United States: Avoiding Liability For Retaliation Claims: Issue Spotting In Real Time

Last Updated: December 4 2014
Article by John Mavros

Introduction

Retaliation lawsuits are the most common claims brought against employers before governmental agencies and are increasing in frequency in the civil court system. According to the Equal Employment Opportunity Commission (EEOC), in 2013, a retaliation claim was made in 41.1% of all charges submitted to the EEOC. This is more than discrimination based on race and more than discrimination based on disability. Even more concerning is the consistent uptick in retaliation allegations. Retaliation claims have increased in number every year since 1997. So, what can employers do to protect themselves against this ever-growing liability?

First, employers must understand what retaliation is. Next, employers must be able to issue spot when a particular set of facts poses a high risk for a retaliation claim. This article will attempt to do both.

Retaliation in a Nutshell

At bottom, retaliation is exactly what it sounds like: taking adverse action against an employee in direct response to something an employee did or didn't do. Simple right? Indeed, why would an employer ever consciously "retaliate" against an employee? While it may seem simple to avoid, liability for retaliation doesn't usually arise in a straightforward or intentional manner.

As a brief overview, employers cannot fire, demote, harass, or otherwise "retaliate" against people (applicants or employees) because they filed a charge of discrimination, because they complained to their employer or other covered entity about discrimination on the job, or because they participated in an employment discrimination proceeding (such as an investigation or lawsuit). It is also a violation for an employer to discharge, or in any other manner discriminate against, an employee because that employee filed a wage/hour complaint or caused to be instituted any proceeding under the Fair Labor Standards Act.

In short, the potential for retaliation arises when an employer takes "adverse" action against an employee after he/she engages in activity that is legally "protected." "Adverse" action can include any action detrimental to the employee's terms and conditions of employment. For example, pay reductions, demotions, or transfers are all potentially adverse actions. A common misconception is that "adverse" action is solely limited to termination. "Protected" activity includes, but is not limited to, taking a medical leave of absence, complaining about unlawful discrimination, and complaining about unlawful pay practices. Remember, the employee need not prove that a complaint turned out to be true, only that it was reasonable to think believe it was.

The Retaliation Problem

Liability for retaliation generally arises when decisions are made by looking at a small set of facts rather than taking a long, hard look at the big picture. When an employee makes a seemingly insignificant comment, or complains about something completely false, decisions are often made without fully considering the import of the employee's actions. HR managers, and their equivalents, must take note and consider them seriously. How is an employer supposed to know what to look for? This is especially difficult when the HR team is bombarded with employee issues, demands from their bosses, and a slew of other "to do" items that can make issue spotting for retaliation difficult to focus on. Here's a short hypothetical to help employers quickly issue spot for retaliation:

An hourly employee ("Susie") works the night shift as a front desk agent. She is often late to work and insubordinate to her supervisor. Susie's supervisor gets tired of these antics and issues a written warning to her for being late to work. The supervisor does not see this as a terminable offense as others have not been terminated for being late, but simply wants Susie to show up to work on time and be respectful. The following month, the same front desk agent continues to show up late and act insubordinate. The supervisor tells the GM verbally that he would like to terminate Susie. The supervisor explains that she is causing problems with scheduling and is further bringing down morale by setting a bad example. The GM does not make an immediate decision, but generally agrees that Susie needs to be let go. The next day Susie mentions to her supervisor that she has not been paid for all the time she worked and is owed wages. She also claims that others may have unpaid wages too. The supervisor quickly looks at her pay stubs and concludes that the complaint is baseless. Subsequently, the GM approves the termination and the hotel issues a termination form stating that it is "pursuant to her 'at-will' employment." After all, they can terminate for any reason and it was obvious that the employee was consistently late to work and insubordinate.

Issue Spotting In Real Time

Given this set of facts, Susie will have colorable claims for retaliation and wrongful termination. A plaintiff's lawyer will vividly describe to the jury how Susie innocently told the hotel about their illegal pay practices and how the employer terminated her because she complained. Susie's attorney will also argue that there is no evidence that Susie was insubordinate. Her lawyer will explain that the hotel wanted to line its pockets and that's why they didn't want to pay her proper wages. Of course, Susie was just trying to fight for her hard earned wages but this is how the hotel deals with people who speak up.

  • Issue No. 1 – Write up the employee immediately and completely. Employers must write up employees for violating of company policy. Susie was written up the first time for showing up late, but Susie was not written up for being insubordinate. She also was not written up the second time she was late and insubordinate. Instead, Susie was just terminated pursuant to her "at-will" employment. These actions create several problems. First, it eliminates any written evidence that she was insubordinate in the first place. Second, without a reason for the termination decision, it will be subject to challenge. It makes the employer look like they are hiding the true reason for the termination when it was as simple as being late to work. In this case, Susie will claim she was retaliated against because she complained about unpaid wages and the employer will not have anything to show otherwise.
  • Issue No. 2 – Be consistent with discipline. Susie was written up and ultimately terminated for being late to work and insubordinate. However, if other employees were showing up to work late without being written-up, Susie's retaliation claim just became much stronger. Employers must not give the impression that they are singling someone out. The best way to do that is to be consistent when implementing discipline. Writing up an employee for showing up late to work, in particular, gives the impression of retaliation if it is not consistently enforced.
  • Issue No. 3 – Investigate all complaints fully and communicate with employee. Employers should not disregard complaints, especially those regarding wages or discrimination. Supervisor may have investigated Susie's complaint, but he did not conduct a full investigation or find out exactly how Susie believed she was owed wages. He also did not inform Susie, in writing, that the complaint was investigated and resolved. This is necessary to "close the loop" with employee, to show that it was handled appropriately. Employers should have written confirmation to the employee that the complaint was handled and resolved.
  • Issue No. 4 - Ensure that all relevant decision-makers know what happened to make an informed decision. All company supervisors and managers must communicate with one another. Here, supervisor should have informed the GM that Susie made a complaint, especially since Susie was the subject of termination. This may have ended up saving the company thousands in legal fees. Armed with this information, the less risky decision would have been to forego termination and simply issue a second write-up for showing up late to work and being insubordinate. While there is no set timeframe for holding off on a termination after any "protected" activity, every day that goes by weakens the causal link to a retaliation claim.
  • Issue No. 5 – Document termination decisions immediately to establish a timeline. Retaliation claims are primarily about timing. As such, employers must be mindful of the timeline they are creating with every adverse action they take. When appropriate, internal employment related decisions should be properly vetted and documented. Here, an e-mail from the GM to supervisor approving the termination the day before Susie's complaint would be strong evidence that her termination was not related to her complaint.

Conclusion

Retaliation claims often arise based on circumstances that the employer may not have even realized existed. Any adverse employment action should be reviewed on a case by case basis, taking into account all available information. Following these issue spotting tips will help keep employers out of the courtroom.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
John Mavros
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.