still, at times, pursue retaliation claims. Employees that have blown the whistle on alleged misconduct are not shielded from discipline, layoffs, or other adverse actions. In order to avoid claims of retaliation, and possibly defend against a retaliation lawsuit, employers should take great care after an investigation and in dealing with issues that arose.

1. The Investigation

There are several ways in which an employer can try to minimize the risk of retaliation claims. One way is by completing a thorough investigation. Upon receipt of a complaint of workplace discrimination or harassment, an employer should act promptly, reasonably, and effectively to investigate that complaint. Of course, that does not mean that an employer should immediately conduct a “scorched-earth” investigation, in which it interviews any and every possible witness. Rather, the employer should have in place a set, reasoned investigation protocol that minimizes the risks of later retaliation claims. Steps that can be taken to minimize risk include the following:



• Give serious thought to who should be interviewed

• Consider where and when to conduct the interview

• Provide assurance of non-retaliation

• Maintain confidentiality

• Take detailed notes

Employers should not allow the recommendations coming from a well-conducted investigation to go unaddressed—if any are not implemented, record why. Always approach discipline or discharge of a known whistleblower with appropriate caution; ensure the business reasons for the decision are well supported and documented and that the decision-maker is as insulated as possible from claims of retaliation through independent review. If a higher-level supervisor must approve adverse actions recommend by a lower-level supervisor who is the subject of a known whistleblower discrimination or retaliation claim, an independent evaluation of the recommendation must be made.

A process that marshals foresight, planning, a commitment to fairness and sensitivity, control of communication, and common sense will more often than not protect the employer because a process that is fair and is fairly documented is more likely to be perceived as fair—by employees, the applicable administrative agency, judges, and juries.

2. Handling the Current Employee and Avoiding Additional Retaliation Claims

Perhaps one of the most challenging circumstances for employers is the legally risky endeavor of managing a current employee who has already engaged in protected activity and who is or likely will continue to engage in additional acts of putative protected conduct. Here, every interaction with that employee will be evaluated by the employee and his or her counsel to support existing and added retaliation claims.

a. Ensure Employee’s Supervisors and Managers Are Equipped for Providing Ongoing Supervision

Once an employer becomes aware that a current employee has engaged in protected conduct, that employee’s supervisors and managers are thrust into a dilemma. They must continue to perform necessary managerial oversight while being sensitive to the reality that any and all subsequent supervisory actions, even routine, may be considered retaliatory. Moreover, that employee has ongoing opportunities to undertake additional acts of putative protective conduct that further complicate and impede otherwise managerial oversight.

First, ensure that subsequent decisions affecting the employee be convincingly supported by solid evidence, sound reasoning, and consistent with how similarly situated employees have been treated under similar circumstances. These decisions will be scrutinized and care must be taken to establish factual and business justifications for any anticipated adverse employment action.

Second, ensure that those supervisors and managers who have the authority to effectuate adverse employment actions, referenced above, have their intended decisions vetted



by the employer’s legal counsel and human resources department be implementing those decisions. Doing so affords the decision-making supervisor, and the organization, with the confidence to reduce or at least manage legal risks, within the scope of the attorney-client privilege if possible, when formulating and implementing decisions affecting that employee.

Third, consider taking the supervisory person that allegedly acted improperly out of the decisional loop for any action that could be deemed to an adverse employment action. Doing so may not be feasible in all situations and may even be ill-advised in particular circumstances. The key is to avoid accusations that subsequent decisions affecting the employee were made by particular supervisors who possess discriminatory intent or retaliatory animus.

Fourth, create a direct line of communication to a capable and trusted human resources person for the employee to voice future/ongoing concerns.

Fifth, take control and instruct those who will be communicating with the employee on how to communicate. Because all ongoing internal communications to the employee, and about them, will likely be scrutinized in litigation, the employer is presented with opportunities, and risks, for demonstrating that his or her underlying concerns were taken seriously, investigated with integrity, and kept separate from regular day-to-day functions and communications. Those day-to-day communications must also reflect fairness, respect, and business-as-usual interactions.

b. Strategically Formulate Boundaries for Opposition Conduct, and Carefully Communicate Those Boundaries to the Employee

Courts have established limitations on the nature and type of “opposition” behavior that will retain statutory anti-retaliation protection.

