Articles Posted in Retaliation

California anti-retaliation laws Unlike many other claims that can only be brought against employers or individual employees, California anti-retaliation laws extend much further. In many cases, a retaliation case can be made in many cases against “any person”.  This certainly applies to FLSA (Federal Labor Standards Act) and many California Labor Code provisions.

In a recently decided case by a 9th Circuit – Arias v Raimondo – the court illustrated that point very well. In that case, a plaintiff, who did not have a lawful authorization to work in the US, brought various wage claims against his employer under FLSA. The employer’s attorney retaliated against the claimant by reporting him to the immigration authorities and by planning for the US Immigration authorities to take him into custody at his deposition. The 9th Circuit ruled that Plaintiff could proceed with his retaliation claim against both  – the employer and the attorney.

Further, the court noted that the FLSA anti-retaliation provision specifically states that liability can be imposed on … “any person”, or “employer” which is defined as anyone acting directly or indirectly in the interest of that employer as relates to the employee making a claim. Surely, under this definition an employer-defendant’s attorney retaliating against a Plaintiff falls square within the definition of both “any person” and “employer” as noted above.

anti-retaliation-protection-1102.5Section 1102.5(b) protects an employee from retaliation by his or her employer for disclosing information to a law enforcement agency where the employee has reasonable cause to believe that the information discloses a violation of state or federal law. Hager v. County of Los Angeles (2014). Section 1102.5(b) has been broadly construed to protect an employee from retaliation by the employer even where the report to law enforcement concerned a violation of law committed by a fellow employee or contractor, and not by the employer. McVeigh v. Recology San Francisco (2013) . Where an employee is harmed by retaliation in violation of section 1102.5, he is entitled to maintain a damage claim against the employer.

To establish a prima facie case of retaliation under section 1102.5(b), a plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two. (McVeigh). An employee engages in protected activity under section 1102.5(b) when he or she discloses to a governmental agency reasonably based suspicion of illegal activity. If the plaintiff meets his initial burden when making a claim, the defendant has the burden to prove a legitimate, non-retaliatory explanation for its actions. To prevail on this type of claim then, the plaintiff has to show that the explanation is a pretext for the retaliation and not the actual, true reason for the action against that complaining employee.

Where the plaintiff succeeds in proving a violation of section 1102.5(b), compensatory damages are recoverable, including economic damages for past and future wage loss as well as emotional distress damages.

complaints-on-facebookIt is important to remember that the anti-retaliation provisions of Title VII and the similar California laws go far beyond protecting those employee who complain to the employer or a government agency about discrimination or harassment at workplace. The range of activities for which firing an employee would be considered retaliatory and unlawful extends far beyond those complaints.

For instance, in Sumner v US Postal Service (1990) the court specifically pointed out that “protected activities” under the law include informal complaints, complaints or letters to customers about discrimination and expressing support for co-workers who filed formal charges. Grant v Hazelett Strip-Casting Corp. (2d Cir. 1989).  

The more difficult question, that will surely arise in the near future at a modern workplace, is whether complaining or sharing beliefs about discrimination and harassment at workplace through Facebook, Twitter and other social media channels will be considered a protected activity. Specific legislation to address and include social media will likely be necessary in order to clarify this point, as the way the anti-retaliation laws are written today does not account for social media communication of discrimination and harassment concerns by employees.  This legislation will have to take into account such factors as what is posted, where it is posted exactly, and how many people have access to viewing that posting in question, as well as whether the content reasonably identifies who the employee is complaining about.

retaliation-wrongful-termination-employer-liesOne of the important elements of proving a retaliation claim in an wrongful termination case is showing that the employer’s given reasons for termination are either inconsistent or plainly not true, which makes it look like the employer is trying to cover up the true reason for retaliating against you and/or your termination with lies.

