Retaliation and Whistleblower Claims

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This is a 2005 presentation on the topic of Retaliation and Whistleblower protections under the law.

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Retaliation and Whistleblower Claims

  1. 1. @Victoria L.H erring,www.H erringLaw.com Retaliation & Whistleblower Claims ©Victoria L. Herring September 2005 www.HerringLaw.com page 1 ©Victoria L. Herring, www.herringlaw.com created 2005
  2. 2. @Victoria L.H erring,www.H erringLaw.com The Nature of Retaliation Natural, human emotion An emotional response to perceived harm Whistleblowing: affirmatively reporting when believes something is wrong page 2 ©Victoria L. Herring, www.herringlaw.com created 2005
  3. 3. @Victoria L.H erring,www.H erringLaw.com Whistleblowing Protection given employees who “blow the whistle” - who report to proper authorities wrongdoing by government officials (and others) statutory protections (state & federal) traditional tort & contract remedies (intentional infliction of emotional distress, defamation, breach of contract must report to the proper authorities (Hegeman v. Kelch, Iowa S.Ct. 2003) page 3 ©Victoria L. Herring, www.herringlaw.com created 2005
  4. 4. @Victoria L.H erring,www.H erringLaw.com Legal Protections “At Will” Employment: In Iowa, an employee is presumed to be working “at will” and can be fired for a good or bad or no reason. Limited somewhat: by contract, public policy or statutes page 4 ©Victoria L. Herring, www.herringlaw.com created 2005
  5. 5. @Victoria L.H erring,www.H erringLaw.com Protections for Employees Contract Terms written or oral contracts or agreements, including collective bargaining agreements contracts implied page 5 ©Victoria L. Herring, www.herringlaw.com created 2005
  6. 6. @Victoria L.H erring,www.H erringLaw.com Public Policy Exception clearly expressed public policy Davis v. Horton (2003): court will find policy if clearly stated in sources other than statutes, but will proceed cautiously (involvement in mediation not a ‘protected activity’, not clearly enough established as one) two views: following the law or refusing to commit an illegal act page 6 ©Victoria L. Herring, www.herringlaw.com created 2005
  7. 7. @Victoria L.H erring,www.H erringLaw.com Public Policy created by state or federal law, including constitution and statutes and administrative rules, but other sources as well the public policy must be clearly expressed and well-recognized Sources of Policies page 7 ©Victoria L. Herring, www.herringlaw.com created 2005
  8. 8. @Victoria L.H erring,www.H erringLaw.com Types of Policies seeking Unemployment Compensation no retaliatory discharge for seeking UC - Lara v. Thomas filing Workers Compensation claim filing or threatening to file WC claim is protected - Springer, Smith cases refusal to participate in illegal activities page 8 ©Victoria L. Herring, www.herringlaw.com created 2005
  9. 9. @Victoria L.H erring,www.H erringLaw.com Protesting & Complaining Opposition and Participation protesting illegal acts (i.e., unlawful polygraph testing, opposing discrimination) page 9 ©Victoria L. Herring, www.herringlaw.com created 2005
  10. 10. @Victoria L.H erring,www.H erringLaw.com Participating in a protected activity, such as filing a complaint, providing testimony, exercising the right to vote. U.S. Capitol building page 10 ©Victoria L. Herring, www.herringlaw.com created 2005
  11. 11. @Victoria L.H erring,www.H erringLaw.com Three Parts of each case: Employee involved in protected conduct Adverse employment action causal link between the activity and adverse action Proof of Retaliatory Discharge page 11 ©Victoria L. Herring, www.herringlaw.com created 2005
  12. 12. @Victoria L.H erring,www.H erringLaw.com “Protected Activity” is the conduct of the plaintiff protected by the law? statute or public policy is the protected activity linked to the adverse retaliatory action (causation)? page 12 ©Victoria L. Herring, www.herringlaw.com created 2005
  13. 13. @Victoria L.H erring,www.H erringLaw.com Court must decide whether a public policy exists and was undermined by employer’s actions It is sufficient for the employee to have a good faith intention to be involved in protected conduct he/she need not actually have been involved in that conduct page 13 ©Victoria L. Herring, www.herringlaw.com created 2005
