Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.
Showing posts with label retaliation. Show all posts
Showing posts with label retaliation. Show all posts

Friday, December 13, 2013

Can My Employer Trash Me In References? 6 things you need to know about job references

Suzanne Lucas, better known as the Evil HR Lady (she's very nice and not evil at all), did an interesting article about what employers are saying about former employees in references. Hint: It's not good.

Lucas says this: "Reference-checking firm Allison & Taylor estimates that 50 percent of their reference checks come back negative or lukewarm." If you want to chill your blood, read the article for some actual things employers have said about employees.

In my AOL Jobs column, I answer a reader question about whether or not employers can trash employees in job references. You can read it here.

I'm totally slammed at work, so that's it for now. Please don't forget that the ABA Blawg 100 is asking for your votes for your favorite blog in the Labor and Employment category. If you think this blog is worthy, I continue to need your vote. Go to the ABA website here. It takes about 30 seconds to register. Then go to the Labor & Employment category. Find Screw You Guys, I'm Going Home. Look to the left and you'll see a button that says, "Vote Now." Click it. You're done. The polls shut down at close of business Dec. 20. If you have trouble voting or questions about anything else, please see the ABA's Blawg 100 FAQ.

Friday, October 18, 2013

HR Says They Lost My Resume But I Think It's Age Discrimination

This was a question on my post I Reported Harassment and Now HR Wants to Meet With Me. What Do I Do?
I need some help here. I have worked for a company for 10 years. A position opened up and I applied for it. Soon after, the director said they are looking into it and a few days later a guy i trained who is younger than I am got hired. After that another position became available. I applied for it and was told they are looking into it and almost every day the director came to me and said they are looking into it. Also, HR says they never got my resume. Now mind you, this is the second time he told me HR never got my resume. I never received an email or call for this position. They kept saying.HR dropped the ball on this. I was told twice to apply to the position and.both times HR messed up. There are also 2 other guys in the same race class Ii am that got fired or moved for complaining and one of the guys filed a discrimination case against the director. Now they hired someone for the position I applied for that has no experience and I have to.train him. Is.there something I can do? 
 Roy P.
Roy, it sure sounds like you either have the most incompetent HR department around or someone is deliberately jerking you around.  I'd bet on the latter. If you are more qualified than the person who got the job, and the person hired is younger than you, then you may well have an age discrimination claim. I'd definitely suggest talking to an employment lawyer in your state about it.

Now, let's talk about some practical things you can do the next time you see a promotion you want to apply for. I'd suggest taking some steps to make sure your resume gets where it belongs:
  • Send your resume directly to HR: Don't hand it to your boss, who is probably chucking it in the garbage or sending it to HR via turtle. Instead, find out who is in charge of HR and email, fax or hand deliver it to them. 
  • Get proof: Make sure you send it in a way that provides proof they got it. If you fax, keep a copy of the transmission receipt. If you email, send it so you get a read receipt and a delivery receipt. If you hand-deliver it, write down the name of the person you handed it to, along with the date and time.
  • Send a copy to the boss: If the director is someone who is supposed to be doing the screening, then make sure he gets a copy, again with proof of delivery.
  • Follow up in writing: If you haven't heard anything in a week or so, follow up with a brief email asking them to confirm they received it.
  • Update your resume: It's possible your resume is outdated or doesn't reflect all your skills and training. Make sure it accurately reflects your qualifications.
If you think your boss is the one who is tossing your resume, then you might want to report him to HR in writing. Call it a "Formal Complaint of Age Discrimination" and tell them why you think you are the most qualified, how your boss claimed HR lost the resume and you couldn't be considered, and ask them to investigate.

It does sound like the company has a history of retaliation. If they retaliate against you, it might be time to contact an employment lawyer or EEOC.

Friday, July 12, 2013

Beware the Dark Side: "But For" Doesn't Mean "Sole Cause" In Retaliation Claims

The management-side bar celebrated when the Supreme Court ruled in University of Texas Southwestern Medical Center v. Nassar that Title VII retaliation claimants must prove that retaliation was not just a motivating factor, but the "but for" cause of the retaliation. While I'm all for a good celebration, I wouldn't break out the champagne yet if I were on the dark side. (Heaven forbid. As Luke Skywalker said, "Never. I'll never turn to the Dark Side.")

For any type of discrimination other than age, and now retaliation, employees must prove that discrimination was either a substantial or a motivating factor in whatever action the employer took against them. This leads to a tortured analysis the courts use in "mixed motive" cases, where the employer had more than one reason for their actions. If the employee proves discrimination was a substantial or motivating factor, the employer can show (not actually prove, mind you) a legitimate reason for their actions. Then the employee must prove (not just show) that the reason given was pretextual (phony, made up, a load of cr**), and that the real reason was discrimination. Then the employer gets to come back and prove it would have made the same decision even if it hadn't discriminated. Whew! That's a whole lot of confusion to explain to a jury, and I'm over-simplifying it. No wonder employers like it. But having a confusing standard wasn't enough for the dark side.

