How Broad Sweeping Can Retaliation Claims Be?

retaliationRetaliation, according to the EEOC (Equal Employment Opportunity Commission) must consist of three elements:

  • An employee’s participation in protected activity, which typically would be filing a discrimination or harassment complaint
  • An adverse action that the employer or manager takes against the employee
  • A causal connection between the protected activity and the adverse reaction

The protected activity can be a direct or indirect complaint. Whether the employee’s complaint is true or not, as long as the employee believed it was true and acted in good faith, any adverse employer action could be viewed by the EEOC as retaliation.


A Landmark Case that Changed the Scope of Retaliation Claims

In 2010, the U.S. Supreme Court heard a case that changed how courts view retaliation. According to the International Risk Management Institute (IRMI) in the case of Thompson v. North American Stainless, 2011 U.S. LEXIS 913, No. 09–291 (Jan. 24, 2011) the Supreme Court voted unanimously to reverse the district court’s decision, which had granted a summary judgment in favor of the employer.

Details of the Case

Miriam Regalado had filed a claim with the EEOC that alleged discrimination against her by supervisors based on gender. About three weeks after her employer had received notification from the EEOC about the claim, the company terminated her fiancé Eric Thompson (who later became her husband). Thompson then filed his own claim with the EEOC and alleged that retaliation based on his fiancé’s claim was the reason for his termination.

On appeal, the appellate court ruled that anti-retaliation protection only applied to individuals who have personally engaged in protective activity or made a charge or assisted in an investigation and not to a third party. Thompson had not personally engaged in any of those protected activities.

However, the Supreme Court ruled that Thompson had a standing to bring a lawsuit under Title VII of the Civil Rights Act. The Supreme Court decided that employer retaliation covered a broader scope of conduct, including action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Specifically, in this case, the worker might not have engaged in protected activity if she thought her fiancé would be fired.

Despite the defendant’s argument that extending claims to third parties could put employers at risk for having to defend themselves whenever firing a family member or close relation, the Court held its ground and set a new precedent in retaliation cases.

Get Legal Help to Deal with Your Employment Dispute

Stephen Hans & Associates offers seasoned legal representation to assist business owners with employment issues.



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Job Termination: What Should You Know?

Frequently Asked Questions About Job Termination

Deciding to fire or layoff an employee is often a tough decision. Sometimes employees have adverse reactions and retaliate if they believe the termination was unjust.

Here are some answers to common questions about termination provided by the New York Labor Law website:

Does New York State have “employment-at-will”?

New York is an employment-at-will state, which means if your employment contract has no restrictions against terminating an employee’s job, such as a union agreement, you can fire the employee for any reason and at any time. The employee can also resign without giving notice and suffer no legal repercussions. You can fire an employee for any reason or no reason at all.

However, you cannot fire an employee for reasons of discrimination based on the employee’s:

  • Race
  • Creed
  • National Origin
  • Age
  • Disability
  • Gender
  • Sexual Orientation
  • Marital Status

Doing so violates the New York State Division of Human Rights, which is a division of the NY government that can sue you for discrimination.

Other statues, § 201-d and § 215, of the NY State Labor Law also prohibit termination based on:

  • Political or recreational activities outside of work
  • Legal use of consumable products outside of work
  • Membership in a union
  • For complaints made to the employer, Commissioner of Labor or Commissioner’s representative about provisions that are covered in the NY Labor Law.

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What is your responsibility for giving terminated employees their last paycheck?

You must pay the employees’ paychecks by the regular payday for the last pay period that the employees worked. If employees request that the paycheck be mailed, the employer must mail it.

When you decide to lay off employees, must you give notice of termination?

In 2008, the NY legislature passed the New York State Worker Adjustment and Retraining Notification (WARN) Act, which requires the following:

Employers in the private sector who have 50 or more employees (part-time employees excluded) must provide at least 90 days notice before closing their business. This refers to shutting down a single site of employment that results in laying off 25 or more full-time employees during any 30-day period. Employers must send a WARN notice to employees, their representatives, the State Labor Department and local workforce investment partners.

If employers are doing a mass layoff (excluding part-time employees) but not closing down the business, they must still provide at least a 90 days notice about the layoff when the layoff affects 33 percent of the workforce (at least 25 workers) or 250 workers from a single employment site. Employers must send the WARN notice to employees, their representatives, the State Labor Department and local workforce investment partners.

Stephen Hans & Associates  provides decades of experience to business owners with employment related issues.



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Sexual Harassment in the Workplace: Correction

Once an investigation reveals that sexual harassment in the workplace has occurred, the next step is correction. Employers must take corrective measures so harassment stops and does not reoccur. This is also the next step for any type of workplace discrimination that is discovered.

Solution Problem Solving Share Ideas Concept

By following EEOC guidelines  for correction, employers can ensure the steps they take are effective.

What Correction for Harassment Is Suggested by the EEOC?

