Category Archives: Retaliation

November 3, 2016

$4.25M Age Discrimination and Retaliation Verdict Tough Pill For Abbott Laboratories To Swallow

By Steve GutierrezGutierrez_Steven

Four-and-a-quarter million dollars. That is what a federal jury recently awarded an ongoing employee at Abbott Laboratories for her age discrimination and retaliation claims. What caused the jury to award such a large amount in damages? Here is a look at the facts, followed by tips on how to avoid such liability when dealing with older employees.

All Seems Fine—Until Employee Hits Her Fifties

Luz Gonzalez-Bermudez (Gonzalez) has worked for Abbott since 1984, beginning her career as a pharmaceutical representative followed by promotions that ultimately made her the HCP national sales manager. In that role, Gonzalez was classified in Abbott’s compensation system as a Level 18 position, warranting a six-figure salary, an annual incentive bonus, stock options, and a company car.

But, eighteen months after her promotion to the HCP national sales manager, when Gonzalez was about 51 years old, her position was eliminated and she was demoted to a marketing manager position. Her new job was a Level 17 position, but Abbott allowed her to keep her Level 18 compensation and benefits for up to two years.

In the marketing manager position, Gonzalez reported to Kim Perez, the Director of Marketing (and later, the General Manager). Perez evaluated Gonzalez’s performance as a marketing manager negatively. Gonzalez complained internally that Perez was creating a hostile work environment, due to repeatedly asking her about outstanding work, sending a lot of emails following up on pending matters, and a lack of communication about things Gonzalez needed to know to do her job.

When Gonzalez’s two years of Level 18 compensation was up, Perez and the Human Resources Director told her that she had been assigned a Product Manager position, which was a Level 15 classification. At that level, Gonzalez took a pay cut, lowered bonus, loss of stock options, and lowered company car benefits.

Employee Lawyers Up 

About six months later, Gonzalez’s attorneys sent a letter on her behalf to Perez and others at Abbott, notifying them that they had been retained to represent her in any age discrimination claims that Gonzalez may have against them. Despite the letter, Abbott did not conduct an investigation into any possible claims. Shortly thereafter, Gonzalez filed an administrative charge with the Antidiscrimination Unit of the Puerto Rico Department of Labor and Human Resources alleging age discrimination and retaliation. Read more >>

October 24, 2016

OSHA Issues Final ACA Retaliation Complaint Procedures

linton_mBy Matthew Linton

The Occupational Safety and Health Administration (OSHA) published its final rule establishing procedures and time frames for handling whistleblower complaints under the Affordable Care Act (ACA). The ACA protects employees from retaliation for raising concerns regarding conduct that they believe violates the consumer protections and health insurance reforms found in Title I of the ACA. It also protects employees from retaliation for receiving Marketplace financial assistance when purchasing health insurance through an Exchange. 

“This rule reinforces OSHA’s commitment to protect workers who raise concerns about potential violations of the consumer protections established by the Affordable Care Act or who purchase health insurance through an Exchange,” said Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health.

OSHA’s Affordable Care Act fact sheet provides more information regarding who is covered under the ACA’s whistleblower protections, protected activity, types of retaliation, and the process for filing a complaint and is available here.

Notably, the ACA’s whistleblower protections also provide for a private right of action with de novo review in U.S. District Court to the complaining individual if the agency does not issue a final decision within certain time limits.

September 6, 2016

Tips For Avoiding Retaliation Claims Under EEOC’s New Guidance

Bryan_Benard of Holland & HartBy Bryan Benard

In recent years, the Equal Employment Opportunity Commission (EEOC) has received more retaliation charges than any other type of discrimination claim. Last year, almost 45 percent of EEOC charges included an allegation of retaliation – yes, almost half!

Because of the alarming frequency of charges and the need for employees to report discrimination without fear of reprisal, the EEOC recently issued a new enforcement guidance on retaliation that replaces and updates its 1998 compliance manual on the subject. Even though the EEOC’s position is not necessarily the final word on these issues, as courts often disagree with the EEOC’s interpretation of federal discrimination laws, employers should know how EEOC  staff, including its investigators and litigators, will approach retaliation charges. Here is a look at the new guidance with tips on how to avoid becoming another retaliation charge statistic.

Overview of Retaliation and Protected Activities

The federal discrimination laws enforced by the EEOC, such as Title VII, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA) and others, prohibit employers from taking adverse action against an employee or applicant because the individual engaged in “protected activity.” Adverse actions that can be seen as retaliatory by the EEOC include not just discipline or discharge, but also transferring the employee to a less desirable position or shift, giving a negative or lower performance evaluation, increasing scrutiny, or making the person’s work more difficult.

