What is a retaliation claim and why are they so popular?

According to the U.S. Equal Employment Opportunity Commission (EEOC), in 2012, 38 percent of all EEOC claims were for retaliation.

The reason retaliation claims have become so popular in recent years is because case law and legislative developments have:

Broadened the field of people protected against retaliation
Relaxed the burden for establishing retaliation
Expanded the damages available to a plaintiff in such a claim

Further, retaliation claims have a much higher success rate than discrimination claims.
The basics of a retaliation claim
In essence, a retaliation claim is that the employer ‘took revenge’ or retaliated for an action the employee took that was legally within the scope of employment law.

For an employee to establish an unlawful retaliation claim, he or she must show that:

They took part in a protected activity (such as file a claim)
Their employer took an unfavorable action against them
There was a connection between the protected activity and the unfavorable employer action.

For an employee to establish protected activity they must show the participation in the activity was protected by employment law such as:

  • Filing a claim
  • Testifying
  • Assisting/taking part in an investigation
  • Opposing an unlawful employment practice

The Supreme Court and Congress have broadened coverage and damages
A number of U.S. Supreme Court rulings have expanded anti-retaliation protection to cover things such as:

Broadening the term “employee” to include former employees
Allowing oral complaints to have a comparable weight as filed complaints
The “scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm”

Further, legislation passed by Congress has expanded the range of damages and expanded anti-retaliation protections, including compensatory and punitive damages and protections for a wider range of individuals.
Retaliation is easier to believe than discrimination
The other side of this coin is that it is generally easier to believe that a person could retaliate against an accusation of wrongdoing rather than just blindly discriminate against someone because of their race, religion or age. Individuals who are tasked with fact finding are after all human beings and often make a connection between an accusation and a reaction of retaliation. And chances are, plaintiffs in retaliation claims are on counting on that.
Retaliation claims require an experienced NY business litigation attorney to navigate
A retaliation claim can be tricky for a variety of reason but maybe moreso because of that intangible human factor. People generally believe that others seek revenge and often have personal experiences of such occurrences. This alone can make a juror sympathetic toward a plaintiff. If you face a retaliation claim you should speak to an experienced NY business litigation attorney immediately. A skillful attorney can help you determine the legal remedies available in your situation.

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Steps you can take when a former employee threatens to sue

Author: Stephen D. Hans

In recent years, thousands of companies have felt the impact of a slumped economy, increased costs and regulations.  These conditions have forced employers to cut costs, reduce hours and downsize staffs.  Consequently, employee lawsuits and job discrimination charges have risen.  In fact, the U.S. Equal Employment Opportunity Commission (EEOC) reported that in both 2010 and 2011, there were a 100,000 workplace discrimination complaints filed.

After all the time and energy you have put into your business, it can be very stressful to receive notice that you are being sued by a former employee.  It is easy to imagine all of your blood, sweat and tears circling the drain and leaving you with nothing.  However, rather than panicking, you should take the following steps:

What to do:

  • Weigh your options calmly and determine the possible damages if the suit/complaint is decided in your employee’s favor.
  • Keep and maintain all records and other evidence that may relate to the case
  • Have you IT Department maintain all electronic records so that they are ready if a case proceeds
  • Consult your insurance policy for clauses that cover legal costs
  • Talk to your broker about any special riders to your policy that may help defray legal costs
  • Review your supplier and manufacturer contracts to determine if you are indemnified against legal liability.

What not to do:

  • Do not panic and assume all is lost
  • Do not destroy records or any documentation that may be considered evidence
  • Do not discuss the case with anyone who is not directly involved or with anyone who may be potentially a witness, except as advised by your attorney
  • Do not contact your former employee about his or her claim
  • Do not call your former employee to try to settle the case yourself
  • Do not contact your former employee to tell them off or to vent about feelings of betrayal

Discuss employee claims with an experienced NY business litigation attorney
The fact is that just being named in a suit or complaint does not mean you will lose your company or that you will even end up in court.  Plaintiffs often name several defendants in an attempt to hit all the bases.  Your company may only be named because if it is in a related field or thought to be involved.  If so, your attorney may be able to get your company dismissed from the suit.  Employee disputes and claims can be nerve-wracking but a NY business litigation attorney can help you determine the best strategy to take in your situation.
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National Labor Relations Board finds employee’s Facebook posts not protected

Author: Stephen D. Hans & Associates

A National Labor Relations Board (NLRB) administrative law judge (ALJ) surprised many when he found in favor of the employer in an unfair labor practice complaint.