Instead, they pushed the courts to establish an even tougher standard. What the Supreme Court came up with in Nassar was the "but for" standard. That is, but for the discrimination, the employer wouldn't have fired, demoted, refused to hire, etc. The majority opinion refers to "but for" as a tougher standard. But is it really? The dark side will try to claim that it means "sole cause." It doesn't.

Chief Justice Roberts (along with 3 of his conservative compatriates) complained in 2011 in CSX Transportation, Inc. v. McBride that the jury instruction the majority approved was the "but for" standard. He says, "The test the Court would substitute—whether negligence played any part, even the slightest, in producing the injury—is no limit at all. It is simply 'but for' causation.' He describes this scenario to demonstrate what he believes "but for" causation is:
For instance, if I drop a piano from a window and it falls on a person, there is no question that I was negligent and could have foreseen that the piano would hit some­one—as, in fact, it did. The problem for the Court’s test arises when the negligence does not directly produce the injury to the plaintiff: I drop a piano; it cracks the side­walk; during sidewalk repairs weeks later a man barreling down the sidewalk on a bicycle hits a cone that repairmen have placed around their worksite, and is injured. Was I negligent in dropping the piano because I could have foreseen 'a mishap and injury?' Yes. Did my  negligence cause “[the] mishap and injury” that resulted? It depends on what is meant by cause. My negligence was a “but for” cause of the injury: If I had not dropped the piano, the bicyclist would not have crashed. 
(citations omitted). He goes on to explain why he thinks the Court should impose more than "but for" causation. Yet Justice Roberts and the other three dissenters in CSX agreed with the majority in imposing "but for" causation in retaliation claims.

The instruction the Court in CSX approved was this: "Defendant ‘caused or contributed to’ Plaintiff’s injury if Defendant’s negligence played a part—no matter how small—in bringing about the injury." The majority commented that the cases CSX cited were proven by more than the "mere 'but for' causation." They rejected the concern that juries might utilize "far out 'but for' scenarios."

Does this "but for" standard sound like something that an employment plaintiff will have a hard time proving? Not to me. Will the four dissenters in CSX agree that this instruction fulfills their "but for" standard in retaliation cases? I'd certainly argue this is the instruction now applicable to retaliation cases.

You don't have to believe me on this. Courts interpreting "but for" in discrimination cases have said this about the standard:

  • “[T]he plaintiff's age must have 'actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome.'"
  • Statutory language “merely imposes a ‘but for’ liability standard” requiring showing only that the protected classification was “a determinative, rather than the sole, decision making factor.” 
  • “But-for” causation is defined as “a factor that made a difference in the outcome.” 
Let's look at how this should apply in a real retaliation case. Joe complains about being sexually harassed by a coworker. His supervisor wants to protect the coworker, so starts looking at Joe's work with a fine tooth comb. Joe is written up for picky things that his coworkers also do. He's fired for having 3 write-ups in a 90 day period. Sure, the picky violations are a "but for" cause. However, so is the retaliation. But for the supervisor's determination to retaliate, he wouldn't have started writing Joe up for these violations.

Here's another example. Jane complains about age discrimination. The company decides to get rid of her, so they audit all her recorded customer calls. They wouldn't normally have done the audit. They discover a call where she got terse with a customer and hung up. They fire her for violating standards of customer service. But for the age discrimination, she wouldn't have complained. But for the complaint, they wouldn't have done the audit. But for her violation, she wouldn't have been fired (or they'd have kept digging for something else). In my opinion, Jane wins on both the age and retaliation claims under the "but for" standard. She might not have won under the "mixed motive" standard. In this case, the Supreme Court may have done Jane a favor.

We'll have to see how this all plays out, but any defense lawyer who argues that "but for" means "sole cause" should be subject to sanctions for making a frivolous argument. I'd love to hear from any employee-side attorneys who manage to smack down such a silly argument. Does this mean that management-side won't try to push "sole cause?" No. Will the courts buy it? Stay tuned.I'll let you know if I hear of any cases on this one way or the other post-Nassar.

In the meantime, don't be afraid of the "but for" standard. Embrace it. As Yoda said, "Fear is the path to the Dark Side. Fear leads to anger, anger leads to hate, hate leads to suffering." Better yet, he said, "The fear of loss is a path to the Dark Side." So embrace the Force, and keep fighting the good fight.

Friday, November 16, 2012

Firing Employees Because Obama Was Elected May Be a Felony

I wrote before the election about a group of CEOs who, prompted by their candidate, sent a series of threats to employees that, if President Obama were reelected, they'd have no choice but to (pick one) a. shut down, b. do layoffs, or c. move to another country. I wondered the day after the election why there hadn't been a wave of corporate shutdowns. But one guy actually did what he threatened.

