Tag: Retaliation

Dating in the workplace isn’t sexual harassment on its own, and many people who are on the same level enjoy healthy relationship status while working together. That’s often true with two workers from separate teams or departments are dating. But many companies frown on romantic involvement between supervisors and their workers — some even forbid it in policies.

While a supervisor dating a worker isn’t automatically sexual harassment, the possibility of harassment is high once people get romantically involved. Even well-meaning supervisors could unintentionally harass workers if they have romantic feelings for them that are not returned or feel angry about the way a relationship ended.

Even if both parties behave themselves with utmost composure in the workplace during and after a relationship, other problems can arise. If word gets out about the relationship, other employees might believe the person dating the boss is being treated with favoritism. If you are the person dating the boss, you might then experience harassment from others because of your involvement.

Dating and then breaking up with the boss could put you in a position where you feel like you are facing retaliation for your romantic actions, and that retaliation is impacting your job. When someone has hurt feelings and he or she has power over you in the workplace, it can be a bad combination.

While it’s probably best to avoid romantic entanglements with the boss, it’s also true that the heart wants what it wants. Things happen, and a relationship — or lack of one — is not an excuse for unprofessional or illegal behavior on the part of a boss. If you feel like you are being retaliated or discriminated against because of a relationship or emotional tension in the workplace, you have legal options.

Source: Forbes, “Is It Sexual Harassment If I Date My Employee?,” Liz Ryan, accessed Nov. 27, 2015

Employees have a legal right, granted under the National Labor Relations Act, to join together to try to improve their wages or working conditions. Frequently, that results in the attempt to unionize or the decision to join an existing union that already applies to their trade.

However, that doesn’t mean that their employers are going to like it. Put into that situation, it isn’t uncommon for employers to engage in activity that’s generally considered to be “union busting.” One tactic that large employers sometimes use is simply closing down the entire department or store where the unionizing activity is taking place and dispersing the pro-union employees elsewhere (or letting them go).

For example, the puppeteers who have been a part of the Disney Junior show since it opened in 2003 at the California resort, say that the sudden end to their employment is directly related to their decision to join the American Guild of Variety Artists, a union.

The Guild has already filed two lawsuits against Disney in 2015, alleging that the company reduced employee hours and took other retaliatory action against its puppeteers after they signaled they might unionize. Disney ultimately settled the issue and gave the employees back pay.

Now, Disney claims that it’s time to end the puppet show altogether. The company claims the abrupt ending is a result of a need to “make changes to provide compelling reasons for our guests to visit.” The Disney Junior show itself will return — just without any puppets or the unionized puppeteers.

Unfortunately for the puppeteers, while the timing is suspicious, Disney does have a history of abruptly closing old shows and replacing them with new ones — a fact that might insulate them if it comes to a lawsuit. It does seem strange that the Disney Junior puppet shows in other Disney parks are continuing without interruption.

Any concerted activity that might result in a union is generally seen as bad for the employer — especially if the employer is interested in maintaining conditions the way that they are and doesn’t want to negotiate.

When an employer retaliates against you for a legal, protected activity, like attempting to unionize, an attorney can provide information on your next legal steps.

Source: National Labor Relations Board, “Employee Rights,” accessed March 10, 2017

How badly can an employer want to retaliate against a whistleblower?

Apparently, pretty badly, if the $10 million spent defending the wrongful termination claim of a Department of Energy employee is any indication. The process is known as “scorched earth litigation” and it is designed to intimidate and frighten most people into backing down off of a lawsuit and moving on, rather than staying embroiled in a case that can drag on year after year.

In this case, the former Department of Energy employee, who worked as a computer technician in a lab in northern California responsible for maintaining the United States’ stock of nuclear weaponry, testified on behalf of a colleague who was a victim of sexual harassment.

Subsequently, the computer technician was fired for making a few local calls from her office, which cost the Department of Energy a grand total of $4.30.

She sued for wrongful termination and retaliation, and the Department of Energy eventually lost—but not until the California lab dragged the process out over 8 years and spent $10 million in taxpayer dollars trying to beat her.

Scorched earth litigation involves more than a merely aggressive approach to a lawsuit. It usually involves tons of motions, depositions, document requests and pre-trial disputes, all as a way of trying to make the other party want to give up or settle for a much lower-than-necessary amount just to be done with the whole thing.

While this tactic can be difficult to withstand, plaintiffs should keep in mind that attorneys who specialize in whistleblower lawsuits and retaliation claims have probably seen the tactic more than once. So have judges. In response, the courts can take a defendant’s scorched earth tactics into consideration when determining any final award, upping the total dollar amount in order to cover both the plaintiff’s attorney’s fees and court costs.

The goal of the court is to level the playing field and make it possible for anyone with a claim that has merit to successfully bring a retaliation case against an employer—even one that seems like it holds all the money and power.

If you feel that you were wrongfully terminated in retaliation for some part you played in a whistleblower’s complaint, don’t allow a large employer with resources to frighten you out of asserting your rights. Consider talking to an attorney today.

