Whining & Dining:Avoiding Whistleblower and Retaliation Claims
Retaliation StatisticsRetaliation charges filed with EEOC have risendramatically in last 10 years • 2000 - 21,613 retaliation charges • 2011 – 37,334 retaliation charges • This represents 37% of all charges received by the EEOC in 2011 • In September and October 2011, the EEOC filed 21 retaliation lawsuits
Federal Laws With Retaliation Provisions:• Title VII of the Civil Rights Act of 1964• The Age Discrimination in Employment Act (ADEA)• The Americans with Disabilities Act (ADA)• The Family and Medical Leave Act (FMLA)• The Fair Labor Standards Act (FLSA)• The National Labor Relations Act (NLRA)• The Occupational Safety and Health Act (OSHA)• Sarbanes-Oxley Act of 2002
Florida Laws with Retaliation Provisions:• The Florida Workers’ Compensation Act (§ 440.205)• The Florida Civil Rights Act of 1992 (FCRA)• The Florida Public Sector Whistleblower’s Act (§ 112.3187)• The Florida Private Whistleblower’s Act (§§ 448.101- 448.104)
Whistleblower vs. Retaliation• Whistleblower – employer violation of law, rule or regulation• Retaliation – related to employee’s individual rights
Who Is Protected From Retaliation?• Current employees• Former employees• Job applicants• Associates of those employees who engage in protected activity
Elements of a Retaliation Claim Three Elements: 1. Protected Activity 2. Adverse Action 3. Causal Connection
Protected Activity-Opposition vs. Participation• Opposition – making a formal complaint; refusing to obey an employer’s order.• Participation - participation in external investigations or a lawsuit.
Florida Whistleblower Act Three subsections:1. Disclosure2. Participation3. Opposition – most common
Sarbanes-Oxley Act of 2002 Protected Activity• Purpose: restore investor confidence in the financial markets by improving corporate responsibility.• How this is accomplished: provide whistleblower protection to employees of publicly traded companies (and contractors) who report corporate fraud.
Dodd-Frank Act of 2010• Implemented revisions to the SEC and SOX whistleblower provisions.• Monetary awards to eligible individuals who provide original information that leads to successful SEC enforcement actions resulting in monetary sanctions exceeding $1 million.• Effective August 12, 2011 – 334 whistleblower tips in first 7 weeks.• Largest number of tips – Texas, New York, Florida.
Must There be an Actual Violation of A Law, Rule or Regulation?• Title VII and FCRA retaliation – employee must have a good faith belief that there was a violation of a law when they engaged in protected activity.• FWA – employee must show an actual violation of law, rule or regulation.
What is an “Actual” Violationof a Law, Rule or Regulation?
TESTIs This an “Actual” Violation of a Law, Rule or Regulation?
Supervisor is stealing from cash registerand giving away food 1. Yes 2. No 3. Isn’t that his job?
Company violated own internal policy 1. Yes 2. No 3. So what, who cares?
FWA Practice Scenario: Protected Activity• University security guard lawsuit.• Tattles on co-worker involved in sex scandal.• Reports to university and police.• Security guard is fired and sues under Florida Whistleblower’s Act.
Adverse Employment Action• Burlington Northern and Santa Fe Rwy Co. v. White - retaliatory conduct need not be employment related.• Employee must show that the action would have dissuaded a reasonable worker from making or supporting a charge of discrimination.
Adverse Employment Action• Obvious: – Termination, demotion, failure to promote, raises.• Not as Obvious: – A poor performance review that effects merit increase eligibility, transfers.
TESTIs This Employment Action Adverse?
Supervisor’s refusal to invite anemployee to lunch. 1. Yes 2. No
Exclusion of an employee from aweekly training lunch. 1. Yes 2. No
Snub or cold shoulder by co-workers. 1. Yes 2. No
Yelling at the employee. 1. 2.
Heightened scrutiny. 1. Yes 2. No
A written reprimand that waslater rescinded. 1. Yes 2. No
A lower performance evaluation. 1. Yes 2. No
Avoiding Whistleblower and Retaliation Claims1. Respond to employee complaints a. Do not take complaint personally b. Maintain confidentiality c. Implement strong anti-retaliation policy d. Train managers and supervisors
Avoiding Whistleblower and Retaliation Claimse. Remove authority of alleged discriminator to make employment decisions about accuser (and separate)f. Investigate thoroughlyg. Notify complainant about outcome of investigation
Avoiding Whistleblower and Retaliation Claims2. Assess the risks before taking adverse action a. Consider the complaint b. Consider timing c. Consider the response to the complaint
Avoiding Whistleblower and Retaliation Claimsd. Consider the consequences of the complainte. Consider the employee
Avoiding Whistleblower and Retaliation Claims3. Dealing with Performance Issues a. Objectively document performance b. Be fair c. Never fire on the spot