By: Jonathan K. Driggs, Attorney at Law
We’ve discussed retaliation before in this newsletter (three years ago this month… I’m sure you all saved a copy in your “NEVER EVER THROW THIS AWAY” file you keep in your fireproof safe). Retaliation claims are “snake in the grass” claims—they are the ones that most often surprise my clients. I could rehash all the legal mumbo-jumbo about what retaliation consists of (but that would prevent you from finding out if you still know the code to your fireproof safe to look at your copy of the August 2011 article you so purposefully saved), or I can cut to the chase:
- Whether we employers like it or not, there’s a lot of stuff employees have the legal right to do for which we cannot, and must not, retaliate. Such things include (but are not limited to): making internal or external complaints that specific legal rights are being violated (e.g., complaints of protected class discrimination, safety violations, wage and hour violations, etc.), acting as a witness for someone making such complaints, exercising a right (e.g., taking FMLA leave) or even issuing a call to action to coworkers over social media websites regarding poor working conditions. By the way, the fancy-shmancy legal term for this is called engaging in a “protected activity”… as in “the employee engaged in a protected activity when she called OSHA and made a complaint.”
- If an employee alleges multiple claims, I often find that the retaliation claim may be the most potent one in the mix. For example, if an employee claims sex discrimination and retaliation, it is not unusual to find the discrimination claim to be weaker, while the retaliation claim is stronger. Why?
- Unlike many discrimination claims, which often involve a complicated analysis regarding motives (as in was a manager motivated by discriminatory reasons?), retaliation claims are often established by examining simple timelines and then looking at related documentation. For example, the employee made a complaint of harassment on Tuesday and was fired on Thursday—unless there is solid documentation of a non-retaliatory reason for the firing, there will be a strong presumption that retaliation had to be the reason based simply upon the timeline involved… what else could it be?
- Let’s be honest, we humans are retaliatory creatures. It’s in our DNA! We get ticked off when people do things we don’t like (including things that may damage our professional reputations) and we want to strike back—and we can feel very justified when doing so. I am aware of situations involving relatively sophisticated employers who wanted to fire employees for “disloyalty” because they filed a complaint with a government agency. Talk about stepping into a trap! Ouch!
- Employees have the right to file complaints even if they are wrong in their accusations. This is a perfect storm! Why? Because the employees are wrong in their accusations, now we’re even more ticked at them! We’ve truly been disparaged! I’ve seen some sad situations over the years when managers who we’re falsely accused of discrimination, struck back in anger at the employee and then went on to commit retaliation. Winning the discrimination claim but losing the retaliation claim is no victory at all.
I always tell my clients that the best way to avoid retaliation claims is to recognize when employees engage in protected activities (see examples above), and then carefully review any potential “adverse actions” (e.g., terminations, demotions) that may occur shortly thereafter. It doesn’t mean rolling over and allowing employees to do whatever they want to do, but the prudent thing is to recognize when employees are in a “potential retaliation zone” and be sensitive to appearances. Don’t step into the trap!
This article should not be construed as legal advice. Copyright ©2014 by Jonathan K. Driggs, Attorney at Law, P.C. All rights reserved. Jonathan K. Driggs is an employment law attorney with over 20 years of experience, including 3 years with the Utah Labor Commission. www.jkdlawpc.com