A guy named "David" called into a radio show and said he had laid off 22 of his "mostly Hispanic" employees as a result of the election. He complained they had worn Obama shirts to work. He said, "I explained that to them, and I said, ‘You do what you feel you need to do, but I’m just letting you know this as a warning that this is things I have to think of as a business owner.’”
Raw Story (http://s.tt/1sB4T)

He said he felt comfortable he'd complied with the law. I think he's wrong.

Nevada has election laws that prohibit voter threats and intimidation.

NRS 293.710  Intimidation of voters.

1.  It is unlawful for any person, in connection with any election, petition or registration of voters, whether acting himself or herself or through another person in his or her behalf, to:

(e) Discharge or change the place of employment of any employee with the intent to impede or prevent the free exercise of the franchise by such employee.

2.  A person who violates a provision of this section is guilty of a category E felony and shall be punished as provided in NRS 193.130.

This guy, like the rest of the CEOs who made threats, is clearly firing employees because he believes they voted for President Obama. He may have committed a felony under Nevada law as a result.

If he targeted only Hispanics in his hissy fit, he may also have violated Title VII.

I hope some of his employees find an employment lawyer (or a friendly prosecutor) to pursue this. So, David, how does it feel to have confessed to a crime on the air? I hope it turns out that you have plenty of time to enjoy some free accommodations on the taxpayers' dime.

Monday, November 7, 2011

Can My Boss Hold My FMLA Against Me?

I received this question from calistair:

I have MS, every 4th Friday I have to take off work for a treatment. I recently asked to take 2 hours of PTO on a Friday afternoon. My supervisor responded via email with "The remainder of the group has covered Fridays for you". When asked twice via email what she meant, she came to my desk and verbally stated "On the Fridays of your infusions" I said "Oh no, that's under FMLA". This is 2nd time she has used my FMLA time against me. The first time, we were discussing the department budget and she told me that my reduced work hours (32.5/week) was causing others to work OT, which in turn has caused our department to be over budget. What can I do?

Now, obviously the first thing I advise is to talk to an attorney in your state. I’ll give you some general information on FMLA, which will hopefully help point you in the right direction in the meantime.

Based on your question, it looks like you’re on intermittent leave. FMLA allows up to 12 weeks of total leave in a calendar year, so if you need every 4th Friday off you are using 13 days of FMLA, roughly 2 ½ weeks. You are certainly covered under the law for this, assuming the employer has at least 50 employees and you’ve been there at least a year. Some states also have medical leave laws which might provide more protection.

Here’s what an employer can and can’t do while you’re on FMLA leave:

PTO use: Your employer may require you to take paid leave concurrently with their unpaid FMLA leave. All forms of paid leave are treated the same. Paid leave taken concurrently with FMLA leave could include vacation time, paid personal leave, and paid sick and medical leave. The employer may waive any procedural requirements for the taking of paid leave and you are always entitled to their unpaid FMLA leave even if you do not meet the employer’s requirements for taking paid leave. If the employer is not making you use your PTO for the intermittent leave, you should be entitled to use it like anyone else.

Retaliation: The employer is not allowed to use your FMLA leave against you. They can’t write you up for poor attendance, ding you in performance evaluations for excessive absenteeism or for failing to perform while you were on leave, demote you or fire you for taking leave. However, if they discover performance issues or dishonesty while you’re on leave (say a coworker covering for you finds out you embezzled millions), then they can fire you or discipline you. If the supervisor is retaliating, you probably want to report this to HR, in writing, as a “Formal Complaint of FMLA Retaliation.”

These are the two parts of FMLA that seem to apply to your situation. Other things you might need to know about FMLA are:

Perfect attendance: Employers may deny you a perfect attendance award for taking FMLA leave if employees taking non-FMLA leave are treated the same.

Contact with health care provider: Your employer may communicate with your health care provider to get information required by the FMLA certification form. The employer’s designated representative to communicate with the health care provider must be a health care provider, human resource professional, leave administrator, or a management official, but cannot be the employee’s direct supervisor. Employers are prohibited from asking health care providers for information other than what is required by the certification form. If the employer determines that a medical certification is not complete or is insufficient, the employer must provide written notification to you of what information is lacking and give you seven calendar days to cure the issue. Employers may request a new medical certification each leave year for medical conditions that last longer than one year. Employers may request recertification of a continuing condition every six months.

Fitness for duty: An employer may require the certification to address your ability to perform the essential functions of your job. In the event that reasonable job safety concerns exist, an employer can require a fitness-for-duty certification before you may return to work when you take intermittent leave.

There are many more requirements and responsibilities under FMLA that may apply to you. These are some of the most common issues. I hope this helps. Good luck!

