Manager Feels Driven to Extremes

Andrea Gogel worked for Kia Motors Manufacturing Georgia, Inc., a subsidiary of Kia Motors in Korea. Gogel managed all Human Resources functions relating to current employees while her counterpart, Robert Tyler, was in charge of all recruitment, hiring and other pre-employment matters.

At one point, Tyler was awarded a promotion to Head of Department (HOD) overseeing the entire Human Resources function.  Gogel was disappointed in this decision, believing that she should have received the position instead.  She complained about the choice and about “antiquated views” of working women on the part of the Korean corporate executives.

After his promotion, Tyler was asked to investigate and report on increasing complaints by American managers that they were not given sufficient decision-making authority. After Tyler submitted the report, which included significant contributions from Gogel, Senior Vice President Randy Jackson asked to meet with Gogol to discuss her view further. Gogel expressed concern about speaking with Jackson and asked instead to meet with an independent investigator.  The parties greatly dispute the chain of ensuing events but it appears that there was little or no follow-up to Tyler’s report.

Co-worker is Steered in the Wrong Direction

Subsequently, Gogel filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging sex and national origin discrimination regarding Tyler’s promotion to HOD.  Interestingly, Tyler also filed a discrimination charge alleging national origin discrimination and retaliation (the decision did not identify the factual allegations underlying Tyler’s charge).

Given the sensitive nature of their jobs and their unique access to other employees and company records, the company asked Gogel and Tyler to sign agreements promising not to exploit or misuse their positions.  Gogel specifically agreed not to “solicit or influence” employees to bring claims against the company or to make any statements that disparaged Kia.

Thereafter, the company learned that a third employee, Diana Ledbetter, had filed a discrimination charge alleging race, sex and national origin discrimination, and that she was being represented by the same attorney representing Gogel and Tyler.  They further learned from co-workers that Gogel and Tyler had been having lengthy meetings with Ledbetter, and that Ledbetter herself had told others that she, Gogel and Tyler would be suing the company.

Following investigation, the company concluded that Gogel had helped solicit Ledbetter to file her charge.  They therefore terminated her for failing to notify them of Ledbetter’s concerns, failing to direct Ledbetter toward internal complaint resolution mechanisms, breaching her agreement with the company and generally acting in a manner that caused loss of confidence in her loyalty to the company.

Court Sets Up Roadblock

Gogel sued in Federal court claiming that her termination violated Title VII’s “opposition clause”, which protects employees from retaliation for opposing discriminatory practices. However, the Eleventh Circuit Court of Appeals affirmed the dismissal of her case on the grounds that oppositional conduct is not protected if the employee’s method of “so interferes with the performance of her job that it renders her ineffective in the position for which she is employed.”

The Court explained that Gogel had frequently opposed various company practices in pursuit of her Human Resources responsibilities and had never been treated adversely. In this instance, however, she elected to act in conflict with core objectives of her position – promoting internal resolution of conflict and protecting the company from litigation – by recruiting an employee to sue the company. As a result of this decision, the company could no longer trust her to do her job.

The Court ruled therefore that opposition to discriminatory practices is only protected when the opposition is expressed in a reasonable way.

Bottom Line

It is not unusual for employees to tell HR that they are considering suing the employer.  It is unusual, however, for HR to encourage this, find them a lawyer and cheer them on.  Doing so turned out not to be a road map to success for this particular practitioner.

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After 16 years with a clean work record at the Guilford County Sherriff’s office in North Carolina, Catherine Netter received a disciplinary action that prevented her from testing for a promotion.  Netter filed both an internal complaint with the County and an Equal Employment Opportunity Commission (EEOC) charge claiming that she had been discriminated against because of her race (African American) and religion (Muslim).

Caught in the Act

During the County’s investigation of the complaint, and without permission, Netter accessed and copied the personnel files of five co-workers whom she thought had been treated more favorably than her.  She then submitted those files to her employer and to the EEOC.

After the EEOC dismissed her charge, Netter filed a federal court lawsuit against the Sherriff’s office and against the Sherriff personally.  In the course of pre-trial discovery, Netter turned over the copied personnel files, prompting the Sherriff’s attorney to inquire about how she obtained those items.  After Netter confessed that she had accessed the files on her own, the Sherriff’s office terminated her employment, leading Netter to file an additional claim of retaliation.

The trial judge dismissed the claim in its entirety and Netter appealed to the Fourth Circuit Court of Appeals, challenging only the dismissal of her retaliation claim.  She argued that obtaining the files in support of her discrimination claim was protected under the retaliation provision of Title VII, which prohibits adverse action based on an employee’s “participat[ion] in any manner in an investigation, proceeding, or hearing under this subchapter.”