Disciplining the harasser is one form of correction and the correction should correspond to the severity of the harassment. Management should inform the complainant and harasser of the measures it will take to correct harassment. Employers walk a fine line because if they are too lenient and harassment reoccurs, then they could be found liable. On the other hand, if the discipline is too harsh, then they may be subject to claims of wrongful discharge.

If the harassment was a minor action and the harasser had no prior history of misconduct, then oral reprimand may be sufficient. In contrast, if the harassment was severe or persists, then job suspension or termination may be appropriate.

The employee who filed the complaint should not be adversely affected by the discipline. For example, deciding to separate the harasser and complainant by reassigning the complainant to a job or location that the complainant does not desire would be unfair and would penalize the complainant instead of the harasser.

Healing Diagnosis Treatment

What Are Some Examples of Correction Employers Can Take?

  • In dealing with the harasser, an employer could take actions, such as:
  • Oral or written warning or reprimand
  • Transfer or reassignment
  • Demotion
  • Wage reduction
  • Suspension
  • Discharge
  • Required training or counseling to ensure the harasser understands the violations
  • Monitoring of the harasser to ensure the harassment ends

What Are Some Examples of How to Correct the Effects Harassment Had on the Complainant?

Employers can ameliorate the effects on complainants by:

  • Restoring a leave taken because of the harassment
  • Eliminating negative evaluations in the complainant’s personnel file that resulted from harassment
  • Reinstatement
  • Having the harasser apologize
  • Monitoring the employee’s treatment to ensure no further harassment
  • Compensate the employee for losses

Get Legal Help to Deal with Sexual Harassment in the Workplace

It is wise for employers to seek legal advice immediately when dealing with sexual harassment or other discrimination issues. Stephen Hans & Associates offers seasoned legal guidance to assist employers with harassment issues.

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Sexual Harassment in the Workplace: Investigation

How Should You Conduct Harassment Investigations?

It is vital to conduct an investigation as soon as possible when an employer receives a complaint of sexual harassment (or any other type of discrimination harassment). Delays in investigating can be viewed as neglect and as a failure to take effective measures to prevent harassment in the workplace, which makes employers vulnerable to sexual harassment claims.

harassment Q & A

What Comprises an Effective Investigation?

The EEOC  recommends that employers incorporate the following into their investigations to ensure prompt and effective investigations:

Ensure the investigation is conducted immediately, thoroughly and with impartiality. Individuals who are alleged harassers should have no control, whether direct or indirect, over the investigation.

  • Those who should be interviewed during the investigation include:
  • The employee complaining about harassment
  • The alleged harasser(s)

Anyone with relevant information or who would be expected to have reasonable information about the harassment.

sexual harassment in the workplace, is the employer responsible

Ask the Complainant, Alleged Harassers and Witnesses Specific Questions

The following are some examples of specific questions that the EEOC suggests employers ask during a harassment investigation:

Questions for Complainant

  • Who, what, when, where, and how: Who committed the alleged harassment? What exactly occurred or was said? When did it occur and is it still ongoing? Where did it occur? How often did it occur? How did it affect you?
  • How did you react? What response did you make when the incident(s) occurred or afterwards?
  • How did the harassment affect you? Has your job been affected in any way?
  • Are there any persons who have relevant information? Was anyone present when the alleged harassment occurred? Did you tell anyone about it? Did anyone see you immediately after episodes of alleged harassment?
  • Did the person who harassed you harass anyone else? Do you know whether anyone complained about harassment by that person?
  • Are there any notes, physical evidence, or other documentation regarding the incident(s)?
  • How would you like to see the situation resolved?
  • Do you know of any other relevant information?

was there harassment

Questions for the Alleged Harasser

  • What is your response to the allegations?
  • If the harasser claims that the allegations are false, ask why the complainant might lie.
  • Are there any persons who have relevant information?
  • Are there any notes, physical evidence, or other documentation regarding the incident(s)?
  • Do you know of any other relevant information?

Questions for Witnesses

  • What did you see or hear? When did this occur? Describe the alleged harasser’s behavior toward the complainant and toward others in the workplace.
  • What did the complainant tell you? When did s/he tell you this?
  • Do you know of any other relevant information?
  • Are there other persons who have relevant information?

Stephen Hans & Associates has decades of experience assisting business owners with employment related issues.

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Judge Roy Moore and the Sexual Allegations He Faces

What could be more damning for a political career than allegations of sexual misconduct? In today’s media climate, sexual allegations are a powerful juggernaut to take down almost anyone’s political career. They are also a force to be reckoned with for company executives and other prominent figures.

Consequently, many companies and organizations are quick to cut ties with political figures or individuals in powerful positions who face credible sexual harassment allegations.

sexual harassment in the workplace

Details About the Sexual Allegations Brought Against Judge Moore

Recent allegations about Judge Moore indicate that back in the 1970s and early 1980s when he held the position of Assistant District Attorney, he was involved in sexual misconduct with young girls and one that was underage.

