Do you know? OSHA protects employees from retaliation for reporting injuries

Like many states, Ohio has a statute that protects workers from retaliation for filing a workers’ compensation claim. But that statute is not the only one that protects the rights of employees injured on the job. OSHA also protects employees from retaliation for reporting workplace injuries.

Case in point: the U.S. Department of Labor recently filed suit against Ohio Bell, claiming that it wrongfully suspended 13 employees who had reported workplace injuries to their employer, according to the Cleveland Plain Dealer.

And, these cases are only becoming more prevalent. According to the Wall Street Journal, in the last decade the number of workplace injuries has decreased by 31 percent, while the number of retaliation claims stemming from workplace injuries has doubled. In other words, employees are getting hurt less, but claiming retaliation more.

The Plain Dealer article quotes Dr. David Michaels, assistant secretary of labor for occupational safety and health, “It is against the law for employers to discipline or suspend employees for reporting injuries.” I think we can agree with Dr. Michael that this type of retaliation is illegal and shouldn’t happen.

Let’s suppose, however, that this employer wasn’t disciplining employees for suffering on-the-job injuries, but instead was disciplining employees for violating established safety rules. Doesn’t an employer have a legitimate interest in enforcing its safety rules to deter future violations and create a safer workplace, even if it results in discipline or termination? How does an employer walk this line without arousing the DOL’s ire?

• For starters, you can treat all employees the same, based on the severity of the safety violation, and regardless of whether the injured employee self-reported the injury or not. Thus, you can start to build a case that safety, and not retaliation, guided your decision-making.

• And, you should make safety a priority. Have clear written safety rules for employees to follow. Train your employees on your rules and others safe-workplace principles. Institute regular safety meetings. Creating a workplace built around safety is not only better for your employees, but it will help you show that you prioritize safety, not retaliation, if an injured employee (or the government) brings suit.

In the meantime, know that the DOL is watching this issue, these types of claims are increasing, and you take a risk of a retaliation claim if you terminate an employee who reported a workplace injury.

More on the EEOC’s position on retaliation in severance agreements: A proposed solution

Yesterday, I reported on a lawsuit the EEOC has filed, claiming that some fairly generic terms in an employee severance agreement constitute illegal retaliation. In EEOC v. CVS, the agency claims that an agreement that attempts to limit an employee’s communication with the EEOC unlawfully attempts to buy employee silence about potential violations of the law.

I try to shy away from hyperbole, but OH MY GOD, THIS CASE COULD BE RUINOUS!!!

When you compare the inoffensiveness of the provisions challenged in CVS to the hard-line position put forth by the EEOC, you begin to understand why this case has the potential to be most significant piece of litigation the EEOC has filed in recent memory.

Employers settle lawsuits and pay employees severance in exchange for certainty. Employer don’t write checks to litigants (or potential litigants) out of the goodness of their hearts. They do so because they want to get rid of claims and potential claims. The provisions with which the EEOC has taken issue — a general release, a covenant not to sue, cooperation, confidentiality, non-disparagement, and the payment of attorneys’ fees upon a breach — are crucial for employers. You’d be hard pressed to find an agreement that does not contain some combination of most, if not all, of these provisions.

Yes, the anti-retaliation provisions of the employment discrimination laws prohibit employers from requiring that employees give up their statutory rights to file discrimination charges, cooperate in investigations, or provide information to the EEOC. But, the CVS agreement that the EEOC is challenging did not contain those requirements.

Instead, the challenged agreement expressly protected the employees’ statutory rights:

Moreover, nothing is intended to or shall interfere with Employee’s right to participate in a proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws, nor shall this Agreement prohibit Employee from cooperating with any such agency in its investigation. Employee shall not, however, be entitled to any relief, recovery, or monies in connection with any Released Claim brought against any of the Released Parties, regardless of who filed or initiated any such complaint, charge, or proceeding.

In re-reading the EEOC’s complaint, the agency seems to take issue with two key facets of the challenged agreement:

1. The carve-out existed as a “single, qualifying sentence” in the “Covenant Not to Sue” section of the Agreement.
2. The carve-out did not expressly touch all of the challenged provisions in the Agreement.

Don’t shred your settlement and severance agreements just yet. As a I promised yesterday, I have a potential solution. Modify your agreements to bolster and clarify the protected-activity carve-out. In a provision separate and distinct from the release, waiver, or covenant not to sue, consider something like the following (modeled on the provisions in CVS).

Nothing in this Agreement is intended to, or shall, interfere with Employee’s rights under federal, state, or local civil rights or employment discrimination laws (including, but not limited to, Title VII, the ADA, the ADEA, GINA, USERRA, or their state or local counterparts) to file or otherwise institute a charge of discrimination, to participate in a proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws, or to cooperate with any such agency in its investigation, none of which shall constitute a breach of the non-disparagement, confidentiality, or cooperation clauses of this Agreement. Employee shall not, however, be entitled to any relief, recovery, or monies in connection with any such brought against any of the Released Parties, regardless of who filed or initiated any such complaint, charge, or proceeding.