Actions Have Consequences

The Appeals Court acknowledged that the phrase “in any manner” made it incumbent upon them to afford a broad umbrella of protection even when an employee’s actions seem plainly “unreasonable” or “irrelevant.” They further observed that in light of the difficulties that employees have in collecting evidence to support their claims, wide latitude to obtain and present helpful evidence should be afforded to employees.

Nevertheless, the Court explained that such protection cannot and should not be extended so far as to include illegal activities.  Though it may be difficult for employees to obtain evidence on their own, they have the ability to do so through the investigative process under Title VII or the pre-trial discovery procedures in state or federal court. Resorting to illegal methods to obtain evidence, however, crosses the line.

The Court then concluded that Netter had in fact crossed that line by violating a North Carolina statute that gives rise to a misdemeanor for “knowingly and willfully examin[ing] . . . , remov[ing,] or copy[ing] any portion of a confidential personnel file” without authorized access.  As a result, they dismissed Netter’s retaliation claim because her “unauthorized review and duplication of confidential personnel files did not constitute protected …participation activity.”

Bottom Line

This is a very helpful decision that draws a clear and necessary line employers.  Employees typically are protected when they seek evidence of differential treatment, e.g. asking co-workers whether they ever received disciplinary actions similar to what they just received.

However, when the employee violates the law to obtain that information and suffers consequences as a result, there is a good chance based on this decision that those consequences will not be considered unlawfully retaliatory.  We look forward to the Eighth Circuit Court of Appeals (which covers Minnesota) adopting this same analysis when they next have occasion to address a claim of this type..

The post Appeals Court Says Termination for Illegal Act Is Not Retaliation appeared first on Felhaber Larson.

Dahlke Trailer Sales had employed Anibal Sanchez as a shop body assistant for nearly eight years when Sanchez sustained a work-related injury in September 2013. During a subsequent deposition relating to his claim for workers’ compensation benefits, Sanchez admitted that he was not legally authorized to work in the United States, which he also confirmed to Dahlke management shortly thereafter.

In response, Dahlke gave Sanchez a letter confirming that the company was placing him on an unpaid leave of absence but that he could return to work as soon as he provided “legitimate paperwork showing that [he could] legally work in the United States.”

Torn Between Two Statutes

Sanchez then sued Dahlke, alleging the company violated the Minnesota’s workers’ compensation anti-retaliation statute, which prohibits employers from discharging, threatening discharge, or intentionally obstructing benefits in retaliation for an employee’s pursuit of a workers’ compensation claim.

During the lawsuit, Sanchez testified that his employer knew that he was an undocumented worker long before he sought workers’ compensation benefits so why did they all of a sudden place him on leave?  The company disputed any prior knowledge and argued that by placing Sanchez on leave, they were simply complying with federal law prohibiting employers from knowingly employing undocumented workers. The company also pointed out that Sanchez testified he understood he could return to work as soon as he was legally authorized to work in the United States and therefore, he had not been permanently discharged. Agreeing with the company’s evidence and arguments, the trial court dismissed the case.

On appeal, the Minnesota Court of Appeals reversed the trial court’s decision, sending the case back to the trial court for a jury to determine whether Dahlke’s real motive for placing Sanchez on leave was because of his pursuit of workers’ compensation benefits.

This time, it was the company’s turn to appeal, arguing before the Minnesota Supreme Court that Sanchez’s claims failed as a matter of law for two reasons. First, federal immigration law required the company to take the actions it did, thereby conflicting with and preempting the state anti-retaliation law. Second, because Sanchez was not permanently discharged but rather, placed on an indefinite leave of absence from which he could return when he was authorized to work, he did not suffer an adverse employment action protected under the state law. In short, federal required that they suspend him but that’s all they did.

Not Violating Federal Law Violated State Law

In a closely divided decision, the Minnesota Supreme Court sided with Sanchez, reasoning that a jury should decide whether Dahlke acted with actual intent to permanently end his employment when placing him on leave.  The court determined that federal immigration law did not preempt the state anti-retaliation statute because it is possible under normal circumstances for an employer to comply with both laws at once. In other words, the employer could properly determine to suspend an employee who was not legally authorized to work; they simply cannot do it as a form of retaliation.  The case was therefore remanded for trial consistent with this ruling.

Three justices of the seven justices signed a strongly worded dissent noting that the company had a clear duty to cease actively employing Sanchez upon learning “without any room for doubt” that he was not authorized to work in the United States, or risk incurring civil fines and criminal penalties under federal immigration law. Thus, federal law does preempt the state anti-retaliation law in this case, and such preemption should have served as a basis for Sanchez’s lawsuit to be dismissed.

The dissent also concluded that Sanchez’s leave of absence was not tantamount to a permanent discharge since he “was permitted to return to work with Dahlke when he met the most basic of conditions: legal eligibility to work.”

