Articles Posted in Retaliation

One of the challenging in proving the workplace retaliation claim against an employee is showing a nexus – a connection between the employee’s protected activity and the adverse employment action taken by the employer against the same employee. The employer will almost always deny retaliation and will always argue that the employee was terminated for reasons that have nothing to do with his disability or his complaints about discrimination/harassment. It is therefore crucial that the claimant has a solid evidence to establish that he complained and that those complaints were actually received by the employer.

This means that if you feel that you are subjected to discrimination and/or harassment, you complain to your supervisor or to the HR department in writing, so that later – the employer cannot deny the very fact that you actually complained. Whether it’s an e-mail, a handwritten note or a formal letter – written evidence of complaining about possibly unlawful conduct is much harder to refute than the “he said / she said” situations.

One of employers’ favorite ways of retaliating against employees or creating a paper trail for terminating a worker who complains about harassment or discrimination or who demands to have the opportunity to exercise his disability rights at workplace, is by engaging in a campaign of issuing negative performance reviews. This strategy is “effective” for at least two reasons. First, a review of an employee’s performance is an inherently subjective process, which makes it particularly challenging to prove that the review is tainted with pretext and discriminatory / retaliatory motive. After all, any manager or a supervisor can argue that he is entitled to his/her opinion and can find certain flaws in most employees’ performance. Secondly, series of negative reviews, especially if these evaluations are not substantiated, are likely to cause the reviewed worker to start feeling unappreciated, frustrated, and as a result lose motivation to work well and start having real performance issues. Arguing later what came first – the bad reviews or the bad performance – is an uphill battle for most employees.

So, what are some of the ways to prove that the negative performance reviews are not “real?”

The first and the most crucial step of attacking the veracity if performance evaluations is by tracing the total history of a worker’s performance. If, for instance, you have been working at a company for 10 years, complained about harassment six months ago, and your very first or one of the very first negative performance reviews was issued a month after your complaint, this is likely to be more than a coincidence. Another evidence of retaliation and discriminatory motive is a situation where several workers are engaging in the same misconduct, which is known to their manager, but only one of them is being disciplined and reprimanded.

It is not uncommon for an employer to unlawfully retaliate against an employee not through a single, major act, such as suspension, demotion or termination of employment, but through series of less obvious acts that tend to negatively affect the victim employee’s performance, motivation and cause him or her a significant amount of stress and other psychological problems, which also constitutes unlawful workplace retaliation.

The employer who is well aware of the liability imposed by law for unlawful retaliation at workplace realizes the danger of engaging in obvious retaliation such as terminating an employee. Thus, such an employer may try to punish an employee for opposing an unlawful conduct or exercising rights under Fair Employment and Housing Act or other statutory rights by interfering with that employee’s job performance through series of intimidating, obstructive actions such as giving unreasonably large amount of work or imposing impossible deadlines, issuing false bad reviews after the employee engaged in a protected activity, spreading false rumors about the employee that tend to tarnish his reputation at workplace, and otherwise make the employee life at workplace harder and more stressful, trying force him out.

The courts recognize the above tactics used by the employers and analyze retaliation claims in “totality of circumstances” considering the actions taken by the employer against an employee collectively, rather than deciding whether each individual actions alone constitutes retaliation. Wideman v. Wal-Mart Stores, Inc. (11th Cir. 1998). A court should look at the context and totality of employer’s conduct because “otherwise minor slights, relentlessly compounded may become sufficiently ‘adverse’ to warrant relief under the statute. Simas v. First Citizens Federal Credit Union (1st Cir. 1999).

California Labor Department statistics suggests that workplace retaliation claims are on the rise more than other employment related claims, such as discrimination and harassment and hostile work environment related lawsuits. This is not surprising as I believe that besides the common reasons for these violations, such as lack of knowledge of the law on the side of employers and managers, there is a deeper, fundamental cause of retaliation claims, rooted deeply in human nature. Most humans have a predisposition toward being at least somewhat vindictive. When someone intentionally hurts us, we have a natural desire to both defend ourselves and hurt the attacker back. Such dynamics are especially strong in an environment where people, besides dealing with each other, are faced with conscious or subconscious fear of losing their source of income and livelihood, such as workplace.