When an employee’s protected activity is of the “opposition” variety, courts typically require that it be “reasonable” and not “disruptive.” Courts tend to balance employees’ right to oppose allegedly illegal discrimination against their employers’ interests in employee loyalty, cooperation, and the fostering of a safe and productive work environment.

The First Circuit’s decision in Hochstadt v. Worcester Fndn. For Experimental Biology30

provides a helpful illustration of this balancing test. In that case, the First Circuit determined that the plaintiff did not engage in protected opposition because “she did not have ‘unlimited license to complain at any and all times and places’” and that her “constant complaints to colleagues and claims that the [employer, a foundation] was about to lose its grant money were excessively hostile and disruptive as well as public and disloyal.”

The Fourth Circuit’s decision in Harden v. Wicomico County31 similarly applied a balancing test to a plaintiff who had mailed a confidential report regarding another employee’s alleged sexual harassment to a public official and posted it on his online blog. In this case, the Fourth Circuit “balance[d] the purpose of the Act to protect persons engaging responsibly in activities exposing . . . discrimination, against Congress’ equally manifest desire not to tie the hands of employers in the objective selection and control of personnel.” In applying this test, the court found the county-employer’s interest in protecting confidential, sensitive records outweighed the plaintiff’s interest in exposing the alleged sexual harassment.



Generally, employees who refuse to perform reasonably assigned work are not protected when they purport to “oppose” discrimination in such manner.32 These cases are also instructive:

• Minor v. Bostwick Laboratories, Inc., 2012 WL 251926 (4th Cir. Jan. 27, 2012). Here, an employee’s meeting with an executive to protest her supervisor’s directive to falsify overtime records was protected opposition. However, the court explained that this “[d]oes not mean that every instance of an employee ‘letting off steam’ to his employer constitutes protected activity.” A protest must be made with “some degree of formality . . . to the point where the recipient has been given fair notice that a grievance has been lodged and does, or should, reasonably understand that matter as part of its business concerns.”

• EEOC v. Mike Hooks, Inc., 2011 WL 1807369, *18 (W.D. May 11, 2011). In this case, the court determined that the employee used improper and disruptive methods by threatening to turn the employer’s failure to fire his co-worker for calling him a racial slur into a “media nightmare” despite company policy requiring complaining employees to keep allegations of misconduct, investigation, and corrective action confidential. (Such a policy would be scrutinized for possible violations of the National Labor Relations Act). This employee’s statements were “closely akin to blackmail” and “exhibited the type of insubordination and disruption not protected by Title VII. The court further noted that the employee engaged in additional opposition activity after the employer took “remedial action that effectively ended the harassment.”

• Loudemilk v. Best Pallet Co., 636 F.3d 312 (7th Cir. 2011). In this case, the employer discharged the plaintiff immediately after he submitted a written discrimination complaint because he had attempted to collect evidence to support his race bias claim in violation of a neutral company policy prohibiting taking photos of the work area. The 7th Circuit reversed the district court’s entry of summary judgment for the employer, stating: “ . . . we don’t say that [Title VII] allows workers to break locks and rifle managers’ desk drawers in search of evidence; our point is that a ‘policy’ that may have been devised to curtail an investigation is not the sort of neutral rule that would adequately explain a discharge.”

• DeMasters v. Carilion Clinic, 796 F.3d 409 (4th Cir. 2015). In this case, the employee alleged that he was discharged for supporting a fellow employee’s sexual harassment complaint and after criticizing the way the employer handled the investigation. The 4th Circuit reversed the district court and held that the employee’s oppositional conduct must be considered as a whole. Therefore, the court applied a “totality of circumstances” analysis to find that the employee communicated to his employer a belief that the employer engaged in employment discrimination. Further, the court held that the “manager rule” did not apply in Title VII cases; therefore, the fact that the employee’s job responsibilities included reporting discrimination claims did not prevent him from seeking protection under Title VII’s anti-retaliation provision.

• Ray v. Ropes & Gray LLP, 799 F.3d 99 (1st Cir. 2015). In this case, the employee, an associate attorney at a law firm, asserted a claim of discrimination and retaliation, alleging that he was denied a promotion based on his African-



American heritage and that he was retaliated against because he complained to management about racially charged remarks made by two partners and because he filed a complaint with EEOC. At trial, the jury found against the employee on the retaliation claims and this court affirmed. The court found that even if two partners at law firm had made racially charged remarks in the presence of African-American associate, those remarks did not show that firm’s proffered legitimate reasons for failing to promote the associate to partner were pretext for race discrimination in violation of Title VII, because the employee did not demonstrate evidence that there was a connection between those remarks and the decision by the firm’s policy committee that the associate should not be promoted.