“Protected activity” falls into two categories: participation and opposition. Participation activity is when an individual “participates” in an EEO process, which can include filing a charge, being involved in an investigation, or testifying or serving as a witness in a proceeding or hearing. Opposition activity is when an individual complains, questions, or otherwise opposes any discriminatory practice. Employees have the right to engage in both types of protected activity without being subject to retaliation from their employer.

Harassment As Retaliation

According to the EEOC, harassing conduct can be seen as retaliation, even if it does not rise to the level of being severe or pervasive enough to alter the terms and conditions of employment. The agency states that harassment can constitute actionable retaliation so long as the conduct is sufficiently material to deter protected activity in the given context.

Evidence That May Support a Retaliation Finding

To determine whether there is a causal connection between a materially adverse action and the individual’s protected activity, the EEOC will consider different types of relevant evidence, alone or in combination. Some of the facts that may lead to a retaliation finding include:

  • Suspicious timing, especially when the adverse action occurs shortly after the individual engaged in protected activity;
  • Inconsistent or shifting explanations, such as where the employer changes its stated reasons for taking the adverse action;
  • Treating similarly situated employees more favorably than the individual who engaged in protected activity;
  • Statements or other evidence that suggest the employer’s justification for taking the adverse action is not believable, was pre-determined, or is hiding a retaliatory reason.

Read more >>

June 8, 2016

Prayer Breaks Present Difficult Religious Accommodation Issue

Collis_SBy Steven Collis

Recent news stories describe the tension between Muslim workers seeking multiple prayer breaks at specified times during their workday and employers who need those workers on their assembly lines. Many Muslim employees, including some in Colorado, have walked off the job, claiming their prayer requests have been unlawfully denied. With religious accommodations cases in the news, let’s look at how to handle these tricky situations.

Case In Point

The Muslim faith requires five daily prayers at specific times of the day, such as pre-dawn and sunset. Ariens Company, a manufacturer of lawn mowers and snowblowers, previously had allowed 53 Somali immigrant Muslim production workers to leave their work stations to pray at times required by their faith. In recent months, however, Ariens decided not to accommodate special prayer breaks, requiring instead that workers only leave their assembly-line positions during their two 10-minute breaks per shift. Although Ariens provides prayer rooms that the Muslim employees may use for their daily prayers, it says it costs too much in lost productivity to shut down an assembly line for unscheduled prayer breaks.

In January of this year, the Muslim employees walked off their jobs to protest Ariens’ policy which they say forces them to choose between their religion and their jobs. By February, many had returned to work but seven were fired for continuing to take unscheduled prayer breaks and 14 resigned because of the policy.

The issue has attracted the attention of the news media as well as advocacy groups, including the Council on American-Islamic Relations. The group planned to file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC), alleging that Ariens failed to reasonably accommodate the Somali Muslim workers’ religious beliefs.

Religious Discrimination Prohibited

Title VII and the Colorado Anti-Discrimination Act (CADA) both prohibit employment discrimination on the basis of religion. These laws protect against offering less favorable terms or conditions of employment, such as pay, job assignments, promotions, training, fringe benefits, etc., as well as prohibiting workplace harassment and retaliation based on religion.

Title VII defines “religion” very broadly to include organized religions, such as Christianity, Judaism, Islam, Hinduism, and Buddhism, as well as sincerely held religious beliefs that are not part of a formal church or sect. In determining whether a practice or belief is religious under Title VII, the inquiry is whether it involves moral or ethical beliefs as to right and wrong which are sincerely held with the strength of traditional religious views. Title VII also extends workplace protections to those who are discriminated against because they do not believe in religion or a particular set of religious beliefs.

CADA also embraces a broad definition of religion and creed. Colorado’s Civil Rights Commission regulations define religion to mean all aspects of religious observance, belief and practice that need not be part of a particular organized religion, sect, or faith.

Reasonable Religious Accommodations

Under both federal and state law, Colorado employers have a duty to reasonably accommodate the religious practices or observances of employees, unless doing so would result in an undue hardship. An applicant or employee must make the employer aware of the need for an accommodation and that it is being requested due to a conflict between a work policy or requirement and a religious belief or observance.