Given the EEOC’s position, prudence dictates the breadth of this carve-out, which is more expansive than what I traditionally use. The alternative, however, is to omit these provisions all together, and draft agreements that looks like a Swiss-cheese of risk.

I cannot understate the potential significance of the EEOC’s position in CVS. This case bear monitoring, and I will continue to update you as the case proceeds. In the meantime, consider adopting changes to your stock separation and settlement agreements; the EEOC is definitely watching.

EEOC claims retaliation over garden-variety severance terms

The EEOC announced that it has filed a lawsuit against CVS, claiming that a severance agreement it provided to three employees unlawfully restricted their rights to file discrimination charges or communicate and cooperate with the EEOC.

The EEOC claims that “CVS conditioned the receipt of severance benefits for certain employees on an overly broad severance agreement set forth in five pages of small print.”

What was the “fine print” that caused the EEOC to sue this employer? The EEOC did not specify in its news release, but the complaint the EEOC filed  took issue with the following provisions:

1. A cooperation clause, which required the employees to notify CVS’s general counsel upon receipt of, among other things, an administrative complaint.

2. A non-disparagement clause, which prohibited the employees from making any statements that disparage or harm CVS’s reputation. (I told you I don’t like these provisions.)

3. A confidentiality clause, which prohibited the employee from disclosing any personnel information.

4. A general release, which included any claims of discrimination.

5. A covenant not to sue, which prohibited the employee from filing any complaints, actions, lawsuits, or proceedings against CVS, but which expressly carved out the employee’s right to participate in, or cooperate with, any state or federal discrimination proceeding or investigation.

6. An attorneys’ fees provision, which required the employee to reimburse CVS for its reasonable attorneys’ fees incurred as the result of a breach of the agreement by the employee.

According to EEOC Regional Attorney John Hendrickson, the lead litigator in the case:

Charges and communication with employees play a critical role in the EEOC’s enforcement process because they inform the agency of employer practices that might violate the law. For this reason, the right to communicate with the EEOC is a right that is protected by federal law. When an employer attempts to limit that communication, the employer effectively is attempting to buy employee silence about potential violations of the law. Put simply, that is a deal that employers cannot lawfully make.

This case has the potential to be very significant, and warrants monitoring. Most (all?) of you reading this post have used agreements that contain language similar to each of the six issues the EEOC is challenging. If the EEOC is successful in this lawsuit, employers will have to reconsider key provisions in their severance and settlement agreements. Given that employers are paying ex-employees for certainty when an employee signs a release, this case has the potential to turn these agreements on their heads.

In tomorrow’s post, I will offer a potential solution for employer looking to maintain the vitality of a general release and covenant not to sue without walking into the EEOC’s enforcement crosshairs.

Separation of protected activity and discipline can protect employers from retaliation claims

Can an employee succeed on a retaliation claim if the decision maker did not know about the alleged protected activity at the time the employer decided to terminate? The answer, according to McElroy v. Sands Casino (E.D. Pa. 1/9/14), is no.

Darryl McElroy, a dealer at the Sands Casino, submitted his FMLA request to the employee in Defendant’s human resources department who deals with benefits inquiries, Stacey Berasley. As was her practice, Berasley sent the claim to the company’s outside third-party benefits administrator, for a determination on the FMLA request. She did not tell anyone at the company about McElroy’s request for FMLA leave. Two months later, the company fired McElroy for harassing a co-worker. Berasley played no role whatsoever in the termination. McElroy claimed the termination was in retaliation for his FMLA request. The court disagreed, and dismissed the FMLA-retaliation claim.

But there surely can be no causal relationship between an FMLA request and a termination, and any temporal proximity cannot be considered suggestive, if the party making the termination decision had no knowledge of the FMLA request…. Here, none of the individuals involved in Plaintiff’s termination knew about his FMLA inquiry…. The record indicates that only Berasley knew about Plaintiff’s FMLA inquiry, and she has declared, “As is my practice with all questions regarding FMLA leave, I did not tell anyone in the Human Resources department or any of Mr. McElroy’s managers about his inquiry.” Nothing in the record could support a jury’s determination that anyone else knew; therefore, the retaliation claim fails as a matter of law.

In a perfect world, every company would operate like the employer in this case, with a separate department to handle FMLA request, which, in turn, minimizes the risk that a decision maker will learn of an FMLA request before taking an adverse action. As we all know, however, our world is far from perfect. Your organization might not be big enough to enjoy this luxury, or, maybe the employee tells someone other than an FMLA administrator of a need for FMLA leave.

Whatever the case, you can help insulate your company from retaliation claims by training your employees to treat FMLA requests (and other instances of protected activity) as need-to-know. The less people who know that an employee asked for FMLA (or made a harassment complaint, or filed an EEOC charge…), the better you will be to claim that the decision maker had no knowledge of the protected activity.