Thus, when an employee complains about the manager, whether it’s a justifiable grievance or not, the supervisory employee will feel both angry and threatened. Unless the manager is well educated in the workplace retaliation laws and can consciously resist targeting the complainant or unless the company has adequate mechanisms that address retaliation and protect the employee who complains and/or “blows the whistle,” some form of retaliation is almost certain to happen. That retaliation can be obvious and blunt, such as demoting, suspending or transferring an employee to a less desirable position or workplace, or it can be more subtle, such as creating a paper trail of made up bad performance reviews and picking on employee for every insignificant reason.

Regardless of the cause and the degree of retaliation, it almost never simply goes away. On the contrary, the employee who is being retaliated against will likely be subjected to a greater retaliation with time if he is not taking action, unless the issue is address with the human resources department or higher up in the company, or through legal representation.

Two critical aspects of proving (discriminatory) workplace retaliation for filing a workers compensation claim or engaging in other protected activity are: (1) proving causal relationship between the filing of the the workers compensation claim (or engaging in other protected activity) and the discriminatory actions by the employer; and (2) proving tat the employee was qualified and able to perform his or her job at the time when discrimination took place.

Careful investigation of the facts and circumstances of the employee’s employment and wrongful termination is essential. Obviously, with respect to establishing the causal relationship, the closer in proximity of time the discriminatory conduct is to the employer’s learning of the employee’s filing a workers compensation claim, the more likely the causal link will seem to the judge, jury, or an arbitrator.

The first very important component of proving retaliation is in disproving a possible legitimate reason for termination, the most common of which is poor performance. Thus, in a case of alleged retaliation, like in most other discrimination claims, an attorney should seek evidence such as the employee’s productivity and performance records, including all evaluations, commendations, promotions, raises, and any disciplinary measures.

A qualifying employee (who worked for his employer for 1,250 hours or more during the past year for a company with 50 or more employees within a 75 mile radius) invokes his CFRA / FMLA rights when she asks for leave for her own serious health condition or that of a family member, and need not mention CFRA or FMLA by name in order to be entitled to leave. The employer may grant the leave without ever requesting medical certification. However, if the employer requires such certification, it should do so either at the time that the employee gives notice of her need for leave or within two business days thereafter, or – if the leave of the employee was unforeseeable – within two business days after the employee’s leave starts. Cal. Gov. Code section 12945.2(j)(1), (k)(1).

Under CFRA, the certification is legally sufficient if it includes the dates on which the condition started, and the estimated time the employee will require the leave. Once an employee provides adequate certification of her serious health condition, the employer must grant the leave, unless it has “reason to doubt the validity of the certification.” The employer may request an employee to undergo a second or third opinion of his condition if and only if the employer has a reason to doubt the validity of the original certification provided by the employee. Employers are required to obtain the opinion of a second and third doctor before denying leave or terminating an employee because of doubts about the validity of certification.

If you believe that you suffered an adverse employment action or were wrongfully terminated in retaliation for exercising your rights under FMLA / CFRA, contact San Francisco employment lawyer Arkady Itkin to discuss your rights.

California statutes prohibiting retaliation bar termination of (or other adverse employment action against) employees asserting their legally protected rights, exercising political affiliations, opposing unlawful discrimination at workplace, or seeking statutory redress (such as investigation of discrimination, harassment, etc.)

To show retaliation under California Fair Employment and Housing Act (FEHA), an employee must show that (1) he or she engaged in protected activity under FEHA; (2) he or she suffered an adverse employment action (such as demotion, transfer, suspension, termination or other action by the employer that materially affects the terms, conditions, or privileges of employment, and/or would tend to discourage a reasonable employee from complaining about the unlawful conduct at workplace); and (3) there is a causal connection between the protected activity and the adverse employment action.

FEHA specifically prohibits an employer from retaliating against employee for opposing any unlawful discriminatory practice prohibited by FEHA, and filing a complaint, testifying, or assisting in any proceeding under FEHA.

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