Friday, August 12, 2011

Boss Boinking Coworker, Playing Favorites? Too Bad, Say Courts

            Say you have a coworker, Don Dashing. He’s an idiot. A screw up. Yet he keeps getting promotions, the best leads, the best shifts. Your female boss, Dahlia Desperate, clearly plays favorites. You have your suspicions, and one day you walk in on Don and Dahlia doing the horizontal bop on Dahlia’s desk. Aha! you cry. Suspicion confirmed! You run to Human Resources and file a sexual harassment complaint.
            You tell them that Don got the promotion you were most qualified for. Dahlia never hit on you, but if she had, and you’d been the one lighting up Dahlia’s life, you’d have gotten the job. Sexual harassment. Clear and simple. If you’d had sex with Dahlia, you’d have the job.
            The HR lady looks concerned. She’ll investigate immediately. You’re fired the next day.
            Should you start shopping for beachfront property? Did you just win the lottery? Nope. You probably lose. Here’s why.
            Cases like this one are called sexual favoritism. The courts say that the boss can favor someone they’re having sex with. In most cases, sexual favoritism is perfectly legal.
            Ron Miller, of the Wolters Kluwer blog, recently posted about two new sexual favoritism cases. In one, Zimpher v. Aramark Management Services, our employee hero walked in on his boss’s afternoon delight with a coworker. He reported it and was fired. The court said that, because what happened wasn’t sexual harassment, when he reported it he wasn’t protected from retaliation. Why wasn’t it sexual harassment or sex discrimination? Because the conduct he reported wasn’t directed at him or his status as a man. (Had he filed with EEOC, he’d have been protected from retaliation, even though he’d have had no basis for filing the charge of discrimination, but that’s another ridiculous part of employment law I’ll save for another post).
            In the other recent case, a woman complained about a sexual relationship in the workplace and was also retaliated against. Too bad, said the court. Since the affair and favoritism affected everyone, no matter their sex, it wasn’t sexual harassment. Because it wasn’t sexual harassment, she wasn’t protected from retaliation.
            This isn’t to say that all sexual favoritism is legal. The EEOC has issued a Policy Guidance (that the Courts can ignore if they want to) saying when it thinks sexual favoritism crosses the line. To summarize:
o   Boss plays favorites with consensual lover: legal;
o   Boss plays favorites with lover who was bullied into the relationship in exchange for favoritism: may be sexual harassment for other employees of the same gender as the lover;
o   Favoritism based on sexual favors in the workplace is widespread: may be sexual harassment for other employees of both genders.
o   Isolated instances of sexual favoritism: legal.
But, you argue, treating women (or men) as sexual playthings is discrimination, isn’t it? It’s demeaning to their gender. If the women who boink their supervisors get promoted, doesn’t that send the message to other women that sex is the only way to get ahead in the workplace? Yep. I agree. So far, many courts don’t agree. I won’t get into the legalese on this, but I can direct you to an excellent law review article on the topic if you want more information. Basically, it comes down to what state you live in. For instance, if you’re in California then some sexual favoritism is illegal. In my home state, Florida, it probably is not.
Sexual harassment cases are getting harder and harder to win (again, I’ll save it for another post). If you report something you think is sexual harassment to HR and it turns out not to have been sexual harassment, the employer is allowed to retaliate. If you fail to report sexual harassment and go straight to EEOC instead, your employer has a complete defense to your sexual harassment lawsuit. Catch-22 personified.
There oughta be a law . . .

Tuesday, July 26, 2011

4 Times When You Should Complain About Your Boss

I usually recommend against complaining about your boss. It can be satisfying to complain, but complaining can get you fired. There's no First Amendment in the private workplace, and even government employees' free speech rights are limited. If you say your boss is incompetent or unprofessional, you aren't protected from retaliation.

Still, sometimes you really do have to report your boss to Human Resources or someone in management. Here are four times where you're legally protected from retaliation if you complain (no, I can't guarantee they won't retaliate anyhow, but you have some legal remedies if they do).

Read more on AOL Jobs . . .

Thanks again to Gina Misiroglu of Red Room for putting me in touch with the AOL people!

Wednesday, March 23, 2011

Supremes Pretty Consistently Oppose Retaliation

The Supreme Court isn’t exactly known for being pro-employee. But it has been fairly consistently pro-employee in one area: retaliation. Yesterday’s ruling in favor of an employee who complained verbally about a Fair Labor Standards Act (FLSA) violation is just one of a series of recent rulings that demonstrate employers need to beware of retaliating.
Oral complaints are protected: In yesterday’s Kasten v. Saint-Gobain Performance Plastics Corp, the Court found that the anti-retaliation provision of FLSA which applies to people who “file” complaints applies even where the “filing” was purely a verbal complaint.

Retaliation against a fiancé is illegal: Earlier this year, in Thompson v. North American Stainless, LP, the Court ruled that the fiancé of an employee who complained about sex discrimination could bring a retaliation claim when he was fired shortly after she complained. It’s, “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” Yeah. It was pretty obvious, wasn’t it?

You don’t have to be the one who complained to be protected: In 2009, in Crawford v. Metropolitan Government of Nashville, the Court decided an employee who was interviewed in a sexual harassment investigation was protected: “The antiretaliation provision’s protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation.” Gotta love this one since she won a $1.5 million verdict last year after the case went to trial. Oh, and because the majority opinion referred to the employer’s position as “freakish.” Well, not quite their whole position, but the word “freakish” was used.

