Retaliation by Compensation—Battleground for Comp Managers

“Retaliation lawsuits are among the easiest to prevent,” says attorney Jody Katz Pritikin, but retaliation is a common reaction by managers who are embarrassed or angered by an employee complaint, and that means managers have to be on the watch for it.

Pritikin, who offered her tips at SHRM’s Employment Law and Legislative Conference, held recently in Washington, DC., is founder of Proactive Lawsuit Prevention.

Pritikin emphasized the new rule of retaliation that prohibits employers from taking adverse action against spouses or others in the “zone of interest” of the employee who performed the protected act.

What is Retaliation?

There are three prongs of proof in showing retaliation, Pritikin says:

• The employee engaged in a protected activity (like filing a wage/hour complaint or a discrimination claim)
• The employee experienced an adverse employment action (like a reduction in salary or a termination)
• There is a causal connection between the protected activity and the adverse action.

Although the causal connection is sometimes shown by a “smoking gun” email or other clear evidence, most often, it’s a question of timing. The closer in time that the adverse employment action is to the protected activity, the more likely that “causal connection” will be found.

To defeat this presumption, have documentation that the true reason for the adverse employment action was a legitimate, non-discriminatory reason, says Pritikin.

The various statutes have somewhat different rules around retaliation, so in each case, says Pritikin, you have to find out what the specific rule is. For example, Title VII of the Civil Rights Act Section 704(a) says:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants … because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

What is Protected Activity?

Protected activity, says Pritikin, can include:

• Complaints around fair pay and leaves (FLSA, EPA, ERISA, state statutes)
• Complaints of discrimination or harassment (Title VII, ADA, ADEA, GINA, USERRA, state statutes)
• Health and safety violations (OSHA and state equivalents, Workers’ Comp, HIPAA
• Whistleblowing (Sarbanes Oxley, Dodd Frank Act, state whistleblower acts)
• Reporting false claims to the government (False Claims Act and state statutes)
• Concerted activity (LMRA, NLRA; includes union and nonunion employers)
• Actions covered by other state statutes and city ordinances.

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What Is Retaliatory Conduct?

A wide variety of conduct may be considered retaliatory, says Pritikin, including:

• Changing pay
• Changing workload
• Changing shifts
• Refusing reasonable requests
• Demoting
• Transferring
• Singling out
• Withholding opportunities for advancement
• Ignoring or ostracizing, leaving out of formal or informal meetings
• Threatening
• Issuing verbal or written warnings
• Suspending
• Punishing an employee
• Punishing the complaining person’s family or close friends
• Terminating
• Giving negative references

What Isn’t Retaliation?

Pritikin points out that in the following circumstances, there generally isn’t a basis for a retaliation claim:

• The employee did not act in good faith when making the complaint or engaging in opposition
• The adverse employment action was not a material action that would deter an employee from engaging in or supporting a protected activity
• The person who made the decision to impose the adverse employment action did not know that the employee engaged in a protected activity.

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The Primary Court Cases

Pritikin points to four court cases that help employers gain an understanding of retaliation:

• Burlington Northern and Santa Fe Railway Co. v White (2006). This case established the broad view of what constitutes “adverse action,” including conduct that dissuades a worker from making or supporting a claim.
• Crawford v. Metropolitan Govt. of Nashville (2009). This case established that a witness who participated in an internal investigation engaged in a “protected activity.”
• Kasten v. Saint-Gobain (2011). This case established that a verbal complaint about time clock placement was sufficient “opposition” for FLSA retaliation claims.
• Thompson v. North American Stainless LP (2011). This case showed that Thompson had 3rd party standing to sue when his fiancée engaged in a protected activity and the adverse consequence was Thompson’s termination. This case also established the concept of “zone of interest,” giving the vague guideline that “firing a close family member” would almost always meet the standard, while “inflicting a milder reprisal on a mere acquaintance would not.

In tomorrow’s Advisor, the rest of Pritikin’s tips, plus an introduction to a unique 10-minutes-at-a-time training system.