Bottom Line

It seems that this decision was all about motive. If in fact the company knew that Sanchez was not legally able to work in the US (as Sanchez asserted) but waited to take action until he filed for workers compensation benefits, a judge or jury could perhaps find that the action was based on the filing of the claim, not on Sanchez’s immigration  status.  Therefore, by placing him on indefinite leave only after he filed for workers comp benefits they might in fact be interfering with his receipt of those benefits.

Accordingly, Minnesota employers should be mindful not to turn a “blind eye” to an employee’s legal work status until circumstances make it impossible for the employer to ignore such facts any longer.

The post Court Sanctions Minnesota Employer For NOT Violating Federal Immigration Law appeared first on Felhaber Larson.

José Arnulfo Arias, an undocumented worker, was hired by Angelo Dairy in 1995 without being asked to submit documents for the I-9 form. Thereafter, the company used Arias’ undocumented status to intimidate him against leaving to work elsewhere.

In 2006, Arias sued the company in California state court for a variety of state and federal wage claims, including claims that the company failed to pay him mandated overtime under the Fair Labor Standards Act. The case was set for trial in August, 2011.

Litigation Strategy Courtesy of Doctor Evil?

A few months before the trial was to begin, the company’s attorney Anthony Raimondo decided that the surest way to win the case was to get U.S. Immigration and Customs Enforcement (“ICE”) to arrest Arias because of his undocumented status and deport him. He then contacted ICE, provided all the information that they needed to verify his status and facilitated their plan to apprehend him by advising them of the date and location of Arias’ deposition.

Interestingly, this was not the first time that Raimondo had used this trial “strategy.” In fact, he declared in documents filed with the court that he regularly investigates the immigration status of people suing his clients and had advised and assisted the authorities on at least five prior occasions in just the same way as he did here.

Arias got wind of the scheme and decided to settle his claims with the company out of fear that he might actually be deported and separated from his family.  Thus, it would seem that Raimondo’s scheme to protect his client from a lawsuit actually paid off.

Lawsuit Number 2

Or perhaps not, because in 2013, Arias filed a new complaint in federal court claiming that the company, as well as Raimondo as the company’s agent, retaliated against him in violation of the FLSA by threatening to have him deported after he filed the original lawsuit against the company.  The company settled their part of the lawsuit early on but Raimondo decided to fight the case on the grounds that he could not be sued under the FLSA because he was not Arias’ employer.

The lower court agreed with Raimondo and dismissed the lawsuit.  Arias appealed to the Ninth Circuit Court of Appeals, who reversed and remanded the matter for trial.  In doing so, they focused on the following critical provisions of the FLSA:

–  It is unlawful for “any person . . . to discharge or in any other manner discriminate against any employee because such employee has filed any complaint . . . under or related to this chapter.”

–  The term “person” includes “legal representative”; and

–  The law authorizes a lawsuit against any “employer” and defines “employer” to include “any person acting directly or indirectly in the interest of an employer in relation to an employee.”

Court Says Lawyer Behaved Badly

The court then observed that there are two types of claims under the FLSA and that they are “as different as chalk is from cheese.”  The first type of claim seeks relief from actual workplace practices that ultimately are deemed unlawful.  These necessarily apply only to the employer who has actual control over the workplace practices being challenged.  As such, only an employer may be held liable for these practices and Raimondo’s defense therefore would be legitimate in the face of such a claim.

However, the second type of claim seeks to preserve the ability of employees to pursue their legal rights through the legal system.  In those instances, the Ninth Circuit concluded that by using the term “person” in the retaliation language, Congress obviously intended to apply these restrictions to more than just employers.  In fact, they observed that Raimondo’s behavior in this matter demonstrated the wisdom of Congress’s decision to do so.  As such, they ruled that Arias could proceed with his claim that by threatening deportation, Raimondo was a “person” who retaliated against Arias for filing the original lawsuit against the company.

As a final matter, the court noted that should Arias prevail, Raimondo would not be liable for the unpaid overtime and other monetary claims that Arias had under the FLSA because those would only be an employer’s responsibility.  However, Raimondo could be held liable for a monetary penalty if he is found to have retaliated unlawfully, and a penalty in an amount equal to those wages and other monetary losses could be ordered.

Bottom Line

This was an unusual decision but it presumably resulted from unusual circumstances.  It is difficult to imagine courts allowing lawyers to be sued simply for representing their clients no matter how aggressive that representation might be. However, where the lawyer crosses ethical line and goes to outrageous extremes, as was the case in this instance, perhaps an extreme result is to be expected.

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Robert Chase, a U.S. Postal Service (USPS) mail carrier, filed for workers compensation benefits and a Family and Medical Leave Act (FMLA) leave after a work-related shoulder injury. Chase’s supervisor, Michael King, claimed he never received notice of Chase’s FMLA leave and believed only that he was “out on workers’ comp.”

