whistleblower, retaliation & protected concerted activity · whistleblower claims whistleblower...

Whistleblower, Retaliation & Protected Concerted Activity

Presented by:Dean Pacific and Jonathan Kok

Why Should You Care?Why Should You Care?

5.5. Very popular claimsVery popular claims4.4. Judges are conservative on Summary Judges are conservative on Summary

JudgmentJudgment3.3. Humans are humanHumans are human2.2. Humans hate losing big moneyHumans hate losing big money1.1. Burlington NorthernBurlington Northern

Retaliation ClaimsRetaliation Claims

An Increasingly Common ClaimAn Increasingly Common ClaimAll major state and federal employment discrimination All major state and federal employment discrimination laws contain provisions that prohibit retaliation laws contain provisions that prohibit retaliation against any employee who engages in activity against any employee who engages in activity protected by the statute.protected by the statute.According to statistics from the federal Equal According to statistics from the federal Equal Employment Opportunity Commission, while the total Employment Opportunity Commission, while the total number of claims filed with that agency between number of claims filed with that agency between 1992 and 2003 increased by 12%, the number of 1992 and 2003 increased by 12%, the number of retaliation claims during that same time period was retaliation claims during that same time period was up by 104%.up by 104%.


Scope of the Retaliation ProvisionsScope of the Retaliation ProvisionsWho is protected under the statutory Who is protected under the statutory provisions barring retaliation?provisions barring retaliation?

Anyone who complains of harassment or Anyone who complains of harassment or discrimination.discrimination.


Any one who participates in the investigation or Any one who participates in the investigation or prosecution of someone else’s complaint. prosecution of someone else’s complaint. Anyone who “opposes” any violation of the Anyone who “opposes” any violation of the employment discrimination laws. employment discrimination laws.


The protection against retaliation applies even if the The protection against retaliation applies even if the claim of discrimination or harassment itself is ultimately claim of discrimination or harassment itself is ultimately found to be meritless. found to be meritless. Employers must be careful not to turn a bad Employers must be careful not to turn a bad discrimination or harassment case into a good retaliation discrimination or harassment case into a good retaliation claim.claim.


What does it mean to retaliate?What does it mean to retaliate?An employer may not take an adverse employment An employer may not take an adverse employment action against an employee because of a complaint of action against an employee because of a complaint of harassment or other protected activity. harassment or other protected activity.


A recent decision from the United States A recent decision from the United States Supreme Court interpreting Title VII of the Supreme Court interpreting Title VII of the Civil Rights Act of 1964 holds that Civil Rights Act of 1964 holds that employers are also more broadly employers are also more broadly prohibited from taking any action that prohibited from taking any action that might discourage a reasonable employee might discourage a reasonable employee from complaining of unlawful harassment from complaining of unlawful harassment or discrimination.or discrimination.


Burlington Northern & Santa Fe Railway Co. v Burlington Northern & Santa Fe Railway Co. v WhiteWhite, 126 S.Ct. 2405 (2006). Plaintiff, a , 126 S.Ct. 2405 (2006). Plaintiff, a laborer in the defendant’s railyard, complained laborer in the defendant’s railyard, complained of sexual harassment by her immediate of sexual harassment by her immediate supervisor. The company investigated, and supervisor. The company investigated, and after an internal investigation suspended the after an internal investigation suspended the supervisor for 10 days and ordered him to supervisor for 10 days and ordered him to attend a sexual harassment training session. attend a sexual harassment training session.


When plaintiff was informed of her supervisor’s When plaintiff was informed of her supervisor’s discipline, she was also informed that the discipline, she was also informed that the company was removing her from forklift duty, company was removing her from forklift duty, which had been her primary job duty. She was which had been her primary job duty. She was assigned to other duties such as cutting brush assigned to other duties such as cutting brush and cleaning litter and cargo spillage from the and cleaning litter and cargo spillage from the premises. Her pay and benefits were premises. Her pay and benefits were unchanged, and all of these duties were within unchanged, and all of these duties were within her job description.her job description.


Later, after a disagreement with another Later, after a disagreement with another supervisor, the plaintiff was suspended without supervisor, the plaintiff was suspended without pay for insubordination. An internal pay for insubordination. An internal investigation of that incident led defendant to investigation of that incident led defendant to conclude that she had not been insubordinate, conclude that she had not been insubordinate, and she was reinstated to her position and and she was reinstated to her position and awarded back pay for the entire time of her awarded back pay for the entire time of her suspension.suspension.


The Supreme Court concluded that both the change The Supreme Court concluded that both the change in her job duties and the temporary suspension were in her job duties and the temporary suspension were sufficient to support a claim of retaliation. Even sufficient to support a claim of retaliation. Even though all of the duties assigned to her were within though all of the duties assigned to her were within her job description, and even though she ultimately her job description, and even though she ultimately lost no pay or benefits as a result of the suspension, lost no pay or benefits as a result of the suspension, the Supreme Court concluded that either of these the Supreme Court concluded that either of these acts could intimidate a typical employee and acts could intimidate a typical employee and discourage them from making a harassment discourage them from making a harassment complaint. A jury verdict in favor of the plaintiff was complaint. A jury verdict in favor of the plaintiff was affirmed.affirmed.