Race discrimination statute prohibits retaliation: In 2008, the Court in CBOCS West, Inc. v. Humphries found that 42 U.S.C. § 1981(a post-Civil War race discrimination statute) prohibits retaliation.

Age discrimination statute prohibits retaliation: The same day in 2008, the Court in Gomez-Perez v. Potter, Postmaster General found that the Age Discrimination in Employment Act similarly prohibited retaliation against a federal employee.

Retaliation other than termination is illegal: In 2006, the court decided Burlington Northern v. White said: “We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.”

So while some other employment laws may be slowly eroding away in favor of employers, the anti-retaliation laws are alive and well. Does this mean employees can run to the courthouse at will now? No. Employees still need to be concerned about retaliation. You need to know your rights before you complain.

Donna’s tips:

a. There is still no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, ethical violations, bullying, or jerkish behavior. Only if you do something that puts you in a legally protected category are you protected from retaliation. That means objecting to something that’s illegal under a statute such as Family and Medical Leave Act, Title VII, state discrimination laws, wage/hour laws, OSHA violations, or some other legal violation.

b. If you’re thinking about bringing a claim under a whistleblower law, there are lots of hoops you have to jump through, so know your responsibilities and rights under the whistleblower laws before you complain.

c. I did a post about when you should think about reporting coworkers and how to do it. Despite yesterday’s ruling about oral complaints being protected, I still suggest you put your complaint (if it’s a legally-protected complaint) in writing so the employer can’t deny it later.

d. General harassment, hostile environment and bullying are not illegal, so you’re not protected from retaliation if you report them.

Thursday, February 17, 2011

Top Ten Employment Laws You Think Exist – That Don’t

Everyone tells me they know their employee rights. Some are even dumb enough to tell their employers they know their rights. The problem is, most of you are getting your legal information from courtroom TV shows or coworkers who know less than you do. Before you mouth off about your rights, here are some laws that most employees think exist - that don't.

Wrongful termination

If you live in Montana, your employer can only fire you for just cause. Otherwise, they can fire you for any reason or no reason at all. They don’t have to have a good reason. They don’t even have to give a reason in most states. Arizona has a law based on the Montana law, but they took the "just cause" (and some other pro-employee stuff)out of it.

Right to your file

No federal law requires private employers to allow employees to inspect or copy their own personnel files. Some states require employers to allow you to look at your file. Fewer allow you to copy items in your file. Many times, the only way you’ll find out what’s in your file is if you sue and you get it with a Request for Production, or if you subpoena it in unemployment or other proceedings.


No federal law requires employers to offer any work breaks for anything, even meals. Some state laws do require work breaks, but it’s not a majority. No law requires bathroom breaks, but it's probably a health issue, so OSHA might protect you if your employer denies bathroom breaks. If you're a nursing mother, you're entitled to an unpaid break to express breast milk if your employer is big enough. Some states also offer protection for nursing moms taking breaks.

Hostile environment/harassment

Hostile work environment is not illegal. Harassment is not illegal. Bullying is not illegal. Hostile work environment or harassment due to race, age, sex, religion, national origin, disability, color, taking Family and Medical Leave, whistleblowing, or some other legally-protected status is illegal.

Free speech

Only government employees have free speech protections, and those are very limited. You can be fired for your speech in the workplace or outside the workplace if you work for a private employer. You can't be fired for speaking on behalf of coworkers in order to improve work conditions or for objecting to something illegal, but be very careful to make sure you're protected before you speak out.


There is no law giving you privacy in your work emails or internet usage. If your employer is going to listen into or record phone calls, there are legal restrictions. You also have privacy rights in your medical information. There is no federal law protecting your social security number, but California and New York do offer limited protection against employers displaying your number.

Right to work

Right to work doesn’t mean your employer can’t make you sign a non-compete agreement or restrict your ability to work for competitors after you leave. What it means is they can’t make you join a union in order to work there. Some states, but not all, are right to work states. If your company tells you that signing a noncompete agreement is meaningless or that it won’t be enforced, they are lying to you.


There is no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, ethical violations, bullying, or jerkish behavior. Only if you do something that puts you in a legally protected category are you protected from retaliation. Examples would be objecting to discrimination, making a worker’s comp claim, or taking Family and Medical Leave.


Discriminating against you for being you is never illegal. Favoritism, nepotism, being a jerk, are not illegal. Discrimination based on age, race, sex, religion, national origin, disability, color and genetic information are illegal.

Individual liability

As much as it may give you joy to sue your boss personally, you probably can’t. Federal and many state discrimination laws, Family and Medical Leave Act (in some states - the courts disagree on this), and most other laws simply don’t allow it. The one exception is wage and hour violations. Some state discrimination laws do hold supervisors liable for violations. But what’s the point? Unless they’re rich, you probably won’t be able to collect anyhow.

Well that's wrong. What can I do about it?