Common types of religious accommodations that may be required include:

  • scheduling changes, voluntary substitutes, and shift swaps
  • providing an exception to your dress or grooming policy
  • use of the work facility for a religious observance
  • accommodating prayer or other types of religious expression
  • lateral transfer or change of job assignments

Importantly, an employer may not deny employment to an applicant based on an assumption that the applicant will need a religious accommodation. Following the Supreme Court’s 2015 decision in EEOC v. Abercrombie & Fitch Stores, Inc., if an applicant can show that the need for a religious accommodation is a “motivating factor” in the employer’s decision not to hire him or her, the employer violates Title VII, regardless of whether the employer had actual knowledge of the applicant’s religious beliefs or whether he or she will actually need an accommodation. Read more >>

June 6, 2016

Colorado’s New Pregnancy Accommodation Law

By Micah Dawson

Effective August 10, 2016, Colorado employers will commit an unfair employment practice if they fail to provide a reasonable accommodation for an employee, or an applicant for employment, for health conditions related to pregnancy or physical recovery from childbirth, absent an undue hardship. Last week, Colorado Governor John Hickenlooper signed into law House Bill 16-1438 which requires Colorado employers to engage in an interactive process to assess potential reasonable accommodations for applicants and employees for conditions related to pregnancy and childbirth. The new law, section 24-34-402.3 of the Colorado Anti-Discrimination Act, also prohibits employers from denying employment opportunities based on the need to make a pregnancy-related reasonable accommodation and from retaliating against employees and applicants that request or use a pregnancy-related accommodation.

 Posting and Notification Requirements

The new law imposes posting and notification requirements on Colorado employers. By December 8, 2016 (120 days from the effective date), employers must provide current employees with written notice of their rights under this provision. Thereafter, employers also must provide written notice of the right to be free from discriminatory or unfair employment practices under this law to every new hire at the start of their employment. Employers in Colorado also must post a written notice of rights in a conspicuous place at their business in an area accessible to employees.

For more information on this new law, read our full post about its requirements here.

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May 11, 2016

Colorado Pregnancy Accommodation Bill Passes

By Micah Dawson

The Colorado legislature passed House Bill 16-1438 requiring Colorado employers to engage in an interactive process to assess potential reasonable accommodations for applicants and employees for conditions related to pregnancy and childbirth. The bill, expected to be signed into law by Governor Hickenlooper, will ensure that employers engage in the interactive process, provide reasonable accommodations to eligible individuals, prohibit retaliation against employees and applicants that request or use a pregnancy-related accommodation, and provide notice of employee rights under this law. Once signed by the Governor, the new law will go into effect on August 10, 2016.

Pregnancy-Related Workplace Accommodations

This law will add a new section, section 24-34-402.3, to the Colorado Anti-Discrimination Act, making it an unfair employment practice for you to fail to provide a reasonable accommodation for an applicant for employment, or an employee, for health conditions related to pregnancy or physical recovery from childbirth, absent an undue hardship on your business. You also may not deny employment opportunities based on the need to make a pregnancy-related reasonable accommodation.

Interactive Accommodation Process 

You will need to engage in a “timely, good-faith, and interactive process” with the applicant or employee to determine effective reasonable accommodations.

Examples of reasonable accommodations include but are not limited to:

  • more frequent or longer breaks
  • more frequent restroom, food and water breaks
  • obtaining or modifying equipment or seating
  • temporary transfer to a less strenuous or hazardous position, if available (with return to the current position after pregnancy)
  • light duty, if available
  • job restructuring
  • limiting lifting
  • assistance with manual labor, or
  • modified work schedules.

In engaging in this process, you need to be sure to document your good-faith efforts to identify and make reasonable accommodations because doing so can negate punitive damages if an individual sues you for failure to make a pregnancy-related accommodation. You may require that the employee or applicant provide a note from her health care provider stating the need for a reasonable accommodation.

No Forced Accommodations or Leave 

Under the new law, you may not force an applicant or employee affected by pregnancy-related conditions to accept an accommodation that she has not requested, or that is unnecessary to perform the essential function of her job. Similarly, you may not require a pregnant employee to take leave if there is another reasonable accommodation that may be provided. As stated in the legislative declaration for the bill, the intent is to keep pregnant women employed and generating income so forcing pregnant women to take time off during or after their pregnancy generally is not permitted.

Analyzing Undue Hardship Of Accommodations 

Reasonable accommodations may be denied if they impose an undue hardship on your business. That requires an analysis of the following factors in order to decide whether the accommodation would require significant difficulty or expense:

  • the nature and cost of the accommodation
  • the overall financial resources of the employer
  • the overall size of the employer’s business with respect to the number of employees and the number, type, and location of the available facilities, and
  • the accommodation’s effect on expenses and resources or its impact on the operations of the employer.

Broad Definition of “Adverse Action” in Retaliation Prohibition 

The new law prohibits you from taking adverse action against an employee who requests or uses a reasonable accommodation for a pregnancy-related condition. An adverse action is defined very broadly as “an action where a reasonable employee would have found the action materially adverse, such that it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” This approach harkens to the NLRB’s use of a “chilling effect” on employee rights as a basis for unfair labor charges. By not limiting an adverse action to concrete actions, such as a termination, demotion, pay reduction, or similar actions, the broad definition opens the door to a wide range of employer responses that could be deemed retaliation.