  14. 14. @Victoria L.H erring,www.H erringLaw.com Statutory Protections Iowa Laws - examples Whistleblowing activities; state employee protections, Iowa Code § 70A.28 - 29 retaliation under Iowa Civil Rights Act, Chapter 216, Iowa Code § 216.11 protection for filing wage payment claims, Iowa Code § 91A others: landlord-tenant law, child support provisions, garnishments, jury service, joining or quitting a union page 14 ©Victoria L. Herring, www.herringlaw.com created 2005
  15. 15. @Victoria L.H erring,www.H erringLaw.com Federal Laws National Labor Relations Act, 29 U.S.C. § 158(a). Fair Labor Standards Act, 29 U.S.C. § 215 et. seq. Occupational Safety and Health Act of 1970, 29 U.S.C. § 660(c) protections for whistleblowing employees of the banking system, financial institutions, the agencies responsible for the seven environmental Acts, other regulatory agencies of the government various civil rights and employee protection acts: Title VII, ADA, Rehabilitation Act, Age Discrimination in Employment Act, Title IX [Education], Family & Medical Leave Act, etc. general lst Amendment protections from government imposition page 15 ©Victoria L. Herring, www.herringlaw.com created 2005
  16. 16. @Victoria L.H erring,www.H erringLaw.com Adverse Employment Action action taken must be adverse courts tend to look for some financial loss or significant disadvantage to see whether truly adverse action was taken sometimes, however, a sigificantly harmful act can suffice -- Harris “chest shot” case page 16 ©Victoria L. Herring, www.herringlaw.com created 2005
  17. 17. @Victoria L.H erring,www.H erringLaw.com does not include prior or earlier adverse actions does not include actions of which employer had no notice logically, the employer cannot be blamed for actions before the protected activity occurred or if it didn’t know of it page 17 ©Victoria L. Herring, www.herringlaw.com created 2005
  18. 18. @Victoria L.H erring,www.H erringLaw.com “Tangible Job Detriment” Courts require some ‘tangible’ harm to be done before they will intervene in an employer’s business decisions Financial harm, salary or benefit changes $$$$$ Adverse Employment Action page 18 ©Victoria L. Herring, www.herringlaw.com created 2005
  19. 19. @Victoria L.H erring,www.H erringLaw.com A tangible change in duties or working conditions or an ultimate employment decision such as termination, demotion, reassignment could be enough. Manning v. Metropolitan Life Ins. Co., 127 F.3e 686 (8th Cir. 1997). page 19 ©Victoria L. Herring, www.herringlaw.com created 2005
  20. 20. @Victoria L.H erring,www.H erringLaw.com Clark County School District v. Breeden, U.S. Supreme Court (2001): However Not every slight rises to the level of a federal court’s protection no reasonable person could have believed that a single incident of alleged sexual harassment violated Title VII, precluding retaliation claim based on employee's internal complaints about incident, and the fact that Equal Employment Opportunity Commission (EEOC) issued right-to-sue letter to employee three months before employee's supervisor announced she was contemplating employee's transfer was insufficient to establish causation element of retaliation claim page 20 ©Victoria L. Herring, www.herringlaw.com created 2005
  21. 21. @Victoria L.H erring,www.H erringLaw.com 8th Circuit: Montandon The Eighth Circuit court said that sufficiently adverse actions include termination, demotion, transfers with changes in pay or working conditions, and negative evaluations used as the basis for other employment actions. Montandon v. Farmland Indus. Inc., 116 F.3d 355 (8th Cir. 1997) page 21 ©Victoria L. Herring, www.herringlaw.com created 2005
  22. 22. @Victoria L.H erring,www.H erringLaw.com Causation must be a ‘causal link’ between the person’s involvement in the protected conduct and the adverse action the plaintiff must show that the adverse action was taken because he/she engaged in protected activity. Harris v. Secretary of U.S. Dept. of Army, 119 F.3d 1313 (8th Cir. 1997). page 22 ©Victoria L. Herring, www.herringlaw.com created 2005
  23. 23. @Victoria L.H erring,www.H erringLaw.com timing can be important, but often is not enough (see Breeden case) in fact, timing could disprove the retaliatory motive if the adverse action came too early or too distant suspicious behavior, lies, illogic may show the real reason is for a retaliatory purpose page 23 ©Victoria L. Herring, www.herringlaw.com created 2005