On October 19, 2012, an unfair labor practice charge was filed against the Richmond District Neighborhood Center that offers after-school programs for high-school students in San Francisco.  The NLRB alleged that the center had terminated two employees because they engaged in “concerted activity” protected by the NLRA.  An employer is prohibited from preventing employees from engaging in such activity or in taking disciplinary action against them for doing so.  The NLRB categorizes “concerted activity” as activity that is “engaged in, with or on the authority of other employees, and not solely by and on behalf of the employee himself.” This may cover a wide range of discussions among employees about their workplace, workplace conditions, and complaints.

The NLRB contended that the concerted activity began in May 2012 when the employees voiced criticisms about the center during a staff meeting and subsequent Facebook conversations that took place later and continued the criticism. This included the employees discussing:

-How they were going to mess things up at the center
-That they would be uncooperative with the staff
-That they would allow the students to draw graffiti on the walls, go on trips, and have parties.

And while the ALJ agreed that the Facebook comments were concerted activity during which the employees complained about the office staff, feelings of not being appreciated, and a demotion, the judge ruled that the concerted activity was not protected. In explanation, the ALJ said that the conduct, “is so egregious as to take it outside the protection of the Act, or of such a character as to render the employee unfit for further service.”  Citing that the Facebook comments put the center’s ability to provide for the safety of students, as well as its ability to raise funding for its programs through grants and private donations, at risk.

For help with social media policy talk to a NY employment defense law attorney

There is no question that social media is here to stay and that it will be a venue used by employees to discuss workplace conditions. And this recent decision shows that employee conduct can be subject to disciplinary action and may not in all cases be protected by federal law.  However, employers need to be cautious when approaching the subject of social media exchanges between employees.  If you do not have social media and other employee policies in place, your business may be at risk.  To discuss your employee policies or any other employee matter, contact a NY employment law attorney today.  An experienced attorney can help you formulate and adopt policies that can reduce your liability and complies with federal and state laws.

 

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District Court rules that restaurant firing was a recipe for disaster

A federal district court has ruled that Wisconsin restaurant Sparx must pay back pay and interest to a former employee

who was fired in retaliation for complaining about a racist display in the workplace.  The restaurant is on the hook for more than $56,000 and its owner and other managers were ordered to participate in anti-discrimination training.

The former employee, Dion Miller claimed that he was fired because he complained about an offensive display in the restaurant—which included a dollar bill with a noose around George Washington’s neck, drawings of a man on horseback and a hooded figure with “KKK” written on his hood.  Within three weeks of lodging the complaint, Mr. Miller, who was a cook, was fired.

In September 2013 the jury found in favor of the plaintiff, and awarded $15,000 in damages for emotional distress to Mr. Miller.

Subsequently, Judge Barbara B. Crabb rejected a motion from Sparx to set aside the verdict, and awarded Mr. Miller back pay and interest of more than $41,000.  The court also entered a three-year injunction, enjoining the defendants from:

-Retaliatory firings for complaints about racially offensive postings in the workplace
-Failing to adopt policies that explicitly prohibit unlawful actions under Title VII
-Failing to adopt an investigative process for discrimination claims
-Failing to provide annual training to employees regarding Title VII

Protect your company by adopting firm anti-discrimination policies

To avoid liability for discrimination claims from employees, you must adopt firm anti-discrimination policies that comply with state and federal law.  Your policies should be clearly written and provided to all employees.  You must also have a complaint process in place and ensure that everyone from management to entry level employees knows, understand and can use the process without fear of reprisal.  Annual or bi-annual anti-discrimination training is also highly recommended to ensure your whole team knows, understands, and adheres to such policies.