Notifying Employees of Their Rights

If signed into law, you will have until December 8, 2016 (120 days from the effective date) to provide current employees with written notice of their rights under this provision. Thereafter, you also must provide written notice of the right to be free from discriminatory or unfair employment practices under this law to every new hire at the start of their employment. You also have to post the written notice in a conspicuous place at your business in an area accessible to employees.

What To Do Now 

With enactment almost certain, prepare now to comply with this new pregnancy accommodation requirement. A checklist of action items includes:

  • Review and update job descriptions to designate essential functions of each job.
  • Update your accommodation policies and handbook to include pregnancy-related accommodations and information on how employees may request such an accommodation.
  • Train your supervisors, managers, and human resources department on the new accommodation requirements and the anti-retaliation provision.
  • Prepare written notifications of employee rights to send to current employees no later than December 8, 2016.
  • Include the written notification of rights in your onboarding materials so that after December 8, 2016, all new hires receive the notice.
  • Post the written notification of rights in a conspicuous place accessible to employees, such as your lunch room bulletin boards, intranet, or wherever other required employment law posters are posted.

April 6, 2016

Fired HR Manager Has FLSA Anti-Retaliation Claim

By Jason RitchieRitchie_J

When a manager voices work-related concerns to company executives, does that constitute a complaint triggering anti-retaliation protection, or is it simply part of his or her job? The Ninth Circuit Court of Appeals recently answered that question in the FLSA context and their decision may surprise you.

FLSA Anti-Retaliation “Fair Notice” Requirement

The Fair Labor Standards Act (FLSA) prohibits employers from retaliating against an employee who has “filed any complaint,”  instituted any proceeding, or testified in any proceeding alleging a violation of the FLSA. To determine whether an employee has “filed any complaint” under this anti-retaliation provision, the U.S. Supreme Court has established a “fair notice” test, stating that a complaint must be “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” In other words, the employer must have fair notice that an employee is making a complaint that could subject the employer to a later claim for retaliation.

Different Standards For Managers and Non-Managers

Most managers are also employees, as defined by the FLSA. That means that managers can be protected by the FLSA anti-retaliation provision. But, in most companies, managers are expected to voice work-related concerns and recommend changes in policies and procedures to their superiors as part of their duties. In fact, managers who are responsible for ensuring that their company comply with applicable laws necessarily need to report potential compliance issues to upper-level executives. Consequently, managers are in a different position when reporting possible FLSA violations to their boss than a front-line employee would be, making it difficult to determine whether a manager’s compliance concerns amount to a “complaint” within the scope of the FLSA anti-retaliation provision.

Numerous other federal appellate courts deciding this issue have formulated a rule that looks at whether the manager stepped outside his or her role of representing the company when making a complaint. In order for the manager to have engaged in protected activity, he or she must have either filed (or threatened to file) an action adverse to the employer, actively assisted other employees in asserting FLSA rights, or otherwise engaged in activities that reasonably could be perceived as directed towards the assertion of rights protected by the FLSA.

The Ninth Circuit (whose decisions apply to many Western states, including Montana,California, Idaho, Nevada, Oregon, and Washington) flatly rejected that rule. Declining to adopt such a bright-line test, the Court ruled that the determination instead rests on a case-by-case analysis, looking to the content and context of the complaint to see whether the employer had fair notice. The fact that a complaining employee is a manager is only one consideration to be included when weighing the content and context of the complaint.

HR Manager Escalated Pay Concerns Prior To Her Termination

In the case before the Ninth Circuit, Alla Rosenfield was hired by GlobalTranz Enterprises as its Manager of Human Resources. Over the next year, the company promoted Rosenfield to Director of Human Resources and later added Director of Corporate Training to her title. Throughout that year, Rosenfield reported to her superiors that the company was not complying with the FLSA.

Specifically, Rosenfield verbally complained to management at least eight times that the company was not in compliance with the FLSA. She raised the subject of FLSA violations in at least 27 weekly and monthly reports to her superiors. On some occasions, she provided copies of the statute and provided specific examples where she believed the company had misclassified a large number of employees. She also requested changes in the payment of wages for those employees.

Rosenfield’s boss disapproved of her complaints. He considered himself the sole person responsible for FLSA compliance and as such, he made it clear to Rosenfield that he did not want or expect her to determine whether the company was in compliance. Five days after Rosenfield documented the company’s non-compliance and complaint to her boss again, he fired her. She sued, alleging that GlobalTranz and its executives had violated the FLSA’s anti-retaliation provision. After the district court granted summary judgment to the employer on the FLSA retaliation claim, she appealed to the Ninth Circuit.