Source: Newsmax, “Report: Dept. of Energy Spent $10 Million on Lawsuit Over $4.30,” Jason Devaney, Jan. 30, 2017

For a lot of people, filing a formal discrimination complaint with the Equal Employment Opportunity Commission or suing an employer for discrimination is often a desperate measure after every other avenue of relief has been exhausted.

It usually doesn’t end up being a comfortable situation for anybody involved, which is why it isn’t unusual for an employee in that situation to resign and move on if he or she is able, no matter how the discrimination complaint or lawsuit turns out.

If that’s your situation, it’s important to remember that your protection against retaliation doesn’t end just because you’ve severed your working relationship with your former employer.

This is critical information to know because your future reputation and ability to move forward in your field could be affected if your ex-employer decides to unload his or her frustration at the first opportunity after you’re out the door. That first opportunity might come along quickly—especially if you leave before finding new employment and a prospective employer calls for a reference.

For some people, the damage an angry former employer can do can be extensive. If you work in an industry that has a relatively small community of people in it, like a specific area of medical research or a branch of academia, a prior employer’s toxic comments about you to others in the field can quickly poison your prospects everywhere.

What actions can be viewed as retaliation by a former employer?

— A negative reference to a future employer based on false or misleading information

— Spreading false information about you to others in your field in order to damage your reputation

— Telling a prospective employer who calls for a reference that he or she can’t have one because you have a lawsuit pending

— Refusing to give a reference at all, including verifying dates of employment, for no other reason than to make it difficult for the former employee to prove his or her work history

In general, if you have to file a post-employment retaliation claim, the court will take a hard look at the ex-employer’s intent. If it seems like your previous employer’s intentions were to retaliate against you and negatively affect your employment prospects or life in some way, that will usually guide the court’s decision.

If you believe you’ve become the victim of post-employment retaliation over a discrimination complaint, the advice and guidance of an attorney can be very beneficial.

Source: FindLaw, “Supreme Court Holds Former Employees Are Protected by Title VII’s Anti-Retaliation Provision,” accessed Dec. 29, 2016

In many cases, if you fail to show up for work or simply don’t do your job to agreed upon parameters, your employer can fire you or take other disciplinary action against you. There are some actions that you can take on the job that are protected by federal or state law, though, and your employer cannot retaliate against you for those actions. That means your employer cannot take disciplinary action, reduce your pay or fire you if you engage in some of the following activities.

You are protected when making reports about discrimination, safety or financial fraud to the authorities or appropriate government agencies. This is known as whistleblowing, and if you do it in good faith, then you are protected by the law.

You are protected when answering questions asked by authorities or federal investigators in such matters. Note that there is a line here; you are not necessarily protected if you talk to others, such as the media, about such matters. You are, however, protected if you bring up issues to supervisors, human resource departments or other appropriate people in the chain of command and reporting within your company.

You are protected if you resist sexual advances or report harassment of any kind to your supervisor. You can’t be fired because you didn’t agree to a sexual relationship or a date with your boss.

Other activities that are protected could include asking for working accommodations because of religious affiliation or disabilities or asking supervisors about compensation when unfair pay practices are suspected. Some of these activities have more gray area than others, so if you think you have been engaging in protected activities and have been retaliated against, it’s important to understand the law and your rights. Our firm works with you to understand your case and provide advice about the best next steps.

Federal laws protect most employees from being fired as an act of retaliation on the part of the employer. This protection only comes into play in certain circumstances, though. Here are some of the things that you can’t be legally fired for.

You can’t be fired because you participated in a lawful investigation of your employer or any worker in the company. This includes being a witness at a hearing, whether you were a witness for or against the employer. As long as you tell the truth as you know it in good faith, the employer cannot retaliate against you even if the testimony you provided was not in the company’s best interest.

You also can’t be fired for reporting illegal or unsafe issues in your workplace. Numerous federal or other regulatory agencies have procedures in place for you to report issues or potential issues such as fraud, violations of safety rules or discrimination in the workplace.

Your protection isn’t limited to not losing your job. Employers can’t reduce your pay, change your position or otherwise discipline you solely because you engaged in one of the protected actions above. If they do, then you have a potential basis for a lawsuit of your own, especially if you were fired. Being let go because you reported one of these types of issues is often a sign of wrongful termination.

To support a lawsuit for wrongful termination or retaliation, you have to be able to prove you were involved in a protected activity. You also have to show that you were let go solely because of that involvement. Many companies will try to show that you were let go for other reasons, making it important to have an experienced professional on your side.

Source: FindLaw, “Retaliation and Wrongful Termination,” accessed Sep. 16, 2016

If you report to your supervisor or employer that you have been discriminated against or sexually harassed, then the employer is not allowed to retaliate against you. Retaliation includes activities that impact your employment or pay if those actions were taken solely because of your report.

Once you make a report, the company usually engages in an investigation. You might also report issues to outside agencies or authorities, and outside investigations might take place. In some cases, the investigations might deem that the issue was not harassment or discrimination. Even if this is the case, you are still protected against retaliation.

