Showing posts with label retaliation. Show all posts
Showing posts with label retaliation. Show all posts

Tuesday, January 30, 2018

Is employee copying of documents protected activity or unlawful stealing?


It’s a situation that plays out all too often. An employee emails a slew of documents to a personal email address, or drags them into a personal Dropbox, or copies them to a stick drive.

Your first instinct is to assume that the employee is engaged in something nefarious, fire the employee, and even sue for misappropriation of trade secrets/confidential information.

But might there be something else going on? What if, instead of competing against you, the employee is preparing to go to battle against you in a discrimination lawsuit?

Does an employee have a right to copy your documents to prepare a discrimination lawsuit?

Monday, November 27, 2017

Timing is everything when defending a retaliation claim


Miriam Valle worked as a ticket agent for Frank Martz Coach Company, until it fired her on January 27, 2016.

Two weeks prior, she had advised her immediate supervisor, Edward Steltz, that she needed to apply for FMLA leave for breast cancer surgery. Martz approved the leave to begin on January 19, and was scheduled to return to work on January 25 following her surgery. Complications pushed that return dated back by four days. Before she could return, however, Martz fired her following an investigation into complaints by co-workers that she had made violent threats (allegations which Valle denied).

In Valle v. Frank Martz Coach Company (M.D. Pa. 11/16/17), the court denied the employer’s motion for summary judgment and held Valle’s FMLA retaliation claim for trial.

Monday, August 28, 2017

Letter to employees during EEOC investigation may violate discrimination laws


Suppose an employee files an EEOC charge of discrimination against you. And, further suppose that during the investigation, you receive a request from the agency for the name and contact information for all similarly situated employees. You correctly assume at the EEOC may use the information to contact your employees for investigatory interviews.

Do you—
  1. Allow the EEOC process to proceed; or
  2. Inform your employees of the nature of the charge, the EEOC investigation, that the EEOC may contact them, and that their participation would be 100 percent voluntary?
If you choose option “2”, you may have violated federal discrimination laws, at least according to a Connecticut federal judge.

Thursday, August 24, 2017

The 16th nominee for the “worst employer of 2017” is … the rapid retaliator


The EEOC has sued an Atlanta cemetery company for firing an employee the day after the agency interviewed her as part of an on-going investigation.

Wednesday, June 28, 2017

More on why holding lawyers liable for retaliation to a client's employee is the worst idea


Yesterday’s post discussing Arias v. Raimondo as the worst employment-law decision of 2017 was way more controversial than I imagined. To me, it’s a no-brainer. It’s dangerous for courts to hold an employer’s lawyer liable for retaliation against the employees of the lawyer’s client. It will chill an attorney’s ability to give proper advice to one’s client, because anything that remotely could result in an employee suffering an adverse action could, under the logic of Arias, give rise to a retaliation claim. Then the comments rolled in:

Tuesday, June 27, 2017

Is this the worst employment law decision of 2017?


I’ll be vacationing in California with my family the first two week of July. After reading the 9th Circuit’s decision in Arias v. Raimondo—holding an employer’s attorney for liable for FLSA retaliation against his client’s employee because the employee sued his client for unpaid overtime—I’m thinking of adding the 9th Circuit to my list of tourist stops in San Francisco to see if courthouse resembles a Salvador Dali painting. Because this decision is flat out bonkers.

Thursday, May 4, 2017

6th Circuit says you can’t spell “cat’s paw” without F-M-L-A


It’s been six year since the Supreme Court decided, in Staub v. Proctor Hosp., which validated the “cat’s paw” as a valid theory of liability in discrimination cases. The “cat’s paw” seeks to hold an employer liable for the discriminatory animus of an employee who played no role in the decision, but nevertheless exerted some degree of influence over the ultimate decision maker.

An open issue in Staub‘s wake is whether other employment laws also apply the cat’s paw. For example, what about the FMLA? In Marshall v. The Rawlings Co. (4/20/17), the 6th Circuit concluded that the cat’s paw does apply in FMLA retaliation cases.

Monday, May 1, 2017

Wait, an employer can’t fire an employee on FMLA leave caught on Facebook on vacation?


Actual firing Facebook photo
Suppose you have an employee who takes FMLA leave for rotator-cuff surgery. Let’s say during said FMLA leave, you discover that the employee is vacationing on a Caribbean island. And, further suppose that you discover this employee’s island vacay via his own public Facebook posts, which included photos of him on the beach, posing by a boat wreck, and in the ocean. Or, more accurately the employee’s co-workers saw the photos and ratted him out to management.

So, what do you do?