Blackballing as retaliation

Do you remember Diana Wang, the unpaid intern who sued Hearst Corporation, claiming that the publisher violated that Fair Labor Standard Act by not paying her? Two years later, she claims that she cannot find work as a result of her lawsuit.

Let’s break this down. Filing a lawsuit claiming a violation of the Fair Labor Standards Act (or Title VII, or the ADA, or the ADEA…) is protected activity. Refusing to hire someone who engaged in protected activity is illegal retaliation. Ergo, refusing to hire someone who filed a lawsuit claiming a violation of the FLSA (or Title VII…) is illegal retaliation.

So, if Ms. Wang can prove that prospective employers are not hiring her because of her prior lawsuit against a former employer, then she would have a good retaliation claim. Hunches, however, do not equal proof, and, the proof, as they say, is in the pudding. It may be that other applicants are more qualified. Or, it may be that employers are wary of hiring a qualified, but litigious, employee.

Employers don’t like getting sued. Therefore, it makes sense that they want to minimize their risk of getting sued by not hiring employees who show a propensity to sue other employers. Employers need to understand, however, that such a rationale is retaliatory, and could result in the very lawsuit they are trying to protect against—provided, of course, that the applicant can prove the prior lawsuit was the reason (or a motivating factor, depending on the nature of the underlying protected activity) for the failure to hire.

What’s the answer for businesses? Hire blind. Not every lawsuit will be as highly publicized as Ms. Wang’s. If you are going to search applicants’ backgrounds for civil lawsuits, limit the search to lawsuits that relate to the job (lawsuits against the applicant involving issues of dishonesty, for example). If you don’t look for protected activity, you will be able to insulate yourself from a retaliation claim that could result from it. And, if you happen to come across a lawsuit against an ex-employer in an applicant’s past, do the right thing and ignore it. Hire based on ability and qualifications, not litigiousness and fear.

Is social media a valid vehicle for harassment complaints?

A nuclear-medicine technician posted the following three items on her Facebook wall:

(At 9:00 am) Sara DeBord loves it when my boss adds an extra $600.00 on my paycheck for hours I didn’t even work ... awesome!!

(At 1:37 pm) Sara DeBord is sooo disappointed ... can’t believe what a snake my boss is ... I know, I know everyone warned me:(

(At 2:53 pm) Oh, it’s hard to explain. . . . basically, the MRI tech is getting paid for doing MRI even though he’s not registered and myself, nor the CT tech are getting paid for our areas ... and he tells me ‘good luck taking it to HR because you’re not supposed to know that’ plus he adds money on peoples checks if he likes them (I’ve been one of them) ... and he needs to keep his creapy hands to himself ... just an all around d-bag!!

Many of her coworkers saw the posts, including the “snake” of a boss with the “creepy hands.” Three different times, she denied authoring the posts when asked by HR. The hospital fired her a week later.

In DeBord v. Mercy Health Services of Kansas (10th Cir. 11/26/13), the court affirmed the dismissal of DeBord’s retaliation claim, concluding that thrice lying about posting information on Facebook, in addition to other violations, justified her termination.

In analyzing the retaliation claim, the court noted that the “Facebook post was not in accordance with Mercy’s otherwise flexible reporting system for sexual harassment complaints, and the post, by itself, did not provide any notice to Mercy.” Nevermind that, according to the court, “Mercy's management first received notice of this behavior … through a publicly available message on Facebook.”

An employer has a legal obligation to take reasonable steps to remedy harassment that it knows about, or should know about. This obligation not only exists when an employee makes a formal complaint under an employer’s “reporting system,” but also when an employer otherwise learns that harassment might be occurring. An employer cannot go into ostrich-mode in the face of workplace harassment.

My fear is that the DeBord court’s statement about the Facebook post not being in compliance with the employer’s “reporting system” could lead to employers thinking that it’s okay to ignore harassment complaints made on an employee’s social media page. Ignoring information about harassment is not okay. An employer does not have an obligation to look for problems on every employee’s Facebook, Twitter, etc. However, once an employer becomes aware of harassment or other unlawful conduct, it cannot pretend it doesn’t exist.

If you’re taking an employee’s deposition, don’t charge them for a day off work

Today’s blog post is a multiple-choice quiz.

An employee takes a day off work to attend his own deposition, which you are taking in defense of the employee’s discrimination lawsuit. Do you:

A. Charge the employee attendance disciplinary points for missing work to attend his deposition;

B. Permit the absence as unexcused with no points accumulated?

If you chose “A,” you might be liable for unlawfully retaliating against that employee, at least according to the court in Younger v. Ingersoll-Rand Co. (S.D. Ohio 12/3/13).

The attendance points at issue were assessed to discipline Younger for missing work to attend a deposition scheduled and noticed by the Defendant. Defendant’s scheduling of Younger’s deposition for a date and time when Younger also was scheduled to be at work at the very least placed Younger in a Catch 22 in which he risked discipline from the Court in the form of sanctions if he chose to skip the deposition to attend work or risked discipline in relation to his employment for missing work to attend the deposition.