3. Top Ten List

In addition to the investigation and handling the current employee, the following “Top Ten” provides guidance in avoiding potential retaliation claims when handling whistleblower issues.

Use best practices for performance, disciplines, and discharges. Be aware of the objective metrics by which performance is evaluated, but remember that all numbers are relative. The objective metrics may accurately document declining performance. These same metrics may document declining performance for similarly-situated workers. Why then was only the worker who engaged in protected activity given a Performance Improvement Plan?

Update and scrupulously follow policies. Policies are of no help to anyone if they are not updated and followed, consistently as possible.

Create and reinforce a consistent compliance culture. That culture includes possible consideration of bounty programs or other incentives to encourage employees to bring forward issues so that they can be dealt with promptly and appropriately, before they become even bigger issues.

Train and evaluate supervisors on protected conduct and responding properly. Supervisors speak and act on behalf of the company in the minds of judges. So train supervisors on the law and policies and require compliance as part of their performance expectations.

Fairly investigate all concerns. (See supra Section IV). This includes assigning a handler to be the point person for the complaining party. It also requires closing the loop with the complaining party and following up to ensure no issues going forward.

Create a direct line of communication for the complaining party to voice future concerns. This ensures that future concerns are not lost in the bureaucratic morass.

Identify impending episodes at risk of being retaliatory and monitor closely. These could include reductions-in-force, negative performance feedback, or many other employment-related decisions.



Consider limiting/changing decision-makers. When possible, take the party that allegedly acted inappropriately out of the decisional loop for any action that could be deemed an adverse employment action to avoid the appearance or allegation of additional retaliation.

Take control after a retaliation claim and be consistent. Instruct those who will be communicating on how to communicate, especially in e-mails and memos. It is not just what you say, but how you say it. A paper trail that on its face demonstrates that employee concerns were taken seriously and investigated with integrity is the foundation for success. Because the process you follow will be fair, communication should “ooze” fairness and respect. Once there is recognition that protected activity may have occurred, partner with Human Resources and Management (sometimes assisted by Legal) to develop an individualized plan to minimize the risks. Related, in the immediate aftermath of an employee compliant or expression of concern that may constitute “protected activity,” pause and reflect before implementing any decision that could be construed as an adverse employment action. A paper trail that accurately reflects that the company has given the employee the benefit of the doubt will contribute mightily to a positive result. Beware the problem of “temporal proximity.”

Employ “promising practices” per the EEOC Guidance. Employing the five promising practices set forth in the EEOC Guidance will go a long way in presenting the best defense possible in response to an agency charge.



ENDNOTES

1 42 U.S.C. § 2000e-3(a).

2 29 U.S.C. § 623(d).

3 29 U.S.C. § 12203(a)-(b).

4 Smith v. LaFayette Bank & Trust Co., 674 F.3d 655, 658 (7th Cir. 2012) (“General complaints, such as Smith’s, do not constitute protected activity under the ADEA because they do not include objections to discrimination based on her age.”) Hatmaker v. Memorial Medical Center, 619 F.3d 741, 747 (7th Cir. (Ill.) 2010); Boyland v. Corrections Corp. of America, 390 Fed.Appx. 973, 975 (11th Cir. (Fla.) 2010) (to establish a statutorily protected expression under the opposition clause, a plaintiff must show that he had a good faith, reasonable belief that the employer was engaged in unlawful employment practices).

5 Some of the major corporate and accounting scandals include those affecting Enron, Adelphia, and WorldCom.

6 18 U.S.C § 1514A.

7 Id.

8 DODD–FRANK WALL STREET REFORM AND CONSUMER PROTECTION ACT, PL 111-203, July 21, 2010, 124 Stat 1376.

9 Id; see also Santoro v. Accenture Federal Srvcs., LLC, 748 F.3d 217, 222 (4th Cir. 2014) (“[O]ne of the goals of Dodd-Frank was to strengthen whistleblower protections for employees reporting illegal or fraudulent activity by their employer.”).