The Ninth Circuit overturned the summary judgment in favor of the company, sending the case back to the lower court to continue proceedings. The Court focused on the fact that because FLSA compliance was not part of Rosenfield’s responsibility, her complaints about FLSA non-compliance and her advocacy for the rights of employees to be paid in accordance with the FLSA could not reasonably have been understood by the company to be merely a part of her regular duties. The Court ruled that a jury could reasonably find that Rosenfield had indeed filed a complaint that triggered FLSA anti-retaliation protection. Rosenfield v. GlobalTranz Enters., Inc., No. 13-15292 (9th Cir. Dec. 14, 2015).

Dissent Would Have Required Manager to Step Outside Role

The three judges on the Ninth Circuit panel did not all agree on the outcome of this case. One judge dissented, disagreeing that the Supreme Court’s “fair notice” test should outweigh the manager test articulated by the other appellate courts. Judge Dee Benson would have required that Rosenfield show that she stepped outside of her role as a manager in doing something adverse to her employer in order to establish that she “filed any complaint” within the meaning of the FLSA anti-retaliation provision.

Treat Internal Complaints With Care

This decision is troubling as it makes it very difficult for employers to know when a supervisor or manager is engaging in protected conduct that may trigger retaliation protection in the future. Take seriously any internal reports by managers related to pay issues and potential FLSA violations. If you intend to take any type of adverse action against a manager, review first whether he or she has any reported FLSA concerns so you may evaluate the risk that your action will be deemed retaliatory.

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October 12, 2015

FMLA Leave Is Not The Time To Reevaluate Employee’s Position

Vilos_JBy Joanna Vilos 

An employee’s extended FMLA leave can often reveal interesting business realities. Perhaps the employee wasn’t performing as well as you previously thought. Or maybe the work can easily be done by others. Despite what you learn, reevaluating the employee’s position while he or she is out on leave is risky business. 

When Leave Opens Your Eyes 

A well-performing employee is severely injured in a car accident. You provide time off for his serious health condition under the Family and Medical Leave Act (FMLA). However, while he is out on leave, you decide that his department functions just fine (or better!) without him. Perhaps you realize that his position really isn’t needed at all. What can you do? May you eliminate his position? Does it matter that you had considered restructuring his position prior to his leave? The Tenth Circuit Court of Appeals (whose decisions apply to Wyoming, Colorado, Utah, New Mexico, Kansas and Oklahoma) addressed this scenario, offering insight into how to address these difficult business decisions. Janczak v. Tulsa Winch, Inc., No. 14-5071 (10th Cir. July 20, 2015). 

FMLA Job Restoration 

The FMLA provides unpaid, job-protected leave for certain qualifying reasons, including a serious health condition that makes the employee unable to perform the functions of his or her position. When an employee returns from FMLA leave, he or she must be returned to the same job or an equivalent job that is virtually identical to the original job in terms of pay, benefits, shift, location and other conditions. 

Employers can find themselves liable for violating the FMLA if they interfere with an employee’s exercise of his or her FMLA rights or otherwise deny the rights, benefits or protections provided under the FMLA. Employers also risk an FMLA claim if they retaliate against an employee who has taken FMLA leave. 

Interference Claims 

Does the FMLA prevent you from taking any adverse employment actions that affect an employee who went out on FMLA leave? What if the employee was earmarked for a demotion or termination prior to going out on leave? Or perhaps your company loses a big contract while the employee is out on leave, necessitating a reduction in force. Will you be liable then? 

To establish an FMLA interference claim, the employee must show three things: (1) the employee was entitled to FMLA leave; (2) that the employer took some adverse action that interfered with the employee’s right to take FMLA leave; and (3) the employer’s action was related to the exercise or attempted exercise of the employee’s FMLA rights. An employer defending against an interference claim has the burden of proving that it would have taken the adverse employment action regardless of the employee’s FMLA leave. 

Case In Point 

In the recent Tenth Circuit case, Paul Janczak had served as Tulsa Winch’s General Manager of its Canadian operation for two years before he needed to use FMLA leave to recover from a vehicle accident. At the start of his leave, company leadership did not tell Janczak that his position might be eliminated and in fact, had recently indicated that it was looking forward to seeing him demonstrate his leadership skills after the departure of Janczak’s boss. Tulsa Winch’s president wrote an email stating that he planned to “further evaluate Paul’s ability to provide the necessary leadership” after his return from FMLA leave. He also announced that two new hires would report directly to the General Manager in Canada (suggesting the GM position would continue to exist) and that Janczak would likely return to work and be able to travel that September. 