The Washington Post conducted an investigation and interviewed four women about alleged sexual misconduct on Moore’s part and posted its findings on November 9. At first, all the women were reluctant to discuss the matter. They did not know each other, but at the time of the alleged incidents they were between the ages of 14 and 18 and Moore was in his 30s.

Repercussions from the Media Exposure

According to a Fox News report, multiple republicans have requested that Moore step down from the December special election in Alabama, and the National Republic Senatorial Committee cut its fundraising ties with Moore.

White House press secretary Sarah Huckabee Sanders conveyed that the president does not plan to make an in-person appearance to support Moore. In addition, Vice President Pence indicated the allegations were disturbing and if true, it would disqualify anyone from serving in office.

Senator Mitch McConnell has stated he believes the allegations were true and asked Moore to step aside. Senator Cory Gardner has agreed and taken a further step by encouraging the Senate to “vote to expel” Moore if he wins the election. Another Senator who previously backed Moore, Senator Mike Lee of Utah has also withdrawn his endorsement.

Prevent Allegations of Sexual Harassment from Arising in Your Business

Employers dealing with harassment or discrimination issues should seek legal advice immediately. Stephen Hans & Associates  brings decades of experience to help business owners deal with sexual harassment and other discrimination issues.

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Matt Lauer: One Sexual Harassment Complaint Led to More

As more women are coming forward to claim sexual harassment, other women are also gaining the courage to come forward. This is the current trend in a variety of sexual harassment cases that are hitting the media. Such appears to be the case in the recent reports about Matt Lauer, long time anchor and host of the “Today” show.

Sex Harassment

Details About the Matt Lauer Sexual Harassment and His Job Termination

According to Fox News, NBC met with Lauer, an alleged victim and her lawyer to confront Lauer about his inappropriate sexual behavior. Since the news broke, it became apparent there was more than one isolated incident. NBC quickly fired Matt Lauer and stated it was the first time they had heard about the sexual harassment allegations.

People magazine reports that eight women have now come forward regarding inappropriate sexual behavior on Matt Lauer’s part.

Lauer has issued a public apology for his actions and for the people he has harmed, and said that although not all aspects of the allegations were true and some he felt were mischaracterized, there was enough truth in them for him to apologize and feel regret and shame. He said his full time job is now to do what he can to repair the damage he has done.

Actions that Make Lauer’s Instance Stand Apart from Other Recent Claims

NBC News acted quickly on the allegations after discovering them. Matt Lauer did not deny that he engaged in sexual misconduct, but instead expressed his regret and indicated he would take action to repair the damage.

As a business, what is the best approach to take when allegations of sexual harassment arise? If you face sexual harassment issues, seek legal counsel as soon as possible and discuss your concerns so you can weigh your options.

Stephen Hans & Associates has decades of experience assisting business owners with employment related issues.

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What Are New York Laws on Tip Pooling?

One class action lawsuit after another has brought tip pooling into the legal limelight. The National Restaurant Association (NRA) has even filed a petition against the U.S. Department of Labor that alleges the courts have given the DOL authority in tip pooling matters that exceeds the scope Congress intended.

The Ninth Circuit and Fourth Circuit federal courts are divided in rendered decisions regarding tip pooling, and in addition, differing laws also exist at the state levels. For nationwide chains, the lack of consensus is particularly confusing and burdensome.

Despite the confusion, if you are a New York restaurant owner, it behooves you to understand and comply with NY laws on tip pooling.

New York Tip Credit Laws

Under NY law, employers can take tip credits, which means employers can count the employee’s tips toward minimum wages. If the tipped employee does not make enough in tips to equal the minimum wage, the employer must make up the difference, and the “credit” is the amount of wage the employer does not have to pay because it is covered in tips.

In New York, the tip credit varies based on the industry and is different for restaurants and hospitality industries, such as hotels and other lodgings. If an employee’s job involves both tipped services and non-tipped work, New York law requires that the employer not claim a tip credit for the entire day if the employer works two hours per day or more than 20 percent of the shift doing non-tipped work. The employer must pay the employee the full NY State minimum wage, including for the hours the employee was earning tips.

New York Tip Pooling Laws

In New York, employees subject to tip pooling can chip in their share of tips, and the employer divides the tips among the employees whose jobs principally provide services that customers tip, such as serving, busing tables, running food to tables and hosting. Employers cannot keep any part of the pool or tip sharing and must distribute the money to the employees.

In New York, if the customer leaves a tip on a credit card, the employer may deduct a percentage of the tip amount to cover the credit card fee. An example would be to deduct three percent of the tip amount if the credit card company charges a three percent credit card fee.

(For further information see Nolo: New York Law for Tipped Employees )

Representing Employers Tip Related Litigation

Stephen Hans & Associates has assisted employers for more than two decades with employment issues, including lawsuits involving tipping credits and tipping pools.

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