Avoiding Retaliation ClaimsAvoiding Retaliation Claims

Policies against harassment and discrimination Policies against harassment and discrimination must make clear that no one may retaliate must make clear that no one may retaliate against an individual who makes a claim under against an individual who makes a claim under the policy.the policy.

Managers and supervisors must be properly Managers and supervisors must be properly trained in the handling of complaints, and in trained in the handling of complaints, and in particular, trained to avoid taking any action that particular, trained to avoid taking any action that could be deemed retaliatory.could be deemed retaliatory.

Avoiding Retaliation ClaimsAvoiding Retaliation Claims

Effectively evaluate employees on a regular basis, Effectively evaluate employees on a regular basis, and document performance problems. and document performance problems. Employees who complain of harassment are not Employees who complain of harassment are not immune to discharge or discipline if it is immune to discharge or discipline if it is warranted by their performance. But the file warranted by their performance. But the file should support the action taken, and ideally should support the action taken, and ideally documentation of performance problems should documentation of performance problems should not begin only after the employee has not begin only after the employee has complained.complained.

Whistleblower ClaimsWhistleblower Claims

Whistleblower Protection Act provides:Whistleblower Protection Act provides:Employer cannot discharge, threaten or otherwise Employer cannot discharge, threaten or otherwise discriminate against an employee because the discriminate against an employee because the employee, or a person acting on behalf of the employee, or a person acting on behalf of the employee reports, or is about to report verbally or in employee reports, or is about to report verbally or in writing a violation or suspected violation of a law, writing a violation or suspected violation of a law, regulation or rule to a public body regulation or rule to a public body unlessunless the employee the employee knows that the report is fakeknows that the report is fakeEmployee’s motive must be to inform the public on Employee’s motive must be to inform the public on matters of public concern, and not personal matters of public concern, and not personal vindictivenessvindictiveness

Protected Concerted ActivitiesProtected Concerted Activities

A Potential Trap for the Unwary A Potential Trap for the Unwary EmployerEmployer

What the Law SaysWhat the Law Says

The National Labor Relations Act protects the The National Labor Relations Act protects the organizational rights of all employees, both union organizational rights of all employees, both union and nonand non--union alike. It states: union alike. It states:

Employees shall have the right to selfEmployees shall have the right to self--organization, to organization, to form, join, or assist labor organizations, to bargain form, join, or assist labor organizations, to bargain collectively through representatives of their own collectively through representatives of their own choosing and to engage in other concerted activities choosing and to engage in other concerted activities for the purpose of collective bargaining or other for the purpose of collective bargaining or other mutual aid or protection . . . mutual aid or protection . . .

What the Law SaysWhat the Law Says

The law protects union employees.The law protects union employees.

The law also protects nonThe law also protects non--union employees union employees who engage in who engage in ConcertedConcerted activities for activities for mutual aid or mutual aid or protectionprotection. .

What is “Concerted” Activity?What is “Concerted” Activity?

Activity Must be “Concerted.”Activity Must be “Concerted.”Generally must involve two or more Generally must involve two or more employees working together. employees working together.

What is “Concerted” Activity?What is “Concerted” Activity?

A single employee can engage in concerted A single employee can engage in concerted activity, if such activity is engaged in on the activity, if such activity is engaged in on the direct authority of other employees. direct authority of other employees.

Employee must be expressly authorized to speak Employee must be expressly authorized to speak on other employee’s behalf. on other employee’s behalf.

Not just matters of common concern. Not just matters of common concern.

What is “Protected” Activity?What is “Protected” Activity?

Activity Must be “Protected.”Activity Must be “Protected.”

In order to be protected, the activity must be for the In order to be protected, the activity must be for the “mutual aid or protection” of employees. This “mutual aid or protection” of employees. This typically means that the activity must relate to wages, typically means that the activity must relate to wages, hours, or other terms and conditions of employment. hours, or other terms and conditions of employment.

Most employee complaints very clearly involve terms Most employee complaints very clearly involve terms and conditions of employment, such as vacations, and conditions of employment, such as vacations, working conditions, pay, discipline, etc. working conditions, pay, discipline, etc.


Some complaints are more attenuated: Some complaints are more attenuated:

Protests involving working conditions that the Protests involving working conditions that the employer has no right or power to effect. employer has no right or power to effect. (Government legislation or policies.) (Government legislation or policies.)

Protests involving management decisions on issues Protests involving management decisions on issues like personnel, advertising, public relations, etc. like personnel, advertising, public relations, etc.


Acts of insubordination or disloyalty are not Acts of insubordination or disloyalty are not protectedprotected

Falsely and/or publicly disparaging the employerFalsely and/or publicly disparaging the employer

Engaging in violence or other unlawful behaviorEngaging in violence or other unlawful behavior


To be a violation, the discipline must have been To be a violation, the discipline must have been taken because of the protected activitytaken because of the protected activity

Was there knowledge? Was there knowledge?