In one case we recently handled an employer shot himself in the foot by telling me during the deposition testimony about how bad my client was as a worker, he would go on and on about every little thing that my client did wrong while working for the company over the period of 8 years. That, however, was hardly helpful to the employer, because my client never received a single warning or counseling letter. Not only was my client one of the higher ranked employees, but he even received a very flattering reference letter when he was “laid off.” The fact that my client was replaced about a month after being “laid off” was yet another sign that this was not a lay-off but a firing. The employer tried to hide the fact that my client was replaced by changing the title of the new employee. The duties of the positions remained the same, however, which counts much more than the label that the company gave to any given job.

It’s the attorney’s job to uncover the lies and inconsistencies to make the wrongful termination case stronger. As a client, you can do a lot to help your attorney make your case stronger by directing him/her into the direction where these lies and inconsistencies in the employer’s policies and the reasons for your termination can be found. Typically, wrongful termination cases require proving discriminatory/retaliatory mindset on the part of the employer. Direct evidence of discrimination/retaliation is hardly ever available, and from the courts’ point of view, the employer’s misrepresentations about the employee’s performance, policies and procedures, and reasons for termination are critical in helping an employee to survive a motion to dismiss in court (or motion for summary judgment) and/or achieve a better result through settlement negotiations or in trial.

retaliation-against-nursesOn April 28, 2015, the Los Angeles Superior Court jury returned a verdict for a plaintiff-nurse in the amount of $299,000 in a retaliation and wrongful termination case against her employers – a hospice and a home health agency. The plaintiff, Vanessa Manuel, worked part time as a registered nurse for both companies for three months. On May 2, 2013, she was offered a full time position and working shifts at both companies. On the same day she reported to the Director of Nursing that the social worker at the hospice was unlicensed in violation of state law. Just was fired from both companies just 5 days later. Shortly after the plaintiff was fired, she reported the violating to the Department of Public Health, who investigated the complaint and issued a deficiency to the hospice.

During trial, a few important documents that the employer presented turned out to be false and fabricated, which obviously discredited the defendants testimony and made the jury doubt just about anything the employer was presenting at trial. Plaintiff’s damages were enhanced by the fact that she had a seizure disorder that prevented her from taking many kinds of nursing jobs and therefore made her job search harder than for other nurses.

This case is an example how the timing of events, i.e. a protected activity of reporting unlawful conduct and subsequent termination and fraudulent document can enhance damages and jury award in a wrongful termination case.

oral-complaints-retaliationSome employees assume that unless they have proof of complaining about a particular labor law violation, the protections of anti-retaliation laws do not apply to them. However, as the US Supreme Court recently held in Kasten v Saint-Gobain Performance Plastics Corporation (2001), complains that are made orally are also protected. In that case, Mr. Kasten was employed as a plant worker. He claimed that he was fired in retaliation for complaining about the location of time clocks which prevented him and other employees from getting paid for the time it took to get from the area where they put on and took off their uniforms to the area where they worked. Shortly after orally complaining about this to his management, he was disciplined and fired. Mr. Kasten filed a retaliation lawsuit under FLSA section 213(a), which forbids employers from terminating any employee for “… filing any complaint”.  Interestingly, the court found “filing” to include oral complaints, if they are sufficiently clear.

Of course, in the vast majority of cases when the only evidence of complaining you have is your own word, the employer will deny hearing any such complaints from you 9 times out of 10. Therefore, if you didn’t memorialize your complaints in writing, it would really help to have some corroborating evidence of having that conversation, such as a witness-coworker, who was present during that conversation.

retaliation-against-doctors in CaliforniaIn Fitzemons v California Emergency Physicans Med. Group 205 Cal.App. 4th 1423 (2012), the Appellate Court held that the anti-retaliation provisions of FEHA (Fair Employment and Housing Act) protect not only employees but also partners in a business partnership. In that case, the plaintiff was an emergency physician and a member of a partnership. At one point the plaintiff was promoted to the regional director position. She was terminated and removed from partnership shortly after she reported to her supervisors that certain officers and agents of the partnership were sexually harassing some of the female employees.