Supervisor Delivers Insults and Termination

For whatever reason, King had a long history of tormenting Chase (and apparently others) for allegedly faking injuries. He would announce over the facility’s loudspeaker that he wanted “Bob Chase, the injury fraud specialist” to report to his office or would broadcast for “the carrier on Route 92 [Chase] who is faking an injury” to come see him.  At one point, King posted a notice of a job opening for an Injury Compensation Specialist and remarked that Chase would be perfect for the job since he was the “biggest fraud when it comes to injuries.”

Two months after the injury, Chase and his brother were arrested on drug charges. King brought this to his manager’s attention and suggested that “[i]t would be nice if we can proceed with something.”  King’s manager eventually approved Chase’s termination, at which time King sent him a Notice of Removal for “Failure to Perform Duties in a Satisfactory Manner.”

Chase grieved the discharge through his labor union, who took the case to arbitration. While the arbitration was pending, Chase’s criminal charges were dropped except for a single charge of simple drug possession that could be dismissed in one year if Chase satisfied the terms of his probation and passed a series of random drug tests.  Even so, this was enough for the arbitrator to sustain the termination on the grounds that Chase had possessed a Class B illegal drug, which violated USPS policy.

Letter of the Law Favors Employer

Chase sued in federal court claiming, among other things, that his termination interfered with his FMLA rights and was retaliatory for his exercise of those rights.  The judge quickly marked “Return to Sender” on all of Chase’s claims except for FMLA retaliation, which he allowed to proceed to trial.  Eventually, Chase was left holding the bag on this claim as well when the judge ruled that King and the USPS could not have retaliated against Chase for taking FMLA leave since King never knew that Chase had actually invoked FMLA rights.

Chase appealed the ruling to the First Circuit Court of Appeals, arguing that King knew that Chase was injured and that he was off work for medical reasons so he should have known that his absence from work was covered by FMLA.  The Appeals Court had some sympathy for Chase’s position, noting that under Department of Labor (DOL) Regulations, “the employee need not expressly assert rights under the FMLA or even mention the FMLA” in order to place the employer on notice that FMLA’s protections are being sought.  Instead,  the employer should inquire further, and obtain additional details if need be, to determine whether FMLA leave is being sought.

However, the court explained that this was not a situation where the employer failed to make the necessary inquiry, was “oblivious” to the employee’s rights or simply did not know the law.  Instead, they found that King had a “reasonable and well-founded belief” that Chase affirmatively had elected not to invoke FMLA.  Therefore he simply could not have formed the required intent to retaliate based on the exercise of protected rights.  They based this conclusion on the following evidence:

–  King’s knowledge of Chase’s employment status came only from looking at a USPS computer program that listed Chase as either “injured on duty” or “out on workers’ compensation.” There was no reference to FMLA at all.

–  King testified the he never received the FMLA notice that was allegedly mailed to both Chase and King.

–  Most importantly, King credibly testified that he thought employees could delay using unpaid FMLA leave until after their paid workers compensation had expired.  Since Chase was listed as being on workers compensation leave only, King concluded that he must have declined FMLA coverage as of the time of the termination.

In short, the issue was not that King was unaware that Chase was on FMLA; he actively and palpably concluded that he was not. As such, he could not have decided to retaliate against Chase on that basis.

Even King’s fondness for broadcasting insulting remarks about Chase supported the determination that he was not biased against Chase because of the FMLA leave.  King’s insults were directed at Chase’s status as a worker on limited duty, which relates to Chase’s workers compensation claims, not to his desire for time off from work under FMLA.

As a result, the Court of Appeals concluded that King could not have retaliated against Chase for taking FMLA because he affirmatively believed that Chase had not invoked those rights.

Final Argument is Just Junk Mail

Chase took one more shot, claiming that even if King did not know of his FMLA status, the USPS as an entity knew he was on FMLA leave and this “corporate knowledge” was sufficient to meet the standard for proving intent to retaliate.  The court stopped delivery on this argument, however, by observing that the vast majority of courts around the country require that the actual decision-maker must have knowledge of the protected rights tin order to be held liable for intentional retaliation.

Bottom Line

This is a very curious case.  For one thing, a claim of retaliation for seeking workers compensation benefits would ordinarily be brought under these circumstances.  However, since Chase worked for the USPS, he was not covered under the workers compensation laws of Massachusetts (where the case arose) but rather, under the Federal Employees’ Compensation Act, which does not appear to permit a private lawsuit for retaliation.

In Minnesota, this would be the first cause of action we would anticipate in this fact setting.  Minnesota Statutes Section 176.82 specifically states:

Any person discharging or threatening to discharge an employee for seeking workers’ compensation benefits or in any manner intentionally obstructing an employee seeking workers’ compensation benefits is liable in a civil action for damages incurred by the employee…” 

It is also curious that a supervisor could behave so badly toward his employees and get away with it.  Admittedly, it is difficult to terminate a federal employee but seriously, how could King be allowed to keep haranguing his employees as he did?