10 In 2013, the SEC’s Office of the Whistleblower paid whistleblowers a total of over $14 million in “recognition of their contributions to the success of enforcement actions pursuant to which ongoing frauds were stopped in their tracks.” U.S. Securities and Exchange Commission – 2013 Annual Report to Congress on the Dodd-Frank Whistleblower Program (whistleblowers receive 10 to 30 percent of recovery from reported violations worth over $1 million).

11 DODD–FRANK WALL STREET REFORM AND CONSUMER PROTECTION ACT, PL 111-203, July 21, 2010, 124 Stat 1376.

12 See Lawson v. FMR LLC¸ 134 S.Ct. 1158 (2014).

13 Id. at 1164.

14 Id.

15 Id.

16 Id. at 1176.

17 Id. at 1171 (“Also clear from the legislative record is Congress’ understanding that outside professionals bear significant responsibility for reporting fraud by the public companies with whom they contact, and that fear of retaliation was the primary deterrent to such reporting by the employees of Enron’s contractors.”).

18 See 18 U.S.C. § 1513(e).



19 Id.

20 31 U.S.C. §§ 3729-3733.

21 31 U.S.C. § 3730(h)(2).

22 Id.

23 31 U.S.C. § 3730(h)(3).

24 31 U.S.C. § 3730(h)(1).

25 Id.

26 IRS Manual, Chapter 25 Special Topics, Chapter 2 Information and Whistleblower Awards, Section 2 Whistleblower Awards, § 25.2.2.1. http://www.irs.gov/irm/part25/irm_25-002-002.html#d0e10.

27 Id.

28 Id.

29 Id.

30 545 F.2d 222, 230 & 233 (1st Cir. 1976).

31 149 F.3d 253, 260 (4th Cir. 1998).

32 Paul v. Federal Nat’l Mortgage Ass’n., 697 F.Supp. 547, 556 (D.D.C. 1988); Smith v. Texas Dept. of Water Resources, 818 F.2d 363, 365 (5th Cir. 1987).

1


Presented by

Paul Lancaster Adams (Philadelphia), Aisha Christian (KIPP: NYC), and W. Scott Hardy (Pittsburgh)

Moderated by

Cynthia A. Bremer (Minneapolis)

What Is Retaliation?

Retaliation occurs when an employer, employment agency, or labor organization takes an adverse action against a covered individual because he or she engaged in a protected activity.

2

What Is Protected Activity?

Protected activity includes:

– Opposition to a practice believed to be unlawful discrimination• Must be based on reasonable, good-faith belief that

the complained practice violates anti-discrimination law

– Participation in an employment discrimination proceeding

Why Do We Care?

Because the EEOC cares

Because plaintiffs’ attorneys care

Because common claim in lawsuits and threatened lawsuits

Because numerous federal, state, and local laws forbid retaliation

3

In 2017…

Federal Employment Discrimination Claims

74%

General Employment Claims

55%

The EEOC stats show retaliation as

48.8%of all charges filed

Highest Retaliation Verdicts Over the Past 5 Years

2015$17.4M

2014$185.8M

2016$31.2M

2017$40.9M

2018$16.8M

How can you get off the merry-go-round?

4

Tip #1

Watch out for red flags in the hiring process

Tip #2

Follow HR best practices by handling employee performance issues when they arise and contemporaneously documenting termination decisions

But be cognizant of timing and space between two events

5

Tip #3

Consistently follow company policy and practice or have good explanation when not

Tip #4

Take control of a situation post-claim, including following investigation best practices

6

Tip #5

Train employees, managers, and supervisors on how to do things right, and call out bad behavior when you see it

Tip #6

Follow EEOC Promising Practices

– Written employer policies

– Training

– Anti-retaliation advice and individualized support for employees, managers, and supervisors

– Proactive follow-up

– Review of employment actions to ensure EEO compliance

7


Presented by

Paul Lancaster Adams (Philadelphia), Aisha Christian (KIPP: NYC), and W. Scott Hardy (Pittsburgh)

Moderated by

Cynthia A. Bremer (Minneapolis)

ESCAPING THE RETALIATION MERRY-GO-ROUND · in preventing and responding to whistleblower...

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Transcript of ESCAPING THE RETALIATION MERRY-GO-ROUND · in preventing and responding to whistleblower...