Since most people think these laws exist, maybe it's time for them to actually be passed. Email your congressperson and state representative now and complain if you don't like the fact that you're not protected. Here are some places to find out how to contact your representative in Congress:



Here's a website with contact information for elected officials at the state and federal level:


Saturday, January 1, 2011

Retaliation Against Whistleblowers - When Are You Protected?

While it may be satisfying to complain about your boss, the truth is, complaining can and will get you fired. While most people think we have free speech in this country, there’s no First Amendment in the private workplace. If you work for government, you do have free speech rights, but they are limited. Sassing your boss or saying she’s incompetent is not protected speech.

If the company is violating the law – Medicare fraud, ripping off the government, failing to pay taxes, failing to pay wages, discriminating, polluting, etc., there are a host of whistleblower laws that may protect you. You need to find out which law protects you and make sure you complain in a way that’s protected. Some laws require you complain in writing to a supervisor. Some say you have to report the company to a government agency. Some only require that you object to or refuse to participate in the illegal activity. If you get it wrong, you aren’t protected from retaliation.

Think about these questions to see if you might be a whistleblower. These are just some examples of activities that might be protected.

1. Have you recently objected to any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation?

Under many whistleblower laws, but not all, your objection may have to be in writing. But an objection to a breach of the employer’s policies, or to an ethical violation, is generally not protected whistleblowing. While writing your long letter venting about every way the workplace is unprofessional may be satisfying, it can get you fired.

The objection most likely has to be to an activity, policy or practice of the employer. If you object to a coworker stealing from the company, it’s probably not protected. What would be protected is objection to failure to pay overtime, discrimination based on a protected category (race, age, sex, religion, national origin, marital status, disability, color and, in a couple of counties, sexual orientation), safety violations governed by OSHA, or almost any other legal violation. Statutes, government regulations, and county/city ordinances would fall in this category.

Even if the objection doesn’t need to be in writing, I suggest you put it in writing so the employer can’t deny you made the objection later.

2. Have you recently refused to participate in any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation?

If the employer asks you to do something actually illegal, whistleblower laws applying to your industry may say you can refuse and you are protected. But I still suggest you put your refusal in writing.

3. Have you recently disclosed, or threatened to disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation?

You may be protected if you have, in writing, brought the activity, policy, or practice to the attention of a supervisor or the employer and have given the employer a reasonable opportunity to correct the activity, policy, or practice. Examples would be making a formal written complaint of discrimination based on, say, sex. The formal complaint would say that, if the situation is not promptly resolved, you intend to file a charge of discrimination with EEOC. Then you could invoke this provision after giving them time to fix the situation.

4. Have you recently provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer?

If you give information to the police, unemployment, EEOC, OSHA, a legislative body, or other entity actually doing an investigation of an illegal practice, you may well be a protected whistleblower.

The Whistleblower Laws

The remedies, requirements, and administrative hoops are the subject of entire treatises, so I’ll just draw your attention to some of the major whistleblower laws.

The federal whistleblower laws are:

The OSHA –enforced laws govern protection of workers against retaliation for complaining to employers, unions or the Occupational Safety and Health Administration (OSHA), or other government agencies about unsafe or unhealthful conditions in the workplace, the environment, some public safety hazards, some securities fraud violations.

OSHA enforces these anti-retaliation laws:

Occupational Safety & Health Act (OSH Act), 29 USC § 660(c)
Surface Transportation Assistance Act (STAA), 49 USC § 31105
Asbestos Hazard Emergency Response Act (AHERA), 15 USC § 2651
International Safety Container Act (ISCA), 46 USC App. § 1506
Energy Reorganization Act of 1974 (ERA), 42 USC § 5851
Clean Air Act (CAA), 42 USC § 7622
Safe Drinking Water Act (SDWA), 42 USC § 300j-9(i)
Federal Water Pollution Control Act (FWPCA), 33 USC § 1367
Toxic Substances Control Act (TSCA), 15 USC § 2622
Solid Waste Disposal Act (SWDA), 42 USC § 6971
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 USC § 9610
Wendell H. Ford Aviation Investment and Reform Act (AIR21), 49 USC § 42121
Sarbanes-Oxley Act (SOX), 18 USC § 1514A
Pipeline Safety Improvement Act (PSIA), 49 USC § 60129
Federal Railroad Safety Act (FRSA), 49 USC § 20109
National Transit Systems Security Act (NTSSA), 6 U.S.C. §1142
Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. §2
Affordable Care Act (ACA), P.L. 111-148

Sarbanes-Oxley is the most famous OSHA-enforced whistleblower law. It protects employees of publicly-traded corporations from retaliation for reporting violations of SEC rules and federal laws regarding fraud against shareholders.

The Whistleblower Protection Act protects Federal employee whistleblowers.

Military Whistleblower Protection Act protects whistleblowers in the U.S. military

False Claims Act (FCA), which enables a private citizen to file a lawsuit in on behalf of the U.S. Government for fraud by contractors and other businesses that use federal funds. Qui Tam prohibits an employer from retaliating against an employee for attempting to report fraud against Medicare, Medicaid, FDA, GSA, HUD, USDA, U.S. Postal Service, NIH and the military, but not the IRS.