Monday, April 10, 2017

Promotion after protected activity dooms employees retaliation claim


What does unlawful retaliation not look like? Burton v. Board of Regents of Univ. of Wisc. Sys. (7th Cir. 3/17/17) offers a good example.

Tuesday, April 4, 2017

The adverse action standard for retaliation is low (but not this low)


The legal standard for an “adverse action” to support a claim for workplace retaliation is pretty low. How low? According to the Supreme Court, an adverse action sufficient to support a claim for retaliation is any action that would dissuade a reasonable worker from complaining about discrimination.

But, is does it reach this low? In Bien-Aime v. Equity Residential (S.D.N.Y. 2/22/17), a federal court concluded that two managers’ general rudeness towards the plaintiff, which started only after the plaintiff filed a civil rights complaint, stood as a sufficient adverse action to support his retaliation claim.

Thursday, January 26, 2017

The 2nd nominee for the “worst employer of 2017” is … the recorded retaliator


Our next nominee for the Worst Employer of 2017 comes from my very own backyard—Cleveland Hopkins International Airport.

Here in Northeast Ohio  take our snow removal very seriously, especially (we hope) at the airport, where an icy or snow-covered runway could cause disaster. In 2015, airfield manager Abdul Malik-Al complained to his bosses about his belief that the airport did not sufficiently support its winter-weather crews. Those comments led to the FAA levying a $200,000 fine against the airport.

Wednesday, January 18, 2017

OSHA suggests employer best practices for anti-retaliation programs


The Occupational Safety and Health Administration has published recommended best practices to protect from retaliation employees who report workplace safety or other concerns under any of the 22 statutes OSHA enforces.

The document, entitled, Recommended Practices for Anti-Retaliation Programs [pdf], outlines five key elements of an effective anti-retaliation program:

Thursday, December 15, 2016

When a self-fondling supervisor earns the nickname “Mr. Bojangles,” it’s not going to end well


The EEOC reports that it has sued Goodwill Industries of the East Bay Area for sexual harassment and disability discrimination, following allegations made by disabled female nightshift janitors against their supervisor. The allegations are … disturbing:

Wednesday, September 14, 2016

When it’s better to be lucky than good


Employers, sometimes it is better to be lucky than to be good. Case in point? Graves v. Dayton Gastroenterology [pdf], decided yesterday by the 6th Circuit.

Tuesday, August 30, 2016

What employers can learn from EEOC's new Enforcement Guidance on Retaliation


Yesterday, the EEOC published its final Enforcement Guidance on Retaliation and Related Issues. It’s the agency’s first formal guidance on this issue since 1998, and was long overdue. After all, according to EEOC Chair Jenny R. Yang, “Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination.” She adds, “The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.”

Monday, July 25, 2016

Ohio Supreme Court sides with workers’ comp fraud


Ohio has a specific statute that protects injured workers from retaliation after filing a workers’ compensation claim. O.R.C. 4123.90 states:
No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer. 
It would seem that for this statute to protect an employee, the employee’s alleged injury must be an actual workplace injury.

Not so fast.

Tuesday, July 5, 2016

Employment at-will is dead


Last week, I suggested that the “FMLA is not a personnel-file eraser.”
One does not return from an FMLA leave with a clean performance slate. Instead, one returns with the same warts with which they left. And, if those warts merit discipline, or (gasp) even termination, then so be it.
In response, one commenter cautioned about being too cavalier with discipline or termination in the wake of an FMLA leave.

http://dilbert.com/strip/2015-09-08

Thursday, June 30, 2016

FMLA does not excuse poor performance


Earlier in the week, I discussed Tilley v. Kalamazoo, in which an employer took one on the chin for disciplining an employee for not doing his job while on an FMLA leave. That case, however, does not mean that the FMLA excuses prior poor job performance, or that an employer must ignore or excuse an employee’s performance deficiencies once an employee takes FMLA leave. Indeed, as Checa v. Drexel University [pdf] points out, it’s just the opposite.


Monday, June 13, 2016

6th Circuit says illegal retaliation doesn’t meet threshold for constructive discharge. Wait, what?!


Henry v. Abbott Laboratories (6/10/16) [pdf] is what I would call a curious case, and one that I plan to liberally use any time I’m defending a case in which claims both of discrimination/retaliation and constructive discharge are asserted.

Monday, March 14, 2016

Video killed the lawsuit star


If a picture tells a thousand words, then how many does a video tell?

Last week, the 6th Circuit affirmed the dismissal of a retaliation claim based on a video of an altercation that the plaintiff claimed she had not started.