Supervisory Briefing Session Avoiding Retaliation Claims

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Supervisory Briefing SessionAvoiding Retaliation
Claims Federal H.R. Laws Tuesday, April 7,
2009 Thursday April 9, 2009
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Avoiding Retaliation Claims

• Presented by
• Colleen Treml
• Office of General Counsel
• Lorraine Tobias-Watson
• - Employee Relations

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Gretas Grievance

• Greta works as an assistant in Bobs
  department. Bob is concerned that Greta is not
  performing her work satisfactorily, including
  consistently spelling his name and the
  Universitys name wrong on all his
  correspondence. He has mentioned it to her, but
  has not discussed it in detail because he has
  decided to give her one more chance.
• Greta goes to Employee Relations and says that
  Bob is discriminating against her because of her
  national origin, and that Bob is sexually
  harassing her.
• The next week, after she misspells the
  Universitys name in a letter to a foundation,
  Bob is prepared to give Greta a poor performance
  review and a written warning.
• What should Bob do?

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Carls Concerns

• Carl is a file clerk in Sues department.
  Carl likes to bring issues to Sues attention to
  try to improve the area. Today, he has indicated
  to her that the boxes in the office pose tripping
  hazards, that the sharp staples poses a puncture
  risk, and that the water in the water cooler
  looks a little brown. He also says that he has
  noticed that older workers get small offices with
  poor lighting.
• Sue decides that the area needs to be
  reorganized to be more efficient, and Sue thinks
  Carls hours should change from 830 A.M. to 500
  P.M. to 100 to 830 P.M. She wants to do this
  tomorrow.
• What should Sue do ?

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Why is Retaliation A Big Deal?

• The Equal Employment Opportunity Commission
  received 32,390 retaliation charges in 2008, the
  highest number ever. In 2007, retaliation
  charges were up 18 from the prior year and
  double 2002 retaliation claims.
• This is the second highest category for EEOC
  charges next to race discrimination higher than
  sexual harassment, gender, age, disability and
  religious discrimination claims.
• The court cases are much more favorable to
  finding retaliation for an employee.
• Recent retaliation cases have resulted in big
  claims against employers and supervisors.

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Some Examples

• A jury issued a 1 Million verdict against
  Lake Ridge Academy in Cleveland in 2008 and in
  favor of a male employee who voiced concern about
  unequal pay for women and believed he was
  unlawfully fired in retaliation for the
  complaint.
• Vanguard agreed to pay 500,000, as part of an
  EEOC Consent Degree, to an Engineer who received
  unfavorable work conditions and assignments after
  complaining about race discrimination.

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Retaliation Stands on Its Own

• For Retaliation to be found, there doesnt
  have to be any evidence of any wrongdoing on the
  underlying complaint.
• An employer can be responsible for retaliation
  even if there was no discrimination, sexual
  harassment or other unlawful conduct.

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Retaliation Law

• Title VII makes it unlawful to discriminate
  against an employee because he/she has opposed
  any unlawful employment practice, or made any
  charge, testified or participated in an
  investigation of an unlawful practice.
• Also, non-retaliation provisions exist in many
  other laws or courts have extended it to these
  workplace safety (OSHA) age (ADEA) disability
  (ADA) family/medical leave (FMLA) workers
  compensation claims etc.

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Latest Law

• Burlington Case 2006 Employer retaliates
  if actions are
• 1) materially adverse to employee and
• 2) dissuade a reasonable worker from
  making/supporting a charge
• So, no longer have to fire/suspend the employee.
  Any materially adverse action counts.
• i.e. schedule change for employee who needs
  certain schedule
• i.e. supervisor does not invite subordinate to
  conference if conference is important training
• Key issue Time between complaint and
  employers actions

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More New Cases

• CBOCS (Cracker Barrel) Case 2008
  Retaliation applies when the employee is
  complaining about the employers treatment of
  someone else and under a different federal
  statute (Section 1981).
• Crawford Case 2009 U.S. Supreme Court
  finds that retaliation claim applies when an
  employee raises an issue when answering questions
  during an employers internal investigation (vs.
  speaking out on own).

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What Can Supervisors Do?

• When an employee brings a complaint or concern
  to you, accept it willingly and do not become
  upset.
• Thank the employee for bringing the issue to
  you. The University has grievance processes
  because we want to learn what may be wrong so we
  can fix it.
• Refer the issue to the right office to review
  i.e. EEO (IDEO), Employee Relations, etc., or
  document the complaint and what you did about it.