States that have whistleblower protection laws for most employees, government or private, are: Arizona, California, Connecticut, Delaware, Florida, Hawaii, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, Ohio, Oregon, Rhode Island, and Tennessee.*

States that offer whistleblower protection to government, but not private employees are: Alabama, Alaska, Colorado, Delaware, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Missouri, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Utah, West Virginia, Washington, and Wisconsin.*

*State laws change all the time, as do federal laws. Talk to a lawyer in your state or do your research to make sure you're jumping through all the right hoops to be protected.

Other Types Of Retaliation

Here are some examples of other types of complaints where the law protects you from retaliation.

Discrimination: If you are the victim of discrimination or harassment based upon your race, age, sex, religion, national origin, color, disability, genetic information, association with a person in one of these categories, or another category that’s protected in your state/county/city (e.g., marital status or sexual orientation that aren’t protected by federal law), then you have to follow your employer’s published discrimination/harassment policy and report it.

Wage/overtime violations: If you’re terminated for objecting to failure to pay wages owed or failure to pay overtime, you may be protected from retaliation under the Fair Labor Standards Act or your state’s wage/hour laws.

Collective action to improve working conditions: The National Labor Relations Act protects employees from being retaliated against if they get together to try to improve the terms and conditions of their employment. So those letters employees sometimes do to complain against unfair treatment or bullying are supposed to be protected. The only problem is that many employers and management-side lawyers think this only applies to unionized workplaces (they’re wrong) and so they usually don’t hesitate to retaliate. Awareness was raised recently because the NLRB went after a company when it disciplined an employee for posting negative comments about a supervisor on Facebook and other coworkers chimed in. We’ll see how this case shakes out and whether it’s ultimately deemed a protected collective action. In the meantime, I’d avoid saying your boss is a jerk on Facebook or Twitter. Your remedies under this law aren’t the easiest to get or the best, but it’s something to hang your hat on and wave in front of the boss if they start threatening retaliation.

Deadlines/Statutes of Limitations

If you’ve been retaliated against, you may have short deadlines for bringing your complaint, and there may be some requirements you have to meet before you can sue. Here are some examples.

Sarbanes-Oxley: You must file a complaint with the U.S. Department of Labor within 90 days of the date you found out about the whistleblower discrimination, harassment or retaliation.

Other whistleblower claims: Statutes of limitations can be as short as 30 days for some whistleblowers protected under federal laws (e.g., environmental whistleblowers). State whistleblower laws vary, so be sure you know your deadlines.

Qui tam: Within the later of 6 years from the date of the violation; or
3 years after the government (or sometimes you) knows or should have known about the violation, but never longer than 10 years after the violation.

Donna’s tips:

a. If you’re going to complain about legal wrongdoing or discrimination, I suggest putting it in writing even if the employer’s policy says to have a meeting. You can present the written document at the meeting. That way you have proof that you complained about something that’s protected. Otherwise, HR will almost always say you complained about general harassment or unfair treatment, which isn’t protected.

b. If you complain, keep it professional and to the point. Avoid complaining about personality conflicts or incompetence. Stick to the facts that prove what’s happening is illegal.

c. HR is entitled to investigate your complaint. That means even if they have a policy of keeping your complaint confidential, your boss, the person you’re complaining about, and your witnesses and other coworkers will probably find out about it. Be prepared for that to happen, and be ready to report retaliation.

d. If you are retaliated against for reporting something illegal, put your complaint of retaliation in writing. If the retaliation doesn’t stop, or if you get fired, disciplined, demoted, or a pay cut as a result, contact an employment attorney.

e. If, after you complain, the situation is not fixed, contact an employment attorney for advice. But they don’t have to fire anyone or take any specific action, so don’t threaten to quit if they don’t fire the perpetrator.

f. If you’re complaining about a boss or coworker embezzling, stealing, or doing something TO the company, as opposed to on behalf of the company, you’re probably not protected from retaliation. You’d be surprised how many people get fired for reporting someone ripping off the company. Silly, yes, but there you have it. Killing the messenger is alive and well.

Wednesday, October 13, 2010

Why Do I Need An Employment Lawyer? Do I have A Case?

In general, there is no such thing as wrongful termination/discipline in most states if you don’t have a contract saying you can only be fired for cause. So why on earth would you ever need an employment lawyer? How do you figure out if you have a case?

Why Do I Need An Employment Lawyer?

There are some times in your employment that you may definitely need an attorney. Here are some reasons you might need a lawyer.

Deadlines: Employment laws are a morass of confusing deadlines, prerequisites to filing suit, and requirements you might miss if you try to do it yourself. If you’re thinking about filing suit, you probably want to speak to a lawyer.

Confusing claims: There are some employment laws on the books that you might not know about, so you might have a case you don’t know about. And there are some laws you think exist, that don’t. If you think you might have claims, if your termination doesn’t feel right or you think something has happened that’s illegal, you might want to run it past a lawyer.