Under the Supreme Court’s generous l adverse-action standard set forth in Burlington N. & Santa Fe Ry. Co. v. White, the court concluded that under the unique facts of this case, the assessment of disciplinary attendance points, albeit points that were later removed and resulted in no ultimate penalty, could constitute an adverse action.

Retaliation is a low standard for employees to meet. This case illustrates how carefully employers must treat when dealing with an employee who engaged in protected activity.

When Coyote Posts Get Ugly (My latest column in Workforce magazine)

Each month I write a featured column in Workforce magazine. This month, my column focuses on the risks businesses take when then take to social media to comment on pending litigation and the employees who’ve filed. The article—”When Coyote Posts Get Ugly”—is available here.

Can George Costanza sue for sexual harassment or retaliation?

In an episode of Seinfeld, George Costanza lost his job after the cleaning woman, with whom he had sex on his desk in his office after hours, ratted him out to management.

Could he have sued for sexual harassment? According to Stevens v. Saint Elizabeth Med. Ctr. (6th Cir. 8/29/13), the answer is no.

Caroline Stevens, worked as the personal assistant to defendant Dr. Donald Saelinger, the Chief Executive Officer of Patient First, which was later acquired by Saint Elizabeth Medical Center. After the hospital discovered a recently ended a consensual relationship between the two (which included after-hours sex in the office ), it offered both the option of resignation or termination. Stevens refused to resign, yada yada yada, and was fired.

The 6th Circuit affirmed the dismissal of both her sexual harassment claim (premised on some post-break-up love notes and other protestations of continued affection at the office) and her retaliation claim (premised on her termination after she had written a letter to Saelinger stating a desire to do her job in a non-threatening environment).

There is nothing wrong with employees dating. Nothing good, however, comes from a boss having relations with a subordinate employee, especially one who is a direct report. No matter your corporate position on employee romance, it’s probably best to prohibit managers and supervisors from dating (etc.) their direct reports. Untangling relationships is complicated enough. You do not need to complicate it more by engaging the possibility (and the resulting legal risk) of an employee reporting to an ex.

As for George’s possible legal claims, it’s no soup for you.

Litigation publicity as an adverse action for retaliation

Ray v. Ropes & Gray LLP [D. Mass. 8/16/13) [pdf] teaches a valuable lesson about what can go wrong when a dispute between an employer and a former employee goes public.

John Ray is a former associate of Boston white-shoe law firm Ropes & Gray. When the firm passed him over for partner, he first filed an EEOC discrimination charge, and then a lawsuit, claiming that the firm had illegally passed him over for partner. After Ray leaked to a legal blog a copy of an EEOC probable-cause finding on his retaliation claim, the blog sought comment from Ropes & Gray. The firm responded by providing a copy of an earlier EEOC no-probable-cause finding—which the blog published, and which included details about Ray’s performance reviews and an internal investigation into Ray’s alleged criminal conduct while at the firm.

In the subsequent litigation, Ray claimed that the release of the EEOC’s no-probable-cause finding was a sufficient adverse action to support a claim for retaliation under Title VII. The district court agreed:

Title VII prohibits an employer from responding to protected activity by taking an action that would “dissuade[] a reasonable worker from making or supporting a charge of discrimination.” The threat of dissemination of derogatory private information, even if true, would likely deter any reasonable employee from pursuing a complaint against his employer.

On her Employment & Labor Insider blog, my friend, Robin Shea, takes issue with this aspect of the decision.

I don’t consider it “retaliatory” for the firm to want to protect its reputation by releasing, in pure self-defense, a document that is a public record. Mr. Ray had a right to file a charge and a lawsuit, but once he started bad-mouthing Ropes & Gray…, he opened a door that he shouldn’t have opened.

I agree with Robin. Ropes & Gray did not start the public war of words with its former employee. Ray took his issues public first. An employer should have the right to defend itself in the sphere of public opinion. If the employer fired the first publicity shot, I could better understand a finding of retaliation. Merely responding to a smear that someone else started, however, should not be viewed as an adverse action, no matter how wide Title VII’s retaliation lens might be.

Nevertheless, this case illustrates that retaliation comes in all shapes and sizes, and employers must act with extreme care when dealing with any employee who engaged in protected activity. If something such as responding to publicity started by a disgruntled ex-employee can constitute an adverse action, the scope of what acts fall outside Title VII’s definition of “adverse” is getting smaller and smaller, which makes these claims all the more dangerous for employers.

Giving Employee the “Milton Treatment” Leads to Discrimination Claim

And I said, I don’t care if they lay me off either, because I told, I told Bill that if they move my desk one more time, then, then I’m, I’m quitting … I’m going to quit. And, and I told Dom too, because they’ve moved my desk … four times already this year, and I used to be over by the window, and I could see … the squirrels, and they were merry, but then, they switched … from the Swingline to the Boston stapler, but I kept my Swingline stapler because it didn’t bind up as much … and I kept the staples for the Swingline stapler and it’s not okay because if they take my stapler then I’ll have to … I’ll set the building on fire...

