1 / 20

Dealing with Retaliation Claims: Preventing & Responding To Retaliation Claims

Pa chamber 2012 annual HR CONFERENCE. Dealing with Retaliation Claims: Preventing & Responding To Retaliation Claims. Schaun D. Henry 717-237-5346 shenry@mwn.com. retaliation. Taking adverse action against an employee because of his exercise of a protected right. TITLE VII.

minowa
Télécharger la présentation

Dealing with Retaliation Claims: Preventing & Responding To Retaliation Claims

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Pa chamber 2012 annual HR CONFERENCE Dealing with Retaliation Claims:Preventing & RespondingTo Retaliation Claims Schaun D. Henry 717-237-5346 shenry@mwn.com

  2. retaliation • Taking adverse action against an employee because of his exercise of a protected right

  3. TITLE VII • Title VII of the Civil Rights Act of 1964 (the "Act") prohibits an employer from retaliating against an employee who has "made a charge, testified, assisted or participated in" any charge of unlawful discrimination under the Act.

  4. Introduction: • RETALIATION: Claims on the Rise 1992 15.3% 2006 29.8% 2007 32.3% 2008 34.3% 2009 36.0% 2010 36.3%

  5. Introduction: • Statistical rise includes claims filed under all statutes including: • Race • Sex • National Origin • Religion • Age • Disability • EPA

  6. Introduction: • The numbers quoted do not include claims under statutes like: • NLRA • State Whistle Blower Laws • Workers' Compensation

  7. Prima facie retaliation case • Protected Activity • What constitutes protected activity? • Adverse Actions • Ensure they are attributable to misconduct • Causal Connections • Were others treated differently for similar offenses? • Are there records to support all actions?

  8. Causal connection • Temporal Proximity • How long is long enough? • vs. timely action

  9. In the wake of burlington northern: • Lowered threshold for "Adverse Action" • We must impress upon managers the need for record keeping • Warnings and counseling may be enough to trigger an Adverse Action

  10. Defending retaliation • Direct evidence claims • Most retaliation claims are based on circumstantial evidence • Your records must convince a jury that we would have acted this way regardless • Difficult to do because "getting back at someone" is understood by all

  11. Is an internal complaint covered?Crawford v. Metro Govt. of Nashville • Can employee claim Title VII protection for cooperating with employer's investigator? • Court ruled the term "Oppose" includes responding to questions • All three 2008 claims found in favor of employee

  12. Third party retaliation claims • Courts have tackled the troublesome issue of third party retaliation claims • One employee complains or otherwise champions the rights of others • Suffers an adverse action

  13. Third party claimsThompson v. N.A. Stainless • Plaintiff brings claim on own behalf based on protected activity of others • Employee claims retaliation after fiancé filed a charge • How do you view the outcome?

  14. Third party claimsThompson v. N.A. Stainless • Meets the purpose of statute's retaliation provisions • Broadened the pool of claimants • Limited success and relies on the depth of the involvement

  15. Three common Retaliation Scenarios • Good reason for action, but direct evidence • Did the employer know of the so-called evidence? • Circumstances create inference of unlawful act • Employee claims protected activity; employer argues activity not protected • Some activities simply not protected; difference in opinion and Whistle Blower law not applicable to private entities

  16. Risk / Reward: • Are attorneys emboldened by attorneys' fees and costs provisions in Whistle Blower claims? • What role do policies and training play in defense?: Shows a lack of intent • How do we treat claims differently when employee is still working? • Avoiding salting claims

  17. Practical Tips: • Clear path for internal reporting of claims • Keep supervisors out of investigation, it's not their strength • Question sudden changes in evaluations of skill set • Require clear and complete documentation for discipline

  18. Practical Tips: • Caution for adverse action of those who have complained • Managing the E-mail War • (E=Evil, eternal, embarrassing evidence) • Prompt written responses from Human Resources to every tiny complaint • Can Human Resources' over-management of complaint start to look nefarious?

  19. Practical tips when currently facing a retaliation claim • Take special care to ensure that similar rule violations by others receive the same punishment; • Inform key managers in each department of the claim so they can help avoid idle talk; • You cannot stop employees from talking about the matter

  20. QUESTIONS?

More Related