Being taken seriously: Some employers don’t take you seriously unless you have representation.

Uncomfortable in confrontations: If you’re trying to negotiate your own employment agreement or severance package, many people don’t feel comfortable being in a confrontational situation or advocating for themselves. Sometimes it’s better to have an advocate.

When you absolutely, positively need a lawyer

If any of these happen to you, you should contact a lawyer immediately:

Your employer or former lawyer sues or threatens to sue you;

You’re being asked to sign an agreement that you don’t fully understand, especially if it’s a noncompete, confidentiality, arbitration, or employment agreement;

You’ve been accused of a crime (contact a criminal defense lawyer, not an employment lawyer, immediately).

When you might want a lawyer

If you think your employer or former employer has broken employment laws;

If you have been retaliated against for complaining about discrimination or something illegal the employer has done;

If you’re not being paid all the wages you’re owed;

If you think you’re misclassified as exempt from overtime or as an independent contractor.

When you probably don’t need a lawyer

To make a written complaint of discrimination to the human resources department, as long as you follow the policy;

To attend a disciplinary meeting (take good notes, don’t sign anything except a form acknowledging receipt of the discipline, and sign “as to receipt only, rebuttal to follow);

To sign documents you understand, like applications, insurance forms, and tax documents.

To file a union grievance if you’re a union member (use your union rep – they’re free).

Do I Have A Case?

Here is a checklist to help you figure out if you might have a case against your employer. It’s not exhaustive, since every state has different laws, but this will give you a start.

Cases involving termination, demotion, or suspension without pay

If you answer yes to any of these questions, you may have potential claims. You’ll want to contact an employment lawyer in your state to find out if you have a case if any of these occurred shortly before your termination, demotion, suspension without pay or other discipline.

_____ Did you make a worker’s compensation claim shortly before being fired?

_____ Had you recently objected to, refused to participate in, or reported illegal activity or discrimination by the company? (as opposed to something unethical or a violation of company policy)

_____ Had you recently had surgery, revealed the existence of a medical condition, genetic information or pregnancy?

_____ Has the employer made a false statement of fact (as opposed to opinion) about you to someone outside the company, such as a potential employer?

_____ Had you recently performed jury duty?

_____ Had you recently served in the military?

_____ Had you recently taken family or medical leave?

_____ Had you recently served as a witness in a lawsuit or provided testimony or evidence to EEOC?

_____ Had you recently engaged in activity for the benefit of co-workers with respect to terms and conditions of employment?

_____ Did your employer fail to pay you for all hours worked, or fail to pay overtime if you worked over 40 hours per week? Many times, employees are misclassified as exempt and will be owed back wages for up to 2 - 3 years.

Discrimination claims

It’s not illegal to discriminate against you for being you. If the discrimination or harassment fits in one of the categories below, you should contact an attorney or EEOC to find out more about your rights and your responsibility to report it before you make a claim.

___ Race ___ Sex ___ Sexual harassment ___ Religion ___ Ethnicity ____ Disability ____ Age___ Pregnancy ____ National origin ____ Color (same race) ___ Genetic information ____ Retaliation for objecting to discrimination

Ask yourself how you were treated differently than others of a different race, age, sex, national origin, disability, religion, sexual orientation, or color under the same circumstances. Some states, counties or municipalities have more categories, like marital status and sexual orientation. If you can’t point to someone else who was treated differently under the same circumstances, or to instances where you were singled out for different treatment than others, you may not be able to show discrimination.

Does the employer have 15 or more employees? If not, discrimination laws may well not apply. Some states, counties and municipalities have laws that apply to smaller employers.

Why Isn’t My Case On Your List?

Many people are quite certain that some employer actions are illegal, based on bad TV dramas and misconceptions. Here are some examples of things that aren’t illegal, even though you might assume they are:


No federal law requires employers to offer any work breaks for anything, even meals. Some state laws do require work breaks, but it’s not a majority.

Hostile environment/harassment

Hostile work environment is not illegal. General harassment is not illegal. Bullying is not illegal. Only hostile environment/harassment due to race, age, sex, disability, or another legally-protected status is illegal.

Free speech
Only government employees have free speech protections, and those are very limited.

There is no law giving you privacy in your work emails or internet usage. If your employer is going to listen into or record phone calls, there are legal restrictions. You have some privacy rights in your medical information. There is no federal law protecting your social security number, but two states offer limited protection against employers displaying your number.

Right to work

Right to work doesn’t mean your employer can’t make you sign a non-compete agreement or restrict your ability to work for competitors after you leave. What it means is they can’t make you join a union in order to work there. Some states, but not all, are right to work states. If your company tells you that signing a non-compete agreement is meaningless or that it won’t be enforced, they are lying to you.


There is no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, lack of professionalism, ethical violations, bullying, or jerkish behavior.

If you think you have claims to make against your employer or former employer, then the best course of action is to contact an employment lawyer in your state to discuss potential claims.