– Milton Waddams, Office Space

I love the movie Office Space. One of the movie’s best sub-plots involves Milton Waddams. Milton works for Bill Lumbergh, and is Lumbergh’s punching bag. Lumbergh belittles him, steals his red Swingline stapler, continuously reduces the size of his cube, and, ultimately, transfers him to a basement storage closet. All the while, Milton mumbles under his breath that he’s going to set the building on fire. True to his word, Milton ultimately gets his revenge by burning down the office.

Why am I telling you the plot of Office Space? Because, according to this story in the St. Joseph, Missouri, News-Press, a former employee of the Missouri Department of Transportation is alleging that the department discriminated against her because of her age by … are you ready … moving her out of her office and forcing her to work from a moldy storage closet.

While there are two sides to every story, generally it is a bad idea to react to an employee’s internal complaint about age discrimination by moving her workspace from an office to a storage closet. Milton earned his revenge by arson. This employee is seeking hers via the courts. Either way, giving any employee the Milton treatment, let alone doing so on the heels of a complaint about discrimination or some other protected activity, is a horrendous idea.

This post originally appeared on The Legal Workplace Blog.

“That guy” has a valid retaliation claim?

Every workplace has “that guy.” The employee who can’t quite seem to keep his mouth shut, who says inappropriate things, the one you know will someday lead to a harassment lawsuit. (Hint: If you can’t think of who “that guy” is in your workplace, it might be you).

Dunn v. Automotive Finance Corp. (M.D. Tenn. 7/2/13) is about “that guy,” but with a twist. “That guy” was Robert Dunn, a manager terminated by Automotive Finance Corp. for making inappropriate racially based comments during a social gathering following a training session. Present for Dunn’s alleged comments were four other white managers, along with one African-American assistant manager, Rick Hopkins. Several of those present complained about Dunn’s comments; the company investigated and fired Dunn.

Dunn was accused of making three racially insensitive comments:

• A comment that Tiger Woods was being judged by a white man’s standard, as compared to Michael Vick, who went to prison.
• A comment that his mother was Indian and not allowed to sit with White people back in the day.
• In reference to a statement that Hopkins would be the next manager at the company, Dunn said, “Good luck. Have you seen a family photo of this place?” and that the company had very few African-American managers “walking the halls.”

What was Dunn’s explanation when a co-worker expressed her discomfort at his statements? “That’s just how I am, because I’m a country boy.” When that same co-worker complained to management about Dunn’s comments; the company investigated and fired him.

Here’s the twist. Dunn sued for retaliation, claiming that Title VII protected his comment about a lack of upward mobility for African-Americans within the company. Incredibly, the court agreed that Dunn’s statement at least presented a question for a jury to determine as to whether that comment is protected from retaliation under Title VII.

Dunn made one comment or a set of comments that could reasonably be construed as protected activity: complaining in front of the Branch Managers that AFC discriminated on the basis of race with regard to promoting black managers. There are competing accounts as to precisely what Dunn said, although the witnesses who recall the incident appear to agree that Dunn accused AFC of being a racist company and/or that Dunn stated that AFC would not promote Hopkins because he is black…. The fact that Dunn made this comment in front of a black Assistant Branch Manager and that it made the white employees “uncomfortable” was just a side effect of speaking his mind that the company had and would continue to practice illegal racial discrimination.

The company argued that Dunn was merely seeking “to insulate himself from the consequences of [his] inappropriate conduct by concocting a post hoc rationalization that he had actually engaged in some form of ‘opposition’ activity.” I agree.

Cases like this one undermine the protections offered by the anti-retaliation laws, and send the wrong message to employers. The company fired Dunn because a co-worker complained about inappropriate race-based comments. The employer met is obligation under Title VII to investigate the allegations, and implement corrective measures to ensure that the comments stopped. Yet, the employer got punished for meeting its anti-harassment obligations. If the employer retained Dunn, it could have faced a potential harassment lawsuit. An employer should not have to choose between a harassment lawsuit by an offended employee, or a retaliation lawsuit by an alleged harasser who appears less than genuine in his “complaints.”

This case also is a perfect example of the maxim that any employee can sue at any time for any reason, and helps illustrate my point that because of the risk of lawsuits, employers are exceedingly gun-shy about firing employees.

photo credit: foreverdigital via photopin cc

The one thing you can never release in a settlement agreement

Legal disputes end in one of two ways—either with a judgment by a court or an agreement between the parties. The vast majority of cases follow the latter course.

When parties enter an agreement to settle a dispute—either in a settlement agreement ending litigation or a severance agreement ending one’s employment—the goal is to release all claims brought, or that could have been brought. An employer is paying the employee, in part, for the certainty that the employee will not file other claims against it in the future for past acts. Thus, these agreements typically contain general releases, along with covenants not to sue.