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What Can Supervisors DoBefore Taking Any Action?

• Remember that retaliation relates to any kind
  of supervisor action that could be materially
  adverse the employee i.e. switching job duties,
  changing schedule, giving performance reviews
  etc.
• Consider whether the employee has raised a
  complaint or concern with you or another
  University office about an unlawful employment
  practice such as discrimination, unequal pay etc.
  
• If so, think about whether the action you
  wish to take would be materially adverse for this
  employee.

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What Can Supervisors DoBefore Taking Any Action?

• Think about the reason for the action you wish
  to take, and be sure it is not related to any
  complaint filed, I.e. You consider the person a
  trouble-maker.
• Review whether there is information to show
  that the reason the action is being taken is
  unrelated to any complaint that the employee has
  raised.
• Consider whether you have documented the issue
  or the need for reorganization prior to the
  employee raising the complaint.
• Document performance issues at the time they
  arise and address them with the employee i.e.
  reviews
• Talk to Employee Relations or EEO/IDEO.

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What Can Supervisors DoBefore Taking Any Action?

• Consider the timing of the action you wish to
  take in relation to the complaint that has been
  filed.
• Could a different action be taken to address
  the issue or could the action happen over more
  time or at a later date?
• If the action must happen now, do you have
  information to show that the action was planned
  or addressed before any complaint was filed?

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University Policies

• The University has a policy (issued in 2008)
  on Non-Retaliation/Protection for Whistleblower.
• It encourages employees to report any illegal,
  dishonest, discriminatory or fraudulent activity
  to his/her supervisor, Employee Relations or the
  Integrity Hotline.
• If the employee is not comfortable in going to
  his/her supervisor, the employee can go to
  another named office i.e. Employee Relations,
  EEO/IDEO etc.
• Supervisors must contact the EEO/IDEO office
  about any report of discrimination and Employee
  Relations about other reports of illegal,
  fraudulent or dishonest actions.

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University Policies

• The policy prohibits retaliation or harassment
  against any person reporting a concern.
  Retaliation includes termination, compensation
  reduction, poor work assignments, or threats of
  physical or mental harm.
• A person who retaliates against a reporter
  will be subject to corrective action, up to
  termination.
• Employees who feel they have been retaliated
  against are to contact Employee Relations or the
  Integrity Hotline immediately.

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University Policies

• An employee does need to file a complaint in
  good faith.
• Employees must use sound judgment to avoid
  making baseless allegations.
• An employee who intentionally makes a false
  report may be subject to corrective action up to
  termination.

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Grievance Process

• Employees also can file a grievance about
  discrimination or another violation of a specific
  Human Resources policy.
• Employees who wish to file a grievance should
  be referred to the EEO/IDEO or Employee Relations
  Office.
• Employee Relations and/or the EEO/IDEO office
  will consult with the employee and investigate
  the grievance.

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Gretas Grievance

• Greta seems to have legitimate performance
  issues.
• Bob should have addressed issues when they
  arose.
• Once Greta goes to complain about
  discrimination and sexual harassment, she has a
  potential retaliation claim for any action taken.
  
• A poor performance review and written warning
  would be materially adverse actions.
• What documentation does Bob have about the
  issues? His action may have to wait until the
  complaint is investigated.

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Carls Concerns

• Carls general concerns may create a
  retaliation claim under OSHA.
• Carls concern about treatment of older
  workers would create a potential retaliation
  claim. It is enough that supervisor received this
  informal complaint (vs. receiving an official
  grievance).
• Change in work schedule could be materially
  adverse.
• Timing of change is likely to be an issue.
• What documentation exists as to the need for
  the change and when it was first considered?

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Questions?

• If you have any questions, please contact
• --Employee Relations at 368-2268,
• --Inclusion, Diversity and Equal Opportunity at
  368-8877,
• --Office of General Counsel at 368-4286.

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Federal Laws Prohibiting Job Discrimination
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Federal Laws Prohibiting Job Discrimination

• Title VII Civil Rights Act of 1964 (Title VII)
• Covers companies with 15 or more employees.
• Prohibits discrimination due to race, color,
  religion, sex (gender) and national origin in
  hiring, employment (all terms, condition and
  benefits) and termination.
• Prohibits discrimination due to pregnancy and
  requires that pregnancy be treated the same as
  any other non-work related disability.