The most curious aspect of the case is the notion that the supervisor’s extreme misunderstanding of the employee’s status could insulate the employer from a retaliation claim.  As noted above, employers ordinarily cannot escape liability merely by asserting that the employee never specifically mentioned FMLA or that they were not sure that FMLA applied.  A duty of further inquiry arises when the employer has sufficient information to believe that FMLA might be in the picture.

However, where the employer can demonstrate a compelling case for believing that the employee had affirmatively declined FMLA protections, they might be able to convince a judge or jury that they could not have formed the legally mandated intent to retaliate on that basis.  This will be the rare case, and the decision should not be viewed as a turning point in FMLA retaliation litigation but rather, a curiosity to keep our eye on.

The post Is FMLA Retaliation Legal If You Don’t Know You Are Retaliating? appeared first on Felhaber Larson.

We wrote in February when the Guidance was proposed that the EEOC was threatening to expand employee protections.  That threat is now a reality through a more liberal interpretation of protected behavior and a diminished requirement for good faith in bringing complaints.

Two Forms of Protected Activity

The Guidance identifies two types of protected behavior.  The first is “participation”, which encompasses an individual’s role in the processing of a complaint that the employer has violated one or more of the federal discrimination laws.  Participation includes not only the person filing the complaint but also anyone who serves as a witness (voluntarily or otherwise) or who assists or is involved in the matter in any way.

Under the EEOC’s interpretation, participation is protected regardless of the claim’s validity or the credibility of a witness’s testimony or input.   Therefore, the Guidance sharply warns employers not to pre-judge the merits of an allegation or the credibility of a participant, noting that “an employer can be liable for retaliation if it takes it upon itself to impose consequences for actions taken in the course of participation.”

The Guidance also explains that “participation” protection is no longer limited to just formal administrative charges or lawsuits.  Instead, it also covers internal or contractual complaint processing, matters that previously were only encompassed within “opposition” protection (the second type of protected activity, as discussed below).  This is not just semantics – it reflects the EEOC’s intention to relieve employees from having to show good faith when invoking the employer’s policies on harassment or discrimination.   This offers a clear path to the serial complainants, the conspiracy theorists and those with ultra-delicate dispositions to file complaint after complaint with the employer without fear of negative consequences.

The EEOC’s position in this regard differs from several courts, and the U.S. Supreme Court has not yet ruled on the issue.  Therefore, employers faced with aggressive EEOC enforcement efforts in participation cases can take heart that a court might very well reject the EEOC’s conclusions.  Of course, this will happen only after a long, frustrating and costly investigation by an EEOC intent upon imposing their interpretation throughout the judiciary.

Opposition Protection

The second form of behavior that is protected from retaliation is “opposition” to a practice forbidden by applicable discrimination laws.  This opposition can be communicated formally or informally, and need not even mention words like “harassment”, “discrimination” or “illegal”  as long as the employee expresses a concern that can reasonably be interpreted as opposition to EEO violations.

Here, the Guidance imposes a reasonableness requirement but the standard is relatively modest.  In this regard, the Guidance requires that the method of opposing the discriminatory practice must be reasonable but then provides an expansive list of what meets this test.  The list includes complaints about perceived discrimination to union officials, coworkers, or attorneys.  It also encompasses public protests, picketing and even critical letters written to customers as long as the communications are not disruptive or excessive.

The Guidance also requires that the opposition must be based on a reasonable good faith belief that the employer practice being opposed violates, or could violate, the discrimination laws. Even if the challenged action is ultimately proven to be lawful, the protection still will apply as long as the good faith requirement is met.  The practice being opposed need not be an actual violation; it could be just a single harassing incident that is insufficient to constitute harassment by itself but is, or could be, a bona fide component of an illegal pattern of hostile behavior.

Promising Practices

Recognizing that there is not a single “best” practice applicable to every employer and every complaint, the EEOC offered the following list of “promising practices” to assist employers in avoiding retaliation liability:

1. Maintaining a written anti-retaliation policy;
2. Training all managers, supervisors, and employees on the employer’s written anti-retaliation policy;
3. Providing anti-retaliation advice and individualized support for employees, managers, and supervisors;
4. Proactive follow-up while EEO mattes are pending to insure that retaliation is not occurring; and
5. Review of all employment actions (e.g. terminations, discipline, salary decisions) to insure that retaliation played no role.

Bottom Line

As noted above, employers will sleep better at night if they remember that an “EEOC Guidance” does not represent the law in any regard.  The true arbiters of what the law actually means are the courts, and the EEOC readily acknowledges in the Guidance that agency’s more aggressive views are not yet embraced by the judiciary.

On the other hand, even if the courts ultimately find that the EEOC is overreaching, an employer charged with retaliation is still going to have to undergo an intensive investigation and a possible cause finding as the EEOC puts its interpretation into play.  This could mean an expensive and time-consuming process, first through the administrative forum and then in court, that diverts valuable time and resources from more productive endeavors.