Do not, however, make the mistake of including in your agreement a covenant forbidding the employee from filing a discrimination charge with the EEOC or other agency. The EEOC will view such a provision as retaliatory under Title VII.

Last week, the Agency announced that it had reached a settlement with Baker & Taylor over claims that the company “violated Title VII by conditioning employees’ receipt of severance pay on an overly broad, misleading and unenforceable severance agreement that interfered with employees’ rights to file charges and communicate with the EEOC.” The EEOC alleged that the company required employees “to sign a release agreement that could have been understood to bar the filing of charges with the EEOC and to limit communication with the agency” in order to receive their severance pay.

The offending provisions (taken from the EEOC’s Complaint) were as follows:

• “I further agree never to institute any complaint, proceeding, grievance, or action of any kind at law, in equity, or otherwise in any court of the United States or in any state, or in any administrative agency of the United States or any state, country, or municipality, or before any other tribunal, public or private, against the Company arising from or relating to my employment with or my termination of employment from the Company, the Severance Pay Plan, and/or any other occurrences up to and including the date of this Waiver and Release, other than for nonpayment of the above-described Severance Pay Plan.”

• “I agree that I will not make any disparaging remarks or take any other action that could reasonably be anticipated to damage the reputation and goodwill of Company or negatively reflect on Company.  I will not discuss or comment upon the termination of my employment in any way that would reflect negatively on the Company. However, nothing in this Release will prevent me from truthfully responding to a subpoena or otherwise complying with a government investigation.”

How could this problem have been avoided, while still providing the employer relative certainty that it will not have future legal dealings with the releasing employee? A simple disclaimer tacked onto the back-end of the release language, stating that nothing in agreement prevents, or is intended to prevent, the employee from filing a charge of discrimination with the EEOC, or with a state or local civil rights agency. You can couple that language with a covenant providing that in the event that the employee files such a charge, the employee disclaims the right to seek or recover money damages from such a filing.

With this language, the employee retains the right to file a charge (minus damages), the EEOC retains the right to seek redress of civil rights violations, and the employer retains peace of mind that the employee has signed as strong of a release as Title VII allows.

BREAKING: SCOTUS decides on but-for causation standard for retaliation under Title VII

In a busy, end-of-term day at the Supreme Court, the Court has issued its decision in University of Tex. S.W. Med. Ctr. v. Nassar. In this 5-4, partisan-line decision, the Court decided that but-for causation is the appropriate standard for retaliation claims under Title VII.

Thus, going forward, an employee cannot succeed on a Title VII retaliation claim without proving that the employer would not have taken the adverse employment action but for an improper, retaliatory motive.

Needless to say, this is huge win for employers by narrowing an employee’s likelihood of proving retaliation. It eliminates mixed-motive retaliation. Retaliation must be the cause for an employee to prove retaliation.

Aside from its legal implications, this case is significant because it is the first retaliation case that this Court has decided in favor of the employer.

Perhaps the most curious part of the opinion, however, comes from Justice Ginsberg, who calls for passage of a “Civil Rights Restoration Act” in light of this opinion and the opinion in Vance. Given the political climate in Congress, I’d say this is unlikely. The drumbeats of employment-law reform, however, will begin to beat loudly from the left.

The Court’s opinion is available for download here.

Facebook posts as evidence of retaliation

I’ve written before about the dangers of employers accessing employee’s social media accounts without appropriate controls in place. One of the biggest risks is that an employer will learn some protected fact about an employee (e.g., medical information) that could lead to an inference of a discriminatory motive if that employee later suffers some adverse action.

Deneau v. Orkin, LLC (S.D. Ala. 5/20/13), illustrates this risk in practice. One week before Orkin terminated Tammy Deneau for repeatedly working overtime without authorization, Deneau posted the following on her personal Facebook page: “anyone know a good EEOC lawyer? need one now.” At his deposition, Deneau’s branch manager testified that he saw the comment on her Facebook page and faxed it to the division human resources manager, who, in turn, recalled that management-level discussion about the Facebook post preceded Deneau’s termination.

The court concluded, with very little discussion, that the Facebook post qualified as protected activity to support Deneau’s retaliation claim, and that she had made out a prima facie case of retaliation:

Based on the close temporal proximity between Orkin learning of the Facebook comment and Plaintiff’s termination, the Court finds that Plaintiff has established a prima facie case of retaliation.

Nevertheless, Deneau lost her retaliation claim, because she could not prove that the employer’s legitimate non-retaliatory reason (the repeated unauthorized overtime) was a pretext for retaliation.

Even though the employer won this case, it nevertheless illustrates the dangers employers face when reviewing employees’ social media accounts. Facebook, Twitter, and other social media channels can prove to be treasure trove of protected information — information about an employee’s personal and family medical issues, religious issues, genetic information, and, like this case, protected complaints about discrimination.