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Federal Laws Prohibiting Job Discrimination

• Pregnancy Discrimination Act of 1978
• States employment discrimination based on
  pregnancy, childbirth and related medical
  conditions is prohibited under Title VII.

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Federal Laws Prohibiting Job Discrimination

• Equal Pay Act - EPA
• Applies to all employers who are covered by the
  Fair Labor Standards Act.
• Prohibits discrimination on the basis of sex in
  the payment of wages, by barring payment of a
  lower wage to one sex than the opposite sex for
  jobs of equal skills, effort and responsibility
  that are performed under similar working
  conditions.
• Provides limited exceptions for pay differentials
  where an employer can show that difference is due
  to a seniority system, merit system, a system
  that bases earnings on quantity or quality of
  production, or some other bona fide factor.

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Federal Laws Prohibiting Job Discrimination

• Age Discrimination in Employment Act of 1967
  (ADEA)
• Applies to all companies with 20 or more
  employees.
• Prohibits discrimination in hiring, employment or
  termination against applicants and employees age
  40 and over.
• Prohibits retaliation against the person making
  the complaint or those assisting the complainant.
  

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Federal Laws Prohibiting Job Discrimination

• Title I of the Americans with Disabilities Act of
  1990
• (ADA)
• Applies to all companies with 15 or more
  employees.
• Prohibits employment discrimination against
  individuals with a disability if they can perform
  the essential functions of the job without
  accommodations or with reasonable accommodations.
  
• If accommodations are needed, they must be
  reasonable based upon the size of the company,
  nature of the job and the costs of the
  accommodations.

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Other Federal Laws
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Fair Credit Reporting Act - FCRA

• Forbids obtaining or using a consumer credit
  report in connection with decisions about
  employment without providing and obtaining
  written consent to the employee of rights under
  FCRA.

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Fair Labor Standards Act - FLSA

• There are four main components
• Minimum wage rules apply to any employee of any
  company who produces goods for interstate
  commerce or engages in duties affecting
  interstate commerce during any workweek.
• Covered employees must be paid at least the
  federal minimum wage for each hour that they work
  and overtime pay at one and one-half the
  employees regular pay for all the hours worked
  over 40 in a workweek.
• Restrict employment of youths below the age of 18
  to no more than 20 hours per week when school is
  in session.
• Employees who are not paid in compliance with the
  law may complain to the DOL or file an action in
  federal court.

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Family and Medical Leave Act (FMLA)

• Applies to employers with 50 or more employees
  within a 75 mile radius.
• To be covered by FMLA an employee must work for a
  covered employer, worked for the employer at
  least 12 months, and worked at least 1,250 hours
  over the previous 12 months.
• Employers must grant eligible employees up to a
  total of 12 weeks of unpaid leave during any 12
  week period for one or more of the following
  reasons birth/care of newborn, placement of
  son/daughter for adoption or foster care, care
  for immediate family member with a serious
  illness and health condition medical leave due to
  employees own health condition.

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Drug Free Workplace Act

• Requires federal contractors to
• Advise employees that possession, use or
  distribution in the workplace is prohibited.
• Initiate drug-free awareness programs about the
  dangers of illicit drugs and the availability of
  EAP programs.
• Advise employees of their obligation to promptly
  report a conviction for workplace drug
  violations.

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Occupational Safety and Health Act (OSHA)

• Applies to any employer engaged in a business
  that affects interstate commerce, and imposes a
  general duty to maintain a safe place to work.
• The General Duty Clause Each employer furnishes
  a place of employment which is free from
  recognized hazards that are causing or likely to
  cause serious injury or death.
• Major themes running through OSHA Standards
• Hazard Assessment
• Written programs
• Training

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Consolidated Omnibus Budget Reconciliation Act
(COBRA)

• Applies to companies with 20 or more employees.
• Allows employees (or dependents) who otherwise
  would lose coverage under the company medical
  insurance plans to continue their existing
  coverage by payment of the companys cost for
  such insurance (plus a 2 percent administrative
  fee).
• Extend health insurance coverage for 18 months.
  In certain circumstances this period may extend
  to as long as 36 months.

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Questions?

• Employee Relations
• Contact Information
• ? Shalice Smedley, 368-2268
• ? Kathy Willson, 368-0195
• ? Carolyn Gerich, 368-2458
• ? Lorraine Watson, 368-4503