The Defendants attempted to dismiss the case by arguing that only employees and not partners are protected from retaliation. The Appellate Court disagreed, noting that FEHA makes it unlawful to retaliate against “any person” for opposing unlawful workplace harassment. This anti-retaliation protections extends to partners as well as employees, unlike many other labor law protections which only apply to employees.

This decision is a powerful holding, as it arguably extends the anti-retaliation protections of FEHA anti-retaliation provisions to contractors and  temporary workers as well, if the courts continue to interpret the “any person” language of the FEHA statute literally and broadly.

Retaliation claims are some of the most common employment law cases filed in California, and usually in conjunction with a wrongful termination claim. It is important for any potential plaintiff in a wrongful termination case to consider whether he can also include a retaliation claim because retaliation is often easier to establish or prove than discrimination and other types of violations. This is because under certain circumstances, a retaliation claim may be brought by an employee who has engaged in a protected activity of complaining or opposing unlawful discrimination or harassment, even when a court or jury subsequently determines that the conduct was actually not unlawful (Flait v North American Watch Corp). Under the law, an employee is protected against retaliation if the employee reasonably and in good faith believed that he whatever he was opposing constituted unlawful employer conduct.

For instance, the court in Drinkwater v Union Carbide Corp. held that even though the employee was not able to establish a hostile work environment claim based on a few isolated incidents, she was able to make a retaliation claim, because she reasonably and in good faith believed that the harassers highly offensive sexual remarks constituted harassment when she made a protected complaint about the same to her higher management.

This is actually a very common workplace scenario. Imagine that you complain to your human resources department about feeling harassed or discriminated by your immediate supervisor. Your hr office conducts an investigation and they determine that not discrimination or harassment took place. Subsequently, your supervisor-harasser retaliated against you by writing you up and firing you. You bring several claims in court for 1. wrongful termination; 2. discrimination; 3. retaliation.

One of the more common wrongful termination scenarios that Kaiser employees seem to face is retaliation for complaining about patient safety or other violations of safety and patient care. It’s easy for management to retaliate against registered nurses or nursing assistants, and it’s as easy as finding minor job related mistakes, such as charting errors that have no actual significance, in order to set the employee who complained about an unsafe practice for termination.

If you feel you are being targeted and retaliated against, you might not be able to save your job, unless you manage to transfer to work under a different management as soon as possible and before your are terminated. However, there are a few things you can do to make your future claim stronger, in case you choose to pursue a retaliation and/or wrongful termination case against your employer:

1. Keep track of all the important documents, e-mails, and your own chronology of any events that would suggest that your employer was unhappy about your complaints or other protected activities, and was trying to set you up for failure and for being fired.

It is well established that a retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited by FEHA. Strong policy considerations support this rule. Employees often are legally unsophisticated and will not be in a position to make an informed judgment as to whether a particular practice or conduct by their employer or a manager actually violates the anti-discrimination laws. A rule that permits an employer to retaliate against an employee with impunity whenever the employee’s reasonable belief turns out to be incorrect would significantly deter employees from opposing conduct they believe to be discriminatory.

Moreover, a mistake of either fact or law may establish an employee’s good faith but mistaken belief that he or she is opposing conduct prohibited by FEHA.

To have a claim for retaliation, an employee does not necessarily have to be terminated. Creation of tolerance of hostile work environment for an employee in retaliation for the employee’s complaining about prohibited conduct is an adverse employment action within the meaning of California Gov. Code section 12940(h). Moreover, an employer’s alleged retaliatory responses may be considered collectively to determine whether the employee was subjected to an adverse employment action under the same section. However, mere ostracism in the workplace is insufficient to establish an adverse employment decision. Brooks v City of San Mateo (9th Cir. 2000) 229 F.3d 917, 929.