If you have a legitimate reason to review an employee’s social media accounts (e.g., is the employee trashing your business online, or is the employee divulging confidential information?) do so with appropriate controls in place. Have a non-decision maker conduct the review, and provide to the appropriate decision makers a report sanitized of any protected information. This simple control will insulate your organization from any argument that the decision maker was motivated by an unlawful animus based on protected information discovered in the employee’s social media account, and could prevent an expensive and risky lawsuit.

Email surveillance as evidence of retaliation

Employees should not operate under any false ideas that they enjoy an expectation of privacy in their work email accounts. Just because an employer has the right to snoop through an employee’s email, however, does not mean the practice does not carry some degree of risk.

Consider, for example, Fields v. Fairfield County Board of Developmental Disabilities (6th Cir. 12/6/12). Fields claimed that her employer retaliated against her after it discovered an email she sent to some co-workers threatening a lawsuit against the Board. The court concluded that the email surveillance was insufficient evidence of pretext.

Simple enough? What if, however, the claim was that the company only started watching her email after it learned of the protected activity, and used evidence of misconduct in the email to support the termination decision. Could the email surveillance, in and of itself, be an adverse action sufficient to support a claim of retaliation? The legal standard for an adverse action sufficient to support a claim of retaliation is very broad. Anything that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination,” qualifies as a retaliatory adverse action. If you don’t regularly review employee email accounts, and only start examining an employee’s electronic activities after that employee engages in some protected activity, might that dissuade others from engaging in protected activity?

If you are going to enforce a policy or exercise some employer right (like surveillance of corporate email or computer systems), do it consistently, not selectively and only after an employee complains about discrimination. Otherwise, you could change a legal and reasonable act (e.g., email surveillance) into evidence of unlawful retaliation.

Debunking myths of a pro-business Supreme Court

Conventional wisdom says that the current iteration of the United States Supreme Court is pro-business. In support of this position, Adam Liptak penned an article in Sunday’s New York Times, arguing that the Court led by Chief Justice John Roberts is the most business-friendly since World War II. A recent study published in the Minnesota Law Review [pdf] by Judge Richard Posner of the 7th Circuit Court of Appeals, University of Chicago economist William Landes, and University of Southern California law professor Lee Epstein (h/t ABA Journal) makes the same argument, albeit in painstaking law-review detail.

In employment cases, however, the realities of the court’s rulings have often bucked this conventional wisdom. Repeatedly, this Court had sided with the employee in cases deciding substantive individual rights under the various federal anti-discrimination statutes:

• Crawford v. Metropolitan Gov’t of Nashville — Retaliation for participating in internal discrimination or harassment investigations
• Staub v. Proctor Hospital — The cat’s paw: holding employers liable for the discriminatory animus of non-decision-makers
• Kasten v. Saint-Gobain Performance Plastics Corp. — Protecting oral wage and hour complaints under the FLSA’s anti-retaliation provision
• Thompson v. North American Stainless — Protecting oral wage and hour complaints under the FLSA’s anti-retaliation provision
• Hosanna-Tabor Evangelical Lutheran Church and School — Allowing non-ministerial employees to sue religious organizations for discrimination

Mr. Liptak recognizes, “Employees suing over retaliation for raising discrimination claims have fared quite well, for example.” Yet, much of the rest of his nearly 3,000-word opus takes the Court to task for its pro-business leanings.

The most insightful comment in the entire Times article is courtesy of Case Western Reserve School of Law Professor Jonathan Adler, who notes that the distinction is not one between business and the individual, but instead between enforcing established rights versus creating new ones. Per Professor Adler, the Roberts Court has not been “particularly welcoming to efforts by plaintiffs’ lawyers to open new avenues of litigation, but it has not done much to cut back on those avenues already established by prior cases.”

Professor Adler is correct. Those who take too great of a license to brand this Court as pro-business are ignoring the Court’s protections of key individual liberties in employment decisions. In procedural matters, this Court has, time and again, sided with the employer (Genesis Healthcare: offers of judgment mooting wage and hour collective actions; Comcast v. Behrend: the scope of class actions for claims seeking individualized damages; AT&T Mobility v. Concepcion: the enforceability of arbitration agreements). These are procedural cases. In cases deciding the application of already established rights, such as the right to be free from retaliation by one’s employer, the Court, over and over, sides with the employee.

There are still two key employment cases pending this term—Vance v. Ball St. Univ., which will decide the meaning of “supervisor” under Title VII, and University of Texas Southwestern Medical Center v. Nassar, which will decide the proper causation standard for retaliation claims under Title VII. These two rulings will help determine this Court’s developing legacy as either pro-individual or pro-business in deciding employment cases.

More on retaliation for firing after complaints of third-party discrimination

Yesterday’s post on #Donglegate — the firing of Adria Richards after she tweeted her displeasure at the off-color jokes told by a pair of fellow attendees at an industry conference — created quite the debate.