Was the protected activity the motivation?Was the protected activity the motivation?

Who is Protected by the Act?Who is Protected by the Act?

Temporary employees are protected. Temporary employees are protected.

Supervisors are not protected. Supervisors are not protected.

What Types of Communication What Types of Communication Could Trigger These Protections?Could Trigger These Protections?

MeetingsMeetings

PetitionsPetitions

LettersLetters

EmailsEmails

BlogsBlogs

MiscellaneousMiscellaneous

Employee Weingarten Rights.Employee Weingarten Rights.

NonNon--Union employees currently do not have Union employees currently do not have right to have a coright to have a co--worker present during worker present during investigatory interviews. investigatory interviews.

ScenariosScenarios

The HappyThe Happy--GoGo--Lucky Toy Company is having some Lucky Toy Company is having some trouble with its employees. Do you know which of trouble with its employees. Do you know which of these actions would be illegal?these actions would be illegal?

Protected Concerted Activity?Protected Concerted Activity?

At the monthly staff meeting, Company President, At the monthly staff meeting, Company President, Mr.Mr. Weed, announces a new vacation policy Weed, announces a new vacation policy requiring two weeks of notice in order to take requiring two weeks of notice in order to take vacation days. After the meeting, three hourly vacation days. After the meeting, three hourly employees write on the Company’s blog that the employees write on the Company’s blog that the Company is being petty and unfair with the Company is being petty and unfair with the employees. The employer suspends the employees. The employer suspends the employees for one day for disparaging the employees for one day for disparaging the Company. Company.


At the end of a workday, a temporary employee At the end of a workday, a temporary employee brings a petition signed by all of Happybrings a petition signed by all of Happy--GoGo--Lucky’s Lucky’s temporary employees stating that the Company temporary employees stating that the Company must either hire them on as direct employees or must either hire them on as direct employees or offer them some form of health insurance. The offer them some form of health insurance. The next day, the Company calls the temp agency and next day, the Company calls the temp agency and asks that the group of temporary employees no asks that the group of temporary employees no longer be assigned to the Company. longer be assigned to the Company.


During the workday, a group of employees walk During the workday, a group of employees walk off the job to protest unpleasant working off the job to protest unpleasant working conditions, including the extreme heat on the conditions, including the extreme heat on the production floor. When the employees report to production floor. When the employees report to work the next day, Happywork the next day, Happy--GoGo--Lucky discharges Lucky discharges them. them.


The next day, a group of Hispanic employees walk The next day, a group of Hispanic employees walk off the job to protest the government’s policies on off the job to protest the government’s policies on immigration. Again, the Company discharges the immigration. Again, the Company discharges the employees the next day. employees the next day.


HappyHappy--GoGo--Lucky discharges Dean Pacific, a Lucky discharges Dean Pacific, a popular supervisor with attendance and attitude popular supervisor with attendance and attitude problems. The next day, all of Mr.problems. The next day, all of Mr. Pacific’s Pacific’s subordinates come to work wearing a pin stating subordinates come to work wearing a pin stating “Bring Back Dean.” Happy“Bring Back Dean.” Happy--GoGo--Lucky tells the Lucky tells the employees that they have to remove the pins. employees that they have to remove the pins.


During the workday, an employee comes up to a During the workday, an employee comes up to a supervisor and says that he doesn’t like the new supervisor and says that he doesn’t like the new safety harness and is going back to the old safety harness and is going back to the old harness. He states that a number of other harness. He states that a number of other employees feel the same way. The next day, employees feel the same way. The next day, when the employee wears the old harness, he is when the employee wears the old harness, he is disciplined for a safety violation and not following disciplined for a safety violation and not following orders. orders.


During a management meeting, a group of During a management meeting, a group of supervisors pleasantly express their disagreement supervisors pleasantly express their disagreement with proposed changes in the Company’s health with proposed changes in the Company’s health insurance policy. After the meeting, Happyinsurance policy. After the meeting, Happy--GoGo--Lucky immediately terminates all of the Lucky immediately terminates all of the supervisors and beats them rather severely. supervisors and beats them rather severely.

ConclusionConclusion

Union employers need to be and usually are aware of Union employers need to be and usually are aware of the protection the Act affords for employees engaging the protection the Act affords for employees engaging in protected concerted activity. Nonin protected concerted activity. Non--union employers union employers are rarely aware of the fact that these protections are rarely aware of the fact that these protections impact them as well. Employers need to be cognizant impact them as well. Employers need to be cognizant of the Act when employees, either individually or in of the Act when employees, either individually or in groups, approach the employer to complain about or groups, approach the employer to complain about or discuss their terms and conditions of employment. discuss their terms and conditions of employment. There is no obligation to accede to employee demands, There is no obligation to accede to employee demands, but there is a requirement that employers not take but there is a requirement that employers not take disciplinary action because of these demands. disciplinary action because of these demands.

whistleblower, retaliation & protected concerted activity · whistleblower claims whistleblower...

Documents