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Wednesday, March 23, 2011

Supremes Pretty Consistently Oppose Retaliation

The Supreme Court isn’t exactly known for being pro-employee. But it has been fairly consistently pro-employee in one area: retaliation. Yesterday’s ruling in favor of an employee who complained verbally about a Fair Labor Standards Act (FLSA) violation is just one of a series of recent rulings that demonstrate employers need to beware of retaliating.
Oral complaints are protected: In yesterday’s Kasten v. Saint-Gobain Performance Plastics Corp, the Court found that the anti-retaliation provision of FLSA which applies to people who “file” complaints applies even where the “filing” was purely a verbal complaint.

Retaliation against a fiancé is illegal: Earlier this year, in Thompson v. North American Stainless, LP, the Court ruled that the fiancé of an employee who complained about sex discrimination could bring a retaliation claim when he was fired shortly after she complained. It’s, “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” Yeah. It was pretty obvious, wasn’t it?

You don’t have to be the one who complained to be protected: In 2009, in Crawford v. Metropolitan Government of Nashville, the Court decided an employee who was interviewed in a sexual harassment investigation was protected: “The antiretaliation provision’s protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation.” Gotta love this one since she won a $1.5 million verdict last year after the case went to trial. Oh, and because the majority opinion referred to the employer’s position as “freakish.” Well, not quite their whole position, but the word “freakish” was used.

Race discrimination statute prohibits retaliation: In 2008, the Court in CBOCS West, Inc. v. Humphries found that 42 U.S.C. § 1981(a post-Civil War race discrimination statute) prohibits retaliation.

Age discrimination statute prohibits retaliation: The same day in 2008, the Court in Gomez-Perez v. Potter, Postmaster General found that the Age Discrimination in Employment Act similarly prohibited retaliation against a federal employee.

Retaliation other than termination is illegal: In 2006, the court decided Burlington Northern v. White said: “We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.”

So while some other employment laws may be slowly eroding away in favor of employers, the anti-retaliation laws are alive and well. Does this mean employees can run to the courthouse at will now? No. Employees still need to be concerned about retaliation. You need to know your rights before you complain.

Donna’s tips:

a. There is still no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, ethical violations, bullying, or jerkish behavior. Only if you do something that puts you in a legally protected category are you protected from retaliation. That means objecting to something that’s illegal under a statute such as Family and Medical Leave Act, Title VII, state discrimination laws, wage/hour laws, OSHA violations, or some other legal violation.

b. If you’re thinking about bringing a claim under a whistleblower law, there are lots of hoops you have to jump through, so know your responsibilities and rights under the whistleblower laws before you complain.

c. I did a post about when you should think about reporting coworkers and how to do it. Despite yesterday’s ruling about oral complaints being protected, I still suggest you put your complaint (if it’s a legally-protected complaint) in writing so the employer can’t deny it later.

d. General harassment, hostile environment and bullying are not illegal, so you’re not protected from retaliation if you report them.

4 comments:

  1. Dear Donna:

    I don't know about law but bullying is outright wrong in my humble opinion.

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  2. I agree D.M. It's a waste of company time, so HR departments should always take it seriously and shut it down. Nobody should have to be afraid at work.

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    1. Hi i reported more the 15 reports of discrimination actions told to hourly employees from support. And managers to do to me not what action i accured only what actions my niece whom wasnt employed by walmart had done she was caught for theft at a local hem store soon after at time of trail walmart tryed to apply charges against her soon failed to do so but only got to band her from all walmart entering if caught can be a criminal traspassing against her if she failed to follow rule. A year after i was employed by walmart soon after a support manager newly promoted found out that i was related to her i didnt know as to how badly or far her trail went due to her actions me anfd family members soon disowned her as to we were upset of her doing criminal action she had gained from her  own. Bad habit . i didnt gain any knowlege as to knowing walmart was also involved in her trail back to my experience discrimination newly support manager finding out she was related to me and i corrected him by saying she was my niece not by blood but by marriage i never diend her relation to me .there after the games i experienced or so humilating that went up manager above support manager and expressed my feelings towards his involvement of making me feel i was being discriminated of only to whom i was related to not by avtions ive accured or done .manager i reported too insured me that he had no knowledge of experiences i indured and to not to be alarmed as to soon it well be relieved of why he acted like he did soon after he support manager got fired due to stealing money from miney center so i thought bad experiences soon to be history wront i was still being treated with hate by employees he dirtyed theyre minds and labeled me as a thief i went and told our newly support manager of feeling as to employees being so hateful towards me she insured me to not being able to change what he exsupport manager had done but will try to correct what he created . soon after i indured alot of humilation and harrasement from employees i soon was told that newly support manager was telling hourly employees to follow and try to catch me stealing then she also even went as far to tell two male hourly male employees to brakeinto my car they were also went as to unprye my car door open . this was told to me by a exployee.soon after went to a manager above her again i expressed my feelings and knowledge as to them male hourly employees were told by support manager was telling them to brake in. He insured me he had no knowledge of my experienced harrasment and told me he well put a stop to all this soon after again i wxperienced harrassement it even got worse too a lobby cart pusher was told to follow and chase me every where i go he was to go .i soon got my family to record my experiences i was experiencing at employment .i reported video caught i even reported a physical attempted to cause on me by a transgender male employee whom was caught actinig as if he was puching and end with a slap behind my head area i felt the air blow my heard   the slap ending i turned around i saw no one but did notice a box of trash movement ensuring me i was gonna be getting a feed back asto what happen cause i was determined to let me experienced of harrasment and discrimination bullieing i was infact correct i had family members recording any experienced bulling to be recorded at  corners and so they did i soon gathered a total of 86 video typing

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    2. Continued .................total of 86 video typing of cruel behavioral attachtions done to me at every action included a visual apperance if supportmanager .i reported and also stated alot of favortism acaused by support manager and whom was able to not wirk but play i also stated when support manager wasnt present due to her being off my day with out her employees were so nice to me a guarantee smoith day i would indulliged. Sson followed tge knowledge of my reports were being told by ethic ti support manager .i was insured support manager was telling accused favortism intakers cause soon a sudden working habits wow i said i also reported my incounter of hearing the othier head manager if apologizing to the uninaccent employees as to he was sorry they have ti be placed to grow this he knows i have to get firied i told the same equale manager like the apologizer who i reported my first experienced he apologized.then the last straw i intoke was 2/26/16 i was tasked in apparel i was putting undies away i slightly bending down a customer so i thought was caught attempting to rise my back of shirt.i was luckly having yet again cousins recordering different angles i soon got informed a hiding employee was in fact caught as well of guestures as to lift up my shirt he did try but to late i turned soon another recorded pair of couple was man alsobreciving guested and replying looking at hiden giving guested person asking to lift up back of shirt he attempted i turned turned he quickly apologized and split my recording family member followed and soon discovered customer / actors were laughing with employees about attempts capturched recorded aswell i soon couldnt take this behavior i was given from employeyes and management soon i thought captured enough hr and ethic never did even respond the bafmd intake ive had i quit at 245 am. What can i do ? Before i quite i reported to hr told them i thought it was rude of no answered complaint ive reported no follow up just two thanking me of recived reports what can i do ??? Help please.

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