Avoid discrimination lawsuits,talk to a NY employment law defense  attorney

If an employee has filed a discrimination complaint against you with the EEOC, you need to speak with an experienced attorney immediately.  An experienced attorney can explain your legal options and the best way to proceed.  To discuss discrimination or any other employee disputes contact a NY employment defense law attorney  today.   


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Protect your company from discrimination complaints and lawsuits

The U.S. Equal Employment Opportunity Commission (EEOC) reported it obtained a record $372.1 million in monetary relief for victims of private sector employment discrimination in year ending 2013.  This amount is nearly seven million more than was recovered in 2012 and is the highest amount of financial compensation ever recovered in the agency’s history.

The EEOC is the federal agency that enforces federal laws prohibiting employment discrimination, and obtains monetary and non-monetary compensation for individuals who have been discriminated against by employers through:

•    Administrative enforcement
•    Settlements
•    Conciliations (alternative dispute resolution)
What this means for employers
While according to its report, the EEOC received 14,000 fewer filings the fact that they recovered the record amounts this past year may not bode well for employers.  In our politically correct society, discrimination can be construed by what most people may consider minor incidents.  And unfortunately, with each passing day more regulations, laws and rules are passed that make ordinary behavior something sinister or questionable.  More than ever, employers must remain ever vigilant in their awareness of and compliance to the new rules.

In order to protect your company from unnecessary complaints you should:

•    Always give honest employee evaluations.  Employees with the responsibility of providing evaluations must do so honestly and resist the urge to ‘be nice’ because they do not want to hurt someone’s feelings.  If a complaint should arise for poor work performance, the employee evaluations should back that statement up by showing that it was drawn from honest employee evaluations.

•    Provide anti-discrimination/harassment training.  Your anti-discrimination policies must be clearly written and disseminated to all employees.  And you must take e reasonable steps to ensure everyone from management to entry level employees know, understand and can use the complaint process.  Annual or bi-annual training on these matters can help achieve this end.

•    Do not allow retaliation.  When one employee complains about another it is natural for the accused employee to want to retaliate against the accuser.  You must not tolerate this for any reason.  Conduct a non-biased investigation and do everything possible to rectify the matter without letting it get out of hand with warring employees escalating the situation.

•    Be fair and consistent.  You will open your company up to scrutiny and liability if you treat one employee differently from another.  Your policies should treat all employees fairly and consistently.

Talk to an experienced NY employment law attorney about employee disputes
Running a business and keeping your staff happy and productive can be a formidable task.  However, it goes with the territory of having a successful business.  An experienced attorney can help you develop company policies that will help provide a safe and productive work environment for your employees and protect you from the risk of litigation.  For more information about how an employment law attorney can help you with employee disputes or any other business matter, contact us online today.

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Don’t make a target out of your company

Most people are familiar with the recent credit card fiasco that occurred with Target at the height of the Christmas retail season.  According to statements made on Target’s website, high-tech hackers installed malware (malicious software designed to harm computers and user data) in electronic payment machines used for credit card or other electronic purchases at Target stores.

In a prepared statement Target explained: “The malware was discovered on our point-of-sale systems in our U.S. stores on December 15.  At that time, we disabled the malicious code and immediately began notifying our card processors and the payment card networks.”

It is estimated that up to 40 million Target customers were affected and this incident is expected to result in losses of five million dollars nationwide.