The company claimed, however, that it had already begun discussing whether there was a need for a General Manager in Canada prior to Janczak’s leave and that it came to the decision to eliminate the position and terminate his employment while he was still out on leave. It pointed to its development of a matrix reporting structure that allowed most of the Canadian department heads to report directly to the executives at corporate headquarters in Oklahoma. Though an email from the company’s director of human resources identified “supporting Paul (upon his return)” as an agenda item, other meeting notes included entries such as “Rowland as next GM,” “Spurgeon vs Janczak,” “phase PZ out,” and “what is plan for Paul – eliminate position.” 

Tulsa Winch terminated Janczak immediately upon his return from FMLA leave. It also fired its longtime Canadian Controller, due to the matrix restructuring. 

Janczak filed both interference and retaliation claims against Tulsa Winch. The company argued that it would have fired Janczak even if he had not taken FMLA leave so Janczak’s claims must fail. The district court in Oklahoma agreed, granting summary judgment to Tulsa Winch. Janczak appealed to the Tenth Circuit Court of Appeals which reversed on his interference claim, finding that a reasonable jury could find that Tulsa Winch interfered with Janczak’s FMLA leave. 

Contemplating Adverse Action Not Enough  

The Tenth Circuit made it clear that simply considering the elimination of Janczak’s GM position before he took FMLA leave was not sufficient to permit summary judgment. Instead, to avoid a trial on the interference claim, the employer needs to show that termination would certainly have occurred regardless of the leave. 

Circumstances where employers have successfully established that the company would have definitively taken the adverse employment action regardless of the employee’s request for FMLA leave include: 

  • employee failed to comply with a direct and legitimate order from her supervisors;
  • overwhelming evidence of performance issues that predated the leave;
  • employee who had repeatedly been tardy and did not comply with absence policy on the date she was terminated;
  • employee who, prior to leave, had been tardy, absent from her desk and failed to timely pay invoices or update a list of services received from vendors; and
  • the decision to institute a reduction in force had already been made before the employee took leave. 

Proving that these decisions were unrelated to the employee’s leave requires that the evidence be well documented and undisputed. As stated in the court’s opinion, the question is not whether a reasonable jury could find in favor of the employer, “but rather whether the evidence is so one-sided that submission to a jury is not required.” That means that if the evidence supporting the employer’s claim that the employee was fired for reasons unrelated to the leave is disputed or shows that the company was merely uncertain about the employee’s future, the interference claim will not be dismissed at the summary judgment stage and instead, will go to a jury to decide. 

In Janczak’s case, the Tenth Circuit found that there was conflicting evidence as to when the decision was made to terminate him, concluding that a jury could determine that the decision to eliminate Janczak’s position was related to his medical condition and his exercise of FMLA leave. The court stated: 

Though taking advantage of Janczak’s absence to reevaluate the value of his contributions to the company might appear a prudent economic decision in the abstract, protecting ill or caregiving employees from the effects of such a decision is precisely the purpose of the FMLA. 

Retaliation Claim Failed Where Employee Not Restored to Job 

The Tenth Circuit rejected Janczak’s retaliation claim, finding that he failed to show that Tulsa Winch’s reasons for terminating him (i.e., the general reorganization of managerial responsibilities) was pretext for retaliation based on his taking FMLA leave. The court noted that in a typical FMLA retaliation claim, the employee has been restored to his or her prior employment status and then suffers an adverse employment action based on incidents after the return to work. Here, Janczak was never restored to his prior employment status, leaving the court to conclude that it fits into an interference theory rather than a retaliation theory. 

To further explain the difference between FMLA interference and retaliation claims, the court said this: 

Resolving the interference claim involves a fundamentally causal inquiry: whether Janczak’s taking FMLA leave was causally connected to his termination. In contrast, resolving the retaliation claim involves an inquiry into motivation: whether [Tulsa Winch’s] proffered rationale for terminating Janczak was mere pretext for its true, retaliatory motivation. Though causation and motivation frequently align, the difference between interference and retaliation claims illustrates that such alignment is not always necessary. 

Practical Lessons Learned 

Deciding to impose an adverse employment action on an employee who has exercised their FMLA rights is fraught with potential risk of liability. But you should not feel hamstrung to keep an employee who would have been terminated had he or she not taken FMLA leave. 

Before taking such action, talk to the decision-makers to ensure everyone is on the same page about the reasons for the termination. Ask the tough questions, including whether you would indeed make the same decision if the employee had not gone out on leave. Make sure you are treating this employee the same as other similarly situated employees who have not taken FMLA leave. And review your documentation to make sure it supports your decision. Remember, merely contemplating an action, such as eliminating the employee’s position or terminating for poor performance, prior to the employee’s leave will not be sufficient to establish that you did not interfere with the employee’s FMLA rights, sending the claim to a jury.

