Retaliation and Whistleblower Claims: New Developments and Best Practices to Avoid Litigation
April 26, 2011
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On April 26, 2011, Miller Law Group presented a webinar that explored how recent legal developments under California and federal law are fueling a rise in retaliation complaints, as well as whistleblower lawsuits. We examined the latest cases and regulatory changes in these areas, and provided best practices employers can implement to avoid the costs of having to defend their actions in court. The following are answers to frequently asked questions by webinar attendees.
Q: ARE EMPLOYERS WITH FEWER THAN 15 EMPLOYEES COVERED BY THE RETALIATION LAWS?
A: Yes, depending on the law. There are a wide range of retaliation protections contained in various federal and state laws, and the employer coverage is different for each law. For example, Title VII, the federal anti-discrimination law, only applies to employers with 15 or more employees. On the other hand, California’s anti-bias statute, the Fair Employment and Housing Act, applies if the employer has just five or more employees. And even wage and hour laws – which generally apply to all employers regardless of the number of employees -- have retaliation provisions.
Q: CAN SOMETHING AS MINOR AS CHANGING AN EMPLOYEE’S SCHEDULE BE CONSIDERED RETALIATORY?
A: Yes, depending on the circumstances. Whether an employment action supports a retaliation claim will depend on the facts of the particular case and should be judged from the perspective of a reasonable person in the employee's position. In Burlington N. & Santa Fe Ry. Co. v. White, the U.S. Supreme Court ruled that Title VII’s anti-retaliation provision prohibits employer actions that are materially adverse to a reasonable employee and are harmful to the point that they could well dissuade or deter a reasonable worker from making or supporting a charge of discrimination. By way of example, the Court noted that while a schedule change might not impact all employees, it "may matter enormously to a young mother with school age children."
On the other hand, some actions that would rarely rise to the level of an adverse action for purposes of a retaliation claim include: petty slights and minor annoyances; "snubbing" a colleague, although this could be retaliation if it is more severe such as excluding someone from important work meetings; or negative comments that are justified by an employee's poor work performance or history.
Q: YOU DISCUSSED THE RECENT SUPREME COURT DECISION APPROVING CLAIMS FOR “ASSOCIATIONAL RETALIATION.” HOW FAR DOES THIS PROTECTION GO? FOR EXAMPLE, WOULD THIS APPLY TO FRIENDS?
A: In Thompson v. North American Stainless LP, the U.S. Supreme Court held that Title VII prohibited discharging an employee's fiancée – who worked at the same company -- in order to retaliate against the employee for filing a charge of discrimination. The Court explained that “a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” However, the Court did not decide who falls within this zone of protection, other than to say that “firing a close family member will almost always meet” the retaliation standard but “inflicting a milder reprisal on a mere acquaintance will almost never do so.” As a result, it remains an open question as to who qualifies as a “close family member,” and whether friends, boyfriends, girlfriends, or even acquaintances could file retaliation actions. The best protection for employers is to ensure that all employment decisions are made for legitimate non-retaliatory reasons, regardless of the relationship to an employee who has complained.
Q: WE HAVE AN EMPLOYEE COMPLAINT HOTLINE. SHOULD WE POST THE HOTLINE NUMBER VISIBLY, FOR ALL TO SEE, OR SHOULD IT JUST BE IN OUR EMPLOYEE HANDBOOK?
A: One benefit of having an employee complaint hotline is that it can encourage employees to report workplace issues early, before the problems grow into lawsuits. Therefore, it’s important to openly communicate to employees that a hotline is available, and to make sure they have easy access to the hotline number in case it is needed. While placing the phone number in an employee handbook is advisable, employers should take additional steps to publicize the hotline.
Q: HOW CAN WE AVOID THE SITUATION WHERE AN EMPLOYEE, KNOWING THEY ARE ABOUT TO GET FIRED, MAKES A COMPLAINT ON AN UNRELATED MATTER, SEEMINGLY IN ORDER TO GAIN PROTECTION FROM RETALIATION?
A: Unfortunately, this scenario does occur, and if you have not taken preventive measures, you may be hamstrung by the possibility that the employee will claim retaliation. Preventive measures include making sure that you consistently and thoroughly document employee performance and misconduct issues, so if the time comes to take disciplinary action, you will have the paper trail to demonstrate that your actions were for legitimate reasons, and not retaliatory. In addition, it is critical that supervisors be instructed that all status-changing employment decisions, particularly those involving an employee who has recently complained, must be reviewed by HR or a higher-level manager. Also, if it becomes necessary, for reasons unrelated to the protected activity, to take disciplinary action against an employee who has complained, be sure to first review how you have treated similarly situated workers in the past and the terms of company policies and practices to ensure the current employment action is consistent and justifiable.
Miller Law Group exclusively represents business in all aspects of California employment law, specializing in litigation, risk management, wage and hour class actions, ERISA litigation, and appellate law. If you have questions about your workplace obligations, please contact Michele Ballard Miller (mbm@millerlawgroup.com) or Carolyn Rashby (cr@millerlawgroup.com), or call 415-464-4300.
This webinar and Question and Answer Summary are presented by Miller Law Group to review recent developments in employment law. This material is designed to provide informative and current information as of the date of the webinar and should not be considered legal advice.
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