An employer cannot fire you or make negative changes in your work relationship simply because you filed a claim that an investigation didn’t uphold. You actually still have legal rights to file a lawsuit, too. Just because an internal investigation deemed no harassment occurred doesn’t mean harassment wasn’t present, for example.

Sometimes, an employer makes a decision that impacts your work even before an investigation is finished. In a good-faith effort to solve the situation, for example, the employer might move you from your position and into another so you aren’t working directly with certain individuals anymore. But if this is a negative move for you, you might want to talk to your employer or reach out to an employment lawyer. It could be unintentional retaliation. The rule is usually that any type of movement related to a claim of harassment should involve the person who is accused of doing the harassing, not the potential victim.

Employment law can become complex with regard to these matters. If you feel you are being retaliated against, consider working with an experienced lawyer to understand what your options are.

Source: FindLaw, “Workplace Retaliation,” accessed Aug. 26, 2016

In the context of employment law, adverse actions are a type of retaliation against workers. The law prevents employers from taking retaliatory action against workers who report or otherwise oppose an illegal action such as discrimination practices. The purpose of the law is to protect the job and opportunities of such workers in the face of an employer or supervisor who might be upset about a report or other action.

One of the most extreme examples of an adverse action is termination. An employer is not allowed to fire or lay off a worker simply because that worker reported or opposed discrimination in the workplace. Employers can’t otherwise cause a worker to not have a job for the same reason, and that includes failure to promote or hire a worker solely because of his or her actions with regard to opposition of discrimination.

Employers cannot take actions against employees that are threatening in nature to punish the employee for his or her report of discrimination. They also can’t place the employee under any sort of special surveillance or bring civil or criminal allegations against the employee that are otherwise unfounded. This type of activity is seen as the employer trying to deter people from speaking up for civil rights.

In short, the employer shouldn’t treat an employee differently from other workers simply because that employee reported discrimination or otherwise spoke against discrimination in the workplace. However, there are a number of actions that aren’t necessarily considered adverse actions. A petty slight or stray comment would not be considered an adverse action. A worker couldn’t bring a lawsuit or other action simply because he or she felt “snubbed” in the workplace.

Understanding whether you are protected against adverse actions and whether adverse actions are being taken against you can be difficult. Consulting with a third-party legal professional can help you better understand such issues.

Source: U.S. Equal Employment Opportunity Commission, “Facts About Retaliation,” accessed July 15, 2016

Your employer has a right to discipline you for poor work performance or attendance, up to and including termination. Usually, this type of action requires a lot of paperwork and your employer has to tell you exactly where you went wrong and why they are taking the action they are. The reason employers take so much care when disciplining employees is that they are not allowed to extend discipline as a form of retaliation.

This means that an employer cannot use discipline to respond to an employee who is exercising any type of protected rights. You cannot be punished or retaliated against for asserting your rights against discrimination or sexual harassment or reporting instances of either of those things, for example.

Employers are also not allowed to retaliate against workers who oppose a practice that is illegal. If you refuse to do something illegal, report illegal activity or testify as a called witness in a case about illegal activity, your employer isn’t supposed to retaliate against you.

The type of things employers might do that could be construed as illegal retaliation include marginalizing a worker so he or she can never move up, refusing to promote a qualified worker solely because of a desire to retaliate or refusing to give a pay raise for the same reason. Docking pay, unfairly going after an employee for numerous minor offenses when others are not treated the same way and termination for no other reason can also be forms of illegal retaliation.

If you feel like you are being retaliated against for asserting your rights or reporting illegal behavior, then you might have a case against the employer. If you have lost your job, fear for your job or are working in a hostile work environment, consider speaking with a lawyer today.

Source: HR Hero, “Retaliation in the Workplace,” accessed April 29, 2016

When someone in a workplace reports an issue of sexual harassment, an employer should take action. However, the type of action that an employer takes is critical to both the employer and employee. The wrong actions can actually result in a situation that is retaliatory in nature, and this could happen even when the employer has good intentions regarding the matter.

When someone reports a possible issue of sexual harassment, an employer should investigate the matter. To reach this point, however, the employer must have a safe and confidential means for individuals to make complaints. If someone feels that they will report an issue and that information will be shared freely with others, they are less likely to do so. If only one person in the entire company takes such reports, there’s a chance that that person could harass someone and no one would ever report it. Employees should have viable options for making such reports.

Once a report is made, employers should investigate the issue and take appropriate action. That action should never be punishment of the person who did the reporting. Even moving that person to a new position to “alleviate discomfort” could be seen as retaliation — although this might not always be the case. Employers should definitely not fire, demote or otherwise alienate someone who has reported an issue.

If you have experienced sexual harassment in the workplace and you feel that you employer does not have an appropriate reporting policy or you feel that your report has spawned harassment, it might be time to talk to someone outside of your workplace. In such a case, if the employer has not appropriately responded to your complaint, you could have the basis for a legal case in Sacramento.

Source: Dummies.com, “How to Deal (with) Sexual Harassment Claims from Your Employees,” Max Messmer, accessed March 18, 2016