  24. 24. @Victoria L.H erring,www.H erringLaw.com How to Prevent Retaliation Prevention is the best ‘cure’ avoid promises, in writing or oral have clear terms and conditions of employment page 24 ©Victoria L. Herring, www.herringlaw.com created 2005
  25. 25. @Victoria L.H erring,www.H erringLaw.com A solid hiring procedure clear, established known to all followed page 25 ©Victoria L. Herring, www.herringlaw.com created 2005
  26. 26. @Victoria L.H erring,www.H erringLaw.com Evaluations and Reviews Have a set procedure, checklist follow policies be honest and open can this employee be saved? page 26 ©Victoria L. Herring, www.herringlaw.com created 2005
  27. 27. @Victoria L.H erring,www.H erringLaw.com Personnel Files confidentiality, privacy respected make sure the record in file matches the discipline or discharge Employee has a right to his/her file - Iowa Code § 91B page 27 ©Victoria L. Herring, www.herringlaw.com created 2005
  28. 28. @Victoria L.H erring,www.H erringLaw.com Handbooks and Manuals good to have, but have an “at will disclaimer” statement featured make sure employee receives and signs for the handbook be sure to follow it page 28 ©Victoria L. Herring, www.herringlaw.com created 2005
  29. 29. @Victoria L.H erring,www.H erringLaw.com Document, Document, Document keep records and documents of performance, good and bad make sure the employee knows the record-keeping is complete and fair In investigations, involve the company’s lawyer or HR personnel page 29 ©Victoria L. Herring, www.herringlaw.com created 2005
  30. 30. @Victoria L.H erring,www.H erringLaw.com Discipline and Discharge have documents to back it up review the decision to be sure it is well supported and not reactionary make sure the reasons for the decision are solid and consistent page 30 ©Victoria L. Herring, www.herringlaw.com created 2005
  31. 31. @Victoria L.H erring,www.H erringLaw.com Legal Proceedings Unemployment compensation: protest when necessary, not as a general rule make sure your UC record matches the internal documentation Other proceedings: honest and fair page 31 ©Victoria L. Herring, www.herringlaw.com created 2005
  32. 32. @Victoria L.H erring,www.H erringLaw.com Cushioning the Blow Can this person have a reference? work out a severance package? obtain a release, if possible offer reinstatement to cut off damages page 32 ©Victoria L. Herring, www.herringlaw.com created 2005
  33. 33. @Victoria L.H erring,www.H erringLaw.com Limit Communications treat as confidential action speak only to those with a ‘need to know’ use Letter of Termination, if warranted and after review with HR or Lawyer page 33 ©Victoria L. Herring, www.herringlaw.com created 2005
  34. 34. @Victoria L.H erring,www.H erringLaw.com Preemption: statutory procedures can prevent lawsuits based on tort or contract Preclusion by contractual requirements Washington DC overpass Defenses to Litigation page 34 ©Victoria L. Herring, www.herringlaw.com created 2005
  35. 35. @Victoria L.H erring,www.H erringLaw.com Privilege unemployment compensation law provides absolute privilege for employer’s statements - § 96.11(6)(b)(2) common law qualified privilege, if good faith communication to those with a ‘need to know’ page 35 ©Victoria L. Herring, www.herringlaw.com created 2005
  36. 36. @Victoria L.H erring,www.H erringLaw.com Limitation of Damages lack of mitigation by the employee “after-acquired evidence” concept offer of reinstatement cut-off page 36 ©Victoria L. Herring, www.herringlaw.com created 2005
  37. 37. @Victoria L.H erring,www.H erringLaw.com Just Cause defense a poor performer or one terminated for misconduct can be discharged jury question at trial: was it a retaliatory discharge or a justified one? page 37 ©Victoria L. Herring, www.herringlaw.com created 2005
  38. 38. @Victoria L.H erring,www.H erringLaw.com Timing timing sometimes can defeat a summary judgment, but not always bad timing can look bad for trial but not be enough to defeat the employer’s justification but bad timing can make a jury mad! page 38 ©Victoria L. Herring, www.herringlaw.com created 2005
  39. 39. @Victoria L.H erring,www.H erringLaw.com Thank you. Victoria L. Herring, www.HerringLaw.com page 39 ©Victoria L. Herring, www.herringlaw.com created 2005

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