Regardless of whether and to what extent the Guidance ultimately is accepted, employers are well-advised to protect against retaliation claims through careful and appropriate responses to complaints about discrimination and harassment, and by insuring that employment actions are based on legitimate and non-discriminatory factors, especially including those actions affecting employees who have engaged in protected activities.

Now that employees can bring discrimination claims without having to show much good faith, we can expect more claims any day now.  Let’s be prepared.

Critical developments such as this will be the focus of the Felhaber Labor & Employment Seminar on October 28, 2016.  You can view the seminar agenda and .access our online registration by clicking here.

The post EEOC’s Guidance on Retaliation is Final – Prepare the Floodgates appeared first on Felhaber Larson.

The vote of confidence in sports is one of those statements often understood to mean exactly the opposite, just like “the check is in the mail” and “I already finished my homework.”  When the declaration is issued, there is a good chance the coach knows that it is time to start packing.  Former Minnesota Wild hockey coach Mike Yeo recently found this out when the team fired him after issuing their kiss of death, – oops, vote of confidence – just eight days earlier.

Lessons for the Non-Sporting World

Perhaps the vote of confidence is intended as reassurance to the coach, a message to the players about their performance or simply a strategy to avoid paying out the remainder of a departed coach’s contract.  As the team keeps losing, however, and the fans and media start getting angry,  the analytics become pretty simple.  They can’t fire an entire team of professional athletes under contract so they fire the coach in the hope that this might shake things up.  If it work, great; if not, there’s always next year.

In the non-sporting arena, this approach is usually the wrong call.  The business version of a vote of confidence, such as a positive performance evaluation, a letter of commendation or a significant pay increase, is typically understood to reflect management’s satisfaction with the employee’s body of work for the period that the evaluation or increase covers.  The employee therefore has reason not to be concerned about imminent termination unless, of course, there has been a very critical lapse in performance or behavior since then, such as the loss of a major customer, a serious policy infraction or some other equally significant occurrence.

A Pat on the Back Shouldn’t Hurt

In the absence of such a critical failure, an employee who is terminated or suffers some other adverse action shortly after getting a “vote of confidence” has good cause to believe that there must be a reason other than job performance for the sudden shift in management’s demeanor.  This is when that employee begins to wonder whether there might actually be an illegal motivation for all of this, such as race, gender, or some other protected classification.  After all, how could the termination be work-related if the employee just got a strong pat on the back a short time ago?

This concern increases if the employee has engaged in some sort of protected activity between the time they received their vote of confidence and the adverse employment action.  An employee who is praised for their job performance and then receives a demotion or disciplinary action has good cause to be suspicious if that action follows quickly after, for example, an OSHA report, an illegal harassment claim or a FMLA request.

In fact, as we reported recently in “EEOC’s New Retaliation Guide is Threat to Employers,” an impending relaxation of the standard for proving retaliation cases makes it even more worrisome for employers to take adverse action against an employee who has engaged in protected activity.  The fact that an employee received some sort of vote of confidence will be a significant part of the “convincing mosaic of circumstantial evidence” (the EEOC’s proposed standard of proof) needed to persuade an enforcement agency, a judge or jury that the adverse employment action is retaliatory.

Certainly there may be times when the employer intends to use a commendation or a raise as an incentive to a weak performer or as an expression of confidence that the employee is still valued despite recent setbacks.  In such cases, however, that intent should be expressed clearly and documented effectively to insure that there are no misunderstandings. Otherwise, it is best to find a more effective and less dangerous form of motivation.

Bottom Line

In the sports world, it’s all about the wins and losses.  If the team continues to lose, everybody understands that the coach may get fired regardless of what team officials might have said previously.

It is different for the rest of us.  If you seek to motivate your employees through troubled times or disappointing performance, do so in a way that makes it clear that you believe that improvement is needed.  A steady course of timely discussion and thorough documentation works well for this.  On the other hand, giving an employee a strong vote of confidence and then kicking that person off the team a short time later may put you in the human resources version of the penalty box.

The post Vote of Confidence: OK for Sports, Not for Business appeared first on Felhaber Larson.

This new Guidance offers the EEOC’s views on what constitutes illegal retaliation, and much of it is nothing new.  However, they do introduce a seismic shift in the standard for proving illegal retaliation.  What was once a precise, focused analysis of causation is now a hodgepodge of subjective factors making it more difficult for employers to prevent retaliation claims while allowing employees to press forward with scattershot allegations.

A retaliation claim requires proof that (1) the employee engaged in a protected activity, such as reporting harassment or objecting to perceived discrimination; (2) the employee suffered an adverse employment action; and (3) a “causal connection” between the two.