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October 9, 2015

Idaho Whistleblower Awarded Over $100K in Punitives After Retaliatory Discharge

Howland_PBy Pam Howland 

Firing an employee who reports that your workplace is unsafe is rarely a good idea. Firing that employee within days after the Occupational Safety and Health Administration (OSHA) issues citations and penalties based on the reported safety violations almost guarantees that your termination decision will be deemed retaliatory. An Idaho employer is finding that out the hard way after a federal judge ordered last week that it pay a discharged employee his lost wages plus $100,000 in punitive damages. Perez v. Sandpoint Gas N Go & Lube Ctr., No. 2:14-cv-357 (D. Idaho Sept. 29, 2015). 

Safety Concerns Not Rectified 

Daniel Kramer worked at the Sandpoint Gas N Go & Lube Center, owned and managed by Sydney Oskoui. Kramer informed Oskoui that employees were being exposed to unsafe working conditions that potentially violated OSHA’s safety standards. He reported that employees at the Lube Center faced the following dangerous conditions: 

  • exposed wiring near water leaks which could result in an electrical shock;
  • no nets over open automotive service bays which presented a fall hazard;
  • expired fire extinguishers;
  • no first-aid kit or eyewash station; and
  • no hard hats for employees. 

According to the lawsuit, the Lube Center did not repair or make any changes to alleviate the potentially unsafe conditions reported by Kramer. 

OSHA Investigation Confirms Safety Violations 

On February 12, 2012, Kramer notified OSHA about the unsafe working conditions at the Lube Center. Three days later, a Compliance Safety and Health Officer from OSHA’s Boise Area Office went to the Lube Center to conduct an investigation. The Officer found five violations of mandatory safety and health standards that presented a risk of death or serious bodily injury. An additional two violations that presented an other-than-serious risk were also found. 

On April 12, 2012, OSHA notified the Lube Center and Oskoui that it would be issuing citations and penalties as a result of its findings from the inspection. Just four days later, on April 16, 2012, the Lube Center fired Kramer and another employee who it suspected had also filed an OSHA complaint. 

Whistleblower Complaint Follows 

After being terminated within days of the OSHA notice of citations and penalties, Kramer filed a whistleblower complaint with OSHA alleging that he was discriminated against in retaliation for filing his safety concerns. OSHA investigated his whistleblower complaint and agreed that his termination violated the Occupational Safety and Health Act. In August of 2014, the Secretary of Labor filed a whistleblower lawsuit against the Lube Center and Oskoui in federal court in Idaho on behalf of Kramer. 

Default Judgment Award of Lost Wages and Punitive Damages 

Despite admitting to six violations of mandatory OSHA safety standards and paying a civil penalty as a result of those violations, Oskoui attempted to get the lawsuit dismissed. At times, he tried to represent his company, the Lube Center, himself. Court rules, however, require that a corporation be represented by an attorney. 

After more than a year of legal wrangling, Chief Judge B. Lynn Winmill entered a default judgment against both the Lube Center and Oskoui. His order requires that the Lube Center and Oskoui pay Kramer $979.25 in lost wages, plus pre- and post-judgment interest. More significantly, the defendants are ordered to pay Kramer $100,000 as punitive damages for the OSHA violations. The judgment also must be posted on employee bulletin boards at the Lube Center for 90 days. Both the Lube Center and Oskoui personally are on the hook for these amounts as the Judge held them jointly and severally liable. 

Handling Whistleblowers and Avoiding Retaliation 

Oskoui is appealing the default judgment but regardless of the result of his appeal, a great deal of time and expense could have been avoided had he handled Kramer’s safety concerns differently. Lessons from this case are clear. First, treat an employee’s safety concerns seriously. If Oskoui had investigated Kramer’s concerns when they were raised internally before Kramer went to OSHA, Oskoui may have discovered that conditions did indeed violate mandatory OSHA safety standards and he could have taken steps to rectify them before OSHA became involved. Second, if an employee files a complaint with OSHA, do not discharge them in retaliation for that complaint. Whistleblowers have protections and you add new violations and face additional liability for retaliating against the employee who raised the safety issues. Finally, do not skimp when it comes to safety. Your money is better spent fixing the unsafe conditions than paying a whistleblower $100,000 in punitive damages. 

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September 15, 2015

Wyoming Discrimination Charges: A Look at the Numbers

Cave_BBy Brad Cave 

Mark Twain is credited with saying that “facts are stubborn things, but statistics are more pliable.” The Wyoming Labor Standards Division and the EEOC both keep statistics of the types of discrimination charges the agencies receive from Wyoming employees. When it comes to discrimination charges, the allegations are almost always pliable, but the statistics show us some interesting things for employers to ponder.