The potential for harm to over 40 million consumers is exponential and includes the possibilities of:

•    Credit card information being sold on the black market
•    Drained bank accounts of consumer victims
•    Extensive illegal charges to credit accounts
•    New credit accounts opened with credit information
•    Obtaining other personal information from the victims which can be used for fraudulent purposes such as: immigration fraud, obtaining government benefits, obtaining driver’s licenses, and filing fraudulent tax returns.
•    Identity theft
The lawsuits are just beginning
A class action lawsuit has been filed by an Ohio woman against Target  after her credit card information was stolen and her bank account was drained.  The allegations made in the lawsuit include: negligence, violations of Ohio’s Consumer Sales Practices Act, and invasion of privacy.  So far, in addition to this lawsuit, at least 15 other class action lawsuits have been filed in Illinois, Massachusetts, Rhode Island, California, Oregon, Alabama, and Colorado.  And it is likely that before all is said and done many more lawsuits will be filed by other victims.
Companies need to act quickly and definitively
While it may be some time before we know the sequence of events and exactly what happened to cause such a security breach, Target is being criticized for not acting quickly enough.  And the fact that, once the company did learn of the breach it offered prepared statements and a 10 percent discount to affected customers probably did little to repair its damaged reputation and legal liability.  When disasters like this happen to a company it is imperative that they act quickly and definitively to:
•    Fix the problem
•    Inform its customers
•    Repair the damage that has been caused
•    Assess its legal liability
Avoid a legal disaster and talk to experienced NY business employment law attorney today
In a perfect world, a company would have policies and contingency plans in place that would predict and prevent such scenarios from happening.  However, often times business owners assume such things will never happen to them.  But disasters happen every day to businesses throughout the country.  To discuss your policies and contingency plans or any other business matter contact an experienced NY business litigation attorney today.

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Pennsylvania State Police Prevail in Racial Discrimination Case

Author: Stephen D. Hans

Recently, a racial discrimination case filed by former Pennsylvania state police corporal, Maurice Burton was thrown out.  The main allegation of the case was that Burton claimed he was penalized for his on-the-job interaction with a white female co-worker.

Burton, who is black and now a retired state police corporal, sued the state police over two years ago, claiming that, because of his race, his relationship with a co-worker was subjected to undue scrutiny from his superiors.  He also alleged that he was unjustly investigated after reporting a supervisor who made inappropriate sexual comments, was subjected to unwarranted discipline, and denied a promotion to sergeant, because he was black.

The state police argued that Burton’s on-the-job interaction with the woman was over the top because the two spent hours together on a daily basis which far exceeded the time required for work purposes.  An investigation spurred by Burton’s complaints about a supervisor also called into question whether the two had lied about not socializing outside the office, police claimed.

The judge sided with the state police.  In her 60-page ruling on the case, Judge Sylvia H. Rambo found that Burton had not provided sufficient proof for any of his discrimination claims.  She wrote that his failure to make sergeant was due to his own “mediocre” performance on tests for that rank, not because of his race and that his superiors “had a legitimate prerogative to curb his admitted excessive socialization in the workplace.”

Proving race discrimination
Just because an employee files a discrimination complaint or lawsuit against you, it is not a foregone conclusion that they will prevail.  In order for an employee to prove racial discrimination against your company, he or she must make a showing of a prima facie case, which has four parts:

•    The employee is in a protected class
•    The employee is qualified for a job or performing adequately
•    The employee was denied a job benefit, or subjected to a negative job action
•    The person who got the benefit was of a different race or the employer continued to search for other applicants

For instance, if the employee was denied a promotion and believes it was because he or she was black, the employee would have to prove that they were qualified, they did not get the promotion, and the person who got the promotion was not black.

You then, as the employer present your evidence showing that you had a legitimate, nondiscriminatory reason for your decision – such as a lack of skills, experience, licensing or training for the position.

The employee then still has the burden of proving that your explanation for your actions were insufficient or used as a way of covering your discrimination.  For instance, he or she may try to show that the person who got the promotion had less experience, knowledge, skills or other qualifications and/or that your company never promoted a person to that position who was of his or her ethnicity.

Get legal help for NY employee discrimination complaints
The good news is that employers are not doomed to lose racial discrimination cases automatically.  However, whenever such complaints are filed they should be taken seriously and handled appropriately.  And experienced NY employment law attorney can help you determine what evidence might exist to defend a discrimination case an offer advice on your best legal options.  To discuss an employee discrimination case or other employee disputes contact us online today.

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