Comparing the Old and New Standards

Currently, proof of a causal connection is a “but for” test – the employee must show that but for the protected activity, the adverse employment action would never have occurred.  This often depends showing that employer knew about the protected behavior and that the adverse action followed very swiftly thereafter.

Under the new EEOC Guidance, the employee need only present a “convincing mosaic of circumstantial evidence that would support the inference of [retaliation].” This “mosaic” can include not only the more obvious types of employer actions (e.g. termination, demotion or disciplinary action) but also behaviors such as:

• “Badmouthing” the employee;
• Threatening to reassign the employee;
• Micromanaging the employee’s work;
• Removing job responsibilities;
• Abusive physical or verbal behavior; or
• Any other behavior that might deter a reasonable person.

In fact, the EEOC now seems unconcerned with whether the employee in question actually felt threatened or deterred from pursuing further protected activities.  Instead, it will be enough that a reasonable person (whoever that might be) would have been affected by the employer’s behavior.  The agency also seems intent on forging a path away from a recent United States Supreme Court decision announcing continuing support for the “but for” test for causation.

This new “mosaic” standard seems likely to encourage employees to forage through fragments of supervisory comments and behavior to concoct artful retaliation claims where no real evidence of  illegal motive actually exists.

EEOC Suggests Best Practices

The EEOC did offer up a list of “best practices” for employers to follow if they wish to prevent retaliation cases from cropping up.  They include:

1. Establishing and maintaining a “written, plain-language anti-retaliation policy” examples of retaliatory behavior, proactive steps to avoid illegal behavior and a reporting mechanism for complaints;
2. Training for the entire workforce on the anti-retaliation policies with emphasis on issues specific to that particular workplace;
3. Providing anti-retaliation advice and individualized support for managers and employees alike;
4. Proactive follow-up; and
5. Review of all consequential employment actions to insure EEO compliance.

The period for public comment ends on February 24, 2016, and a final version of the Guidance can be expected later this year.

Bottom Line

This new Guidance is still just a proposal, and even if adopted it represents merely EEOC’s view of what it takes to prove illegal retaliation.  However, since EEOC will be the agency investigating and enforcing these claims, employers are faced with the prospect of more claims and more unfavorable EEOC determinations.

The EEOC’s suggestions of best practices may be a good resource for employers to begin shoring up a proactive approach to heading off retaliation claims.  Start with a good policy, frequent reminders to supervisors to avoid comments and actions that might appear to be threatening, and consistent review of personnel moves to insure that retaliatory motives have not crept into the decision-making process.

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Alla Rosenfield worked for GlobalTranz Enterprises, a provider of transportation management services, first as Manager of Human Resources and then Director of Human Resources and Corporate Training. Although she handled many of the traditional areas of Human Resources management, she had no authority over the company’s compliance with the Fair Labor Standards Act (FLSA) – that authority was vested in her boss.

FLSA VIOLATIONS NOTED

Nevertheless, Rosenfield complained frequently to her boss that the company was not complying with the FLSA, often noting that many employees were misclassified as exempt and should receive extra wages. In addition to these complaints, it was estimated that she made these same thoughts known in almost 30 different weekly and monthly reports to her superiors.

Although Rosenfield’s boss wasn’t happy with the complaints, he agreed to address them but told her that it was not her role to determine whether adequate changes were being implemented. When Rosenfield subsequently documented continuing noncompliance and complained to her boss, she was fired, leading her to sue the company for violating the anti-retaliation provision of the FLSA which makes it unlawful to  “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding…”

The lower court dismissed the case, finding that Rosenfield was not protected because she had not actually “filed any complaint” when carrying out her duties as a human resources executive. Rosenfield then appealed to the Ninth Circuit Court of Appeals.

AREN’T MANAGERS SUPPOSED TO SPEAK UP?

The Ninth Circuit recognized that many other circuits use a “manager-specific legal standard” to limit protection. This standard protects against retaliation only if a manager “step[ped] outside his or her role of representing the company” and either filed a claim on their own, took some action to assist others in doing so or otherwise engaged in behavior that could reasonably be seen as asserting rights under the statute.

On the other hand, the court also noted previous US Supreme Court decisions calling for protections to be afforded only if the employer had “fair notice” that an employee was “making a complaint that could subject the employer to a later claim of retaliation.” This test requires a case-by-case analysis of both the content and context of the complaint to determine if it was sufficiently clear and detailed for the employer to interpret it as an assertion of rights as opposed to simply an expression of concern offered by a manager to assist the employer in doing the right thing.

To apply the Fair Notice rule, the appeals court explained the need to be mindful that an employee’s job title and responsibilities are a significant part of the context of the claim. No doubt, a manager is generally expected to speak up about workplace issues and the need for change and a reasonable employer therefore would not be expected to interpret such expressions as the filing of a claim or complaint. However, courts could distinguish between concerns expressed by first-line managers who oversee only daily operational matters and those offered by higher level managers who oversee legal compliance and larger policy issues.