Wyoming Labor Standards Charges 

The Wyoming Fair Employment Practices Act makes it unlawful for employers to discriminate on the basis of age, sex, race, creed, color, national origin, ancestry, pregnancy or disability. The Wyoming Department of Workforce Services’ Labor Standards Division is the state agency that processes and investigates most complaints of employment discrimination filed by Wyoming workers. 

In 2014, the Wyoming Labor Standards Division received a total of 203 discrimination charges. It processed 182 of those charges and deferred the remaining 21 charges to the federal Equal Employment Opportunity Commission (EEOC) because they were either untimely under state law or contained allegations of Equal Pay Act violations. The Division reports the breakdown of 2014 charges by allegation as follows: 

Type

No. of Charges

Percentage of Total Charges

Retaliation

76

41.8%

Sex

55

31.2%

Disability

46

25.3%

Age

33

18.1%

National Origin

27

14.8%

Race

21

11.5%

Religion

  7

  3.8%

You math wizzes in the audience have already exclaimed that the percentages exceed 100%, and the author must be numerically challenged. But, many charges include allegations of multiple types of discrimination. Indeed, charges often include an allegation of discrimination on the basis of protected class, and an allegation of retaliation in response to complaints about the discrimination. As you can see, Wyoming had more retaliation charges than any other type of charge. That mirrors the nationwide statistics where retaliation charges lead the list of most-filed charges. Not far behind are sex discrimination charges, with disability charges as the third most-frequently filed. 

EEOC Charge Statistics for Wyoming Charges 

The EEOC also maintains charge statistics for each type of discrimination that is alleged under the federal discrimination laws that it enforces, and annually publishes those statistics on a state-by-state basis.The EEOC count includes charges under Title VII, which prohibits discrimination on the basis of sex, race, color, religion and national origin, as well as charges under other federal discrimination laws such as the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act. 

The EEOC’s most recent data for fiscal year 2014 (Oct. 1, 2013 through Sept. 30, 2014) shows that the federal discrimination charges for Wyoming received by that agency track the Labor Standards Division’s statistics, with retaliation charges leading the list. With a total of 69 discrimination charges filed with the EEOC by Wyoming workers in FY2014, here are the numbers by type:

Type

No. of Charges

Percentage of Total Charges

Retaliation

30

43.5%

Sex

29

42%

Disability

25

36.2%

Age

20

29%

Race

14

20.3%

National Origin

  6

  8.7%

Color

  4

  5.8%

Equal Pay Act

  3

  4.3%

Religion

  2

  2.9%

Wyoming employers received significantly more sex discrimination charges in 2014 than compared to 2013. The percentage of sex discrimination charges filed with the EEOC went up from 29.2% in FY 2013 to 42% in FY2014. Retaliation charges topped the list in both FY2013 and FY2014. The full list of EEOC charge receipts for Wyoming for the last five years may be viewed on the EEOC’s website at  http://www1.eeoc.gov/eeoc/statistics/enforcement/charges_by_state.cfm#centercol

Lessons Learned 

The charge statistics from the Wyoming Labor Standards Office and the EEOC reflect discrimination complaints filed by applicants and employees, not cases in which discrimination was determined to exist. Even so, the charge numbers for Wyoming suggest a number of action items for employers who want to avoid being included in next year’s statistics. 

First, retaliation gets a lot less attention from employers than it should, as these numbers show.  Whenever an employee complains about something at work that implicates a statutory right, like the right to be free from discrimination or harassment, or requests an accommodation or FMLA leave, the employee has engaged in protected activity. Most discrimination laws prohibit adverse actions because an employee has engaged in protected activity. And, it makes little difference whether the employee’s underlying complaint or request was valid – the employee is still protected against retaliation. 

Employers need a strong, stand-alone anti-retaliation policy, not just a couple of sentences at the end of the policy prohibiting discrimination. Employers also need to train supervisors and managers about the significance of employee complaints, and how the law protects employees. And careful consideration should be given to any adverse employment action for an employee who has opposed discrimination in the workplace, been interviewed as part of an investigation, or participated in a discrimination proceeding. 

Second, the prevalence of sex discrimination charges, which includes harassment charges, suggests that employers should review and update their discrimination and harassment policies, and continue periodic harassment prevention training. A strong harassment prevention policy, with understandable definitions and examples and multiple reporting options, is usually the best defense against a charge of sexual harassment. Of course, any observed or reported harassment must be investigated and any behavior which violates your policies must be stopped. 

Finally, adopt a policy that guides employees who wish to request an accommodation, and train supervisors how to recognize employee requests that could be interpreted as a request for accommodation. Once a request is made, follow a thorough interactive process to explore reasonable accommodations that do not place an undue burden on your organization but will allow the person to perform their job. Only when you are absolutely sure that no reasonable accommodation is available should you terminate a disabled employee. 

These action items will go a long way toward keeping you from becoming a statistic!

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