On Twitter, Chris McKinney argued that I confused the questions:

Meanwhile, blog reader Kent Mannis commented that the employer should be liable because Richards was “opposing” unlawful harassment:

Richard’s employer isn’t potentially liable for what the conference attendees did, but it may be liable for what it did (e.g., retaliate against her for her complaint)…. So, does she lose protection for using social shaming as a way of opposing another harassing drip? We want employees to try (if they can) to say “stop that” to their harassers before suing; we want them to stand up for themselves. Isn’t that what Richards did? Wasn’t she protected for “opposing”?

Despite the criticism, I do not believe that my opinion that Ms. Richards’s termination is lawful is off-base. For Title VII to protect her complaints as opposition conduct, she must have a reasonable belief that she is complaining about something unlawful. Yet, Title VII does not protect an employee from a hostile work environment created by a non-employee unless the employer can exert some reasonable degree of control over the non-employee. If Ms. Richards’s employer cannot control the people about whom she was complaining, why should Title VII protect the complaints at all?

Additionally, recall that “venting” does not qualify as “opposition” under Title VII. There is a good argument to be made that Ms. Richards was not complaining about harassment or discrimination, but merely blowing off steam about the boorish behavior of some follow conference goers.

Moreover, even if Title VII protects Ms. Richards’s online venting as “opposition,” it is doubtful she will be able to establish a nexus between her comments and the termination. Her employer did not terminate her because of the contents of her tweet, but because of the very public nature of her complaints. Had she raised the issue privately with her employer, it is fair to assume that she’s still be employed and we would not be having this healthy debate.

What do you think about Ms. Richards’s termination? Eric Meyer wants you to answer a short, one-question poll and let him know whether you think her firing was fair. I can’t wait to read the results.

Should employers be liable for conduct they cannot control? Fired for tweeting about third-party misconduct

While attending a conference, Adria Richards became offended by two attendees sitting behind telling inappropriate jokes. So, she tweeted her grievance. Then, she blogged about it. Then, her employer fired her. Ars technica has the full details.

If the people about whom Ms. Richards complained were co-workers, or they made the offensive comments while in her place of employment, she would have an easy retaliation claim. The perpetrators, however, did not work with Ms. Richards, and the only relation between the alleged misconduct and her employment is the coincidence that she had the experience at a conference she was attending on her employer’s dime.

The question, then, is whether Ms. Richards can claim retaliation based on complaints about which her employer was powerless to remedy?

At his Employer Handbook Blog, Eric Meyer argues that Ms. Richards’s complaints are protected by Title VII:

If a conference attendee engaged in behavior that amounts to discrimination or sexual harassment, then Ms. Richards’s social media complaints could amount to protected activity.

Remember also that even if the law does not technically recognize the actions of which Ms. Richards complained as unlawful discrimination, to engage in “protected activity,” she need only have a reasonable belief that what she experienced was unlawful.

I disagree. For Ms. Richards to have a reasonable belief that she experienced unlawful discrimination or harassment, her employer needs to be able to do something about the alleged discrimination or harassment. What could Richard’s employer have done? It couldn’t conduct an investigation. It couldn’t discipline the alleged perpetrators. All it could do is alert the conference of the issue and suggest that Ms. Richards distance herself from the situation.

Ms. Richards did not complain about illegal discrimination. She complained about boorish behavior by two individuals completely outside of her employer’s sphere of control. I do not believe Ms. Richards’s complaints in these circumstances should be protected. To hold otherwise would hold employers accountable for the behavior of the entire world, whether or not the employer has the ability to influence the conduct or punish the misconduct. Title VII’s anti-retaliation provisions should not cast this wide of a net.

Who's the "knucklehead?" Employee loses retaliation claim after slurring co-worker

The original "knucklehead"

Noreen Wilson worked as a pharmacist for The Cleveland Clinic. From August 24 through November 4, 2010, she racked up three corrective actions -- the first for calling a coworker a "knucklehead," the second for sending an improper email to a job applicant, and the third for disconnecting a telephone while a coworker was on a call. After the last corrective action, the hospital transferred Wilson to a different shift. Three days later, she applied for, and was granted, FMLA leave. She then appealed the corrective actions through the Clinic's internal processes. After the hospital rejected her appeal and upheld the correction actions, she resigned to take a job with a different employer. She then sued the Clinic for, among other things, FMLA retaliation relating to the corrective actions.

In Wilson v. CCF (N.D. Ohio 2/6/13), the district court concluded that the corrective actions were not "adverse" to support a claim of retaliation under the FMLA.

The Court finds that the corrective action Plaintiff received for calling a customer/coworker a "knucklehead" is not an adverse employment action.... Plaintiff received a corrective action for calling a coworker a "knucklehead." Plaintiff does not dispute doing so and therefore, cannot rely on this as evidence of constructive discharge when it was based on her own misconduct.

Exercising control to dole out legitimate discipline is not retaliation or discrimination. It's sound management of your people. Provided the punishment fits the crime, and provided the punishment is consistent with your past practices, you can discipline without fear of retribution.