In this instance, the Ninth Circuit ruled that the context of Rosenfield’s complaints should have led the employer to understand that she was seeking to assist others in obtaining FLSA rights. Since FLSA compliance was not within the scope of Rosenfield’s job, her advocacy on this issue could not reasonably be considered merely part of her role as a manager. As such, she was protected from retaliation for voicing her concerns about FLSA violations even though she served as a high level manager.

BOTTOM LINE

This is a troubling decision since it seems to offer special whistleblower-type status to mangers who basically are just doing their jobs. In fact, the dissenting judge pointed out that this decision seems to afford greater protections to managers over rank-and-file workers. The latter, to be protected, must truly take a bold and often intimidating step to file a complaint or stand up for co-workers, essentially becoming adversarial to their employers. Managers, on the other hand, merely need to mention their concerns in the course of doing their jobs.

As noted, other jurisdictions continue to adhere to the “manager-specific” rule so it remains to be seen whether the Ninth Circuit’s view of things gains traction elsewhere. Still, until the Eighth Circuit weighs in, Minnesota employers should exercise a bit of caution to consider the context of a manager’s complaints before determining that their status as a manager eliminates any possibility of a retaliation complaint.

The post Court OK’s HR Director’s Retaliation Claim appeared first on Felhaber Larson.

Explosion of Retaliation Claims

As many employers are aware, retaliation claims have exploded in recent years. According to data from the Equal Employment Opportunity Commission (EEOC), the number of retaliation claims filed with the agency has nearly doubled in the past 15 years. Indeed, there are now more retaliation claims filed with the EEOC than any other type of charge.

The underlying story here began back when Congress amended Title VII by passing the Civil Rights Act of 1991. Among other things, these amendments changed the threshold of proof for discrimination claims from what has been called the “but-for” test (i.e., the challenged employment action would not have occurred “but for” the employer’s illegal motivation) to the less-onerous, “motivating factor” standard (i.e., was the employee’s protected class a motivating factor for the challenged action?).

Higher Standard Now Applies to Retaliation Claims

Writing for a 5-4 majority, Justice Kennedy’s rather lengthy analysis of Title VII and the 1991 amendments boiled down to a simple conclusion that Congress never intended the lower, “motivating factor” analysis to apply to retaliation claims but rather, just to discrimination claims based on the traditional Title VII factors of race, color, religion, sex and national origin.

Accordingly, retaliation claims must be evaluated under the more rigorous test of whether “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”

Bottom Line

It is now clear that the “but-for” standard applies to retaliation claims under Title VII and to claims under the Age Discrimination in Employment Act (ADEA) in accordance with the Court’s decision in Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343 (2009). It remains to be seen whether this analysis also will be applied to retaliation claims under other discrimination laws, such as the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA). Still, this is a big win for employers who now will get the benefit of a more exacting review of retaliation claims under Title VII.

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Imagine you have a white Human Resources (“HR”) professional who insists that a minority employee is persistently underperforming and should be placed on a performance improvement plan (“PIP”).  You are hesitant to place the employee on a PIP because she has a “racially based history” with the organization and you want to avoid a discrimination lawsuit.

The HR professional is impervious, insisting that you are discriminating against non-minority employees by not placing the minority employee on a PIP.  Eventually, it is the HR professional’s performance that is failing, and you terminate her.

Did you just hit into the legal equivalent of a double play: (1) retaliation against the white HR professional for “opposing” the discrimination and (2) reverse discrimination by refusing to place the minority employee on the PIP.

Apparently not.  According to the Minnesota Supreme Court in Bahr v. Capella University, — N.W.2d —-, 2010 WL 3502788 (Minn. Sept. 9, 2010), you committed neither retaliation nor discrimination under the Minnesota Human Rights Act.  The reason is because the minority employee did not experience an “adverse employment action,” an element necessary to the discrimination claim, which serves as a basis for the retaliation claim.

Courts define an adverse employment action as “a tangible change in duties or working conditions.”  Negative performance evaluations, unfair reprimands, and written warnings, while putative disciplinary measures, without more, do not constitute adverse employment actions.

Like a negative performance review, the Minnesota Supreme Court observed that placing an employee on a PIP does not make a tangible change to the employee’s duties or working conditions.  As a result, the minority employee’s discrimination claim would have failed (although it was not asserted in this case) and, as a result, the HR professional’s retaliation claim based on this supposed discrimination fails as well.

Bottom Line

The lesson of Bahr is not for employers to do nothing in the face of an underperforming  employee.  Rather, the employer should be confident that it can take steps to improve an underperforming employee’s performance, including negative performance reviews and PIPs, without risking exposure to a discrimination or retaliation lawsuit. This is true regardless of whether the underperforming employee is in any sort of protected classification.

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