October 9, 2014

Employment retaliation: the high cost of revenge

Posted in Discrimination, National Origin, Race, Retaliation, Title VII of the Civil Rights Act of 1964 tagged , , , , , , at 7:40 pm by Tom Jacobson

Kinkead 10-10-14

While seeking revenge, dig two graves; one for yourself. Douglas Horton

Most laws granting rights to employees include anti-retaliation provisions intended to protect the employees who exercise those rights. Title VII of the Civil Rights Act of 1964 is no exception. Buffalo, MN based Izza Bending Tube & Wire and Wells Fargo & Co. recently learned that lesson the expensive way. That is, via costly settlements of EEOC employment retaliation charges.

Both cases were investigated by the Minneapolis, MN area office of the EEOC. In the Wells Fargo case, the EEOC determined that an employee reported to the company’s human resources department that she was being subjected to differential treatment based on her race and national origin. The agency also found that the employee’s supervisor told her not to speak Spanish during her non-duty time. Shortly after the employee’s report, the EEOC found, Wells Fargo disciplined and then terminated the employee for practices other employees regularly engaged in without discipline. This, the EEOC concluded, violated the employment retaliation provisions of Title VII.

To resolve the charge, Wells Fargo agreed to pay $295,000.00. The company also agreed to:

  • Conduct training on the laws prohibiting employment discrimination, with special emphasis on employment retaliation and English-only speaking requirements;
  • Distribute to all employees an annual e-mail affirming its commitment to diversity, multilingual ability and the use of languages other than English in the workplace;
  • Report to the EEOC all allegations of discrimination or employment retaliation annually for three years.

In the Izza case, the EEOC alleged that a manager first instructed an employee to not hire a black temporary worker for a permanent position and then told the employee to get rid of him because of his race. The EEOC further alleged that after the employee filed a discrimination charge with the EEOC, she was laid off and then terminated in retaliation. Izza settled the case by paying $45,000.00 and agreeing to train employees and report any retaliation complaints to the EEOC.

The main takeaway from these cases is that retaliating against employees who exercise their Title VII rights is by itself a violation of Title VII, and resolving those cases can be extremely expensive. The same holds true for employees who exercise their rights under the Minnesota Human Rights Act and many other employment laws. Moreover, preserving access to the justice system by fighting employment retaliation under Title VII is one of the EEOC’s 2013-2016 Strategic Enforcement Plan priorities. Therefore, employers would be wise to make prohibiting employment retaliation one of their HR priorities. Or, start digging.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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July 1, 2014

Key provisions of WESA take effect July 1

Posted in Care of Relatives Leave, Discrimination, Domestic violence, Employee Handbooks, Employee Privacy, Equal Pay, Gender / Sex, Leaves of Absence, Minnesota Human Rights Act, Minnesota Parenting Leave Act, Nursing Mothers, Parenting Leave, Pregnancy, Retaliation, Sick Leave, Sick or Injured Child Care Leave, Wage non-disclosure, Women's Economic Security Act tagged , , , , , at 12:56 pm by Tom Jacobson

2014_05_11_WESA_signingAlthough Gov. Mark Dayton signed it into law on May 11, 2014 the following key provisions of the Women’s Economic Security Act (WESA) go into effect today:

  • Expansion of Minnesota’s parenting and pregnancy leave laws: More employees are now eligible for this leave, and the amount of available leave has been increased from six to twelve weeks. Applies to Minnesota employers with 21 or more employees.
  • Expansion of permissible use of sick leave: Parents-in-law and grandchildren are now included in the list of persons for whom eligible employees may use their sick leave. Employees may also use sick leave for “safety leave,” which is leave for the purpose of providing or receiving assistance because of sexual assault, domestic abuse, or stalking. Applies to Minnesota employers with 21 or more employees.
  • Wage disclosure prohibitions; employee handbook notice requirement; remedies: Prohibits employers from, among other things, requiring employees to keep their wages confidential. Requires employers to include in their employee handbooks a notice regarding employees’ rights and remedies under the new law. Allows employers to prohibit wage disclosure to competitors and to otherwise protect trade secrets, proprietary and other privileged information. Applies to all Minnesota employers with one or more employees.
  • Clarifies rights of nursing mothers: Clarifies that when making reasonable efforts to provide a room or other location for expressing breast milk in privacy, that space must: be in close proximity to the work area; be somewhere other than a bathroom or a toilet stall; be shielded from view; be free from intrusion from coworkers and the public; and include access to an electrical outlet.  Applies to all Minnesota employers with one or more employees.

This is only a summary of portions of WESA that take effect today. Other provisions of WESA went into effect on May 12, 2014; more will take effect August 1, 2014. To learn how WESA may impact your workplace, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

February 27, 2014

Getting the Story Straight

Posted in Disability, Discipline, Discrimination, Legitimate business reason, Legitimate Business Reason for Termination or other Adverse Action, Pretext, Retaliation, Uncategorized tagged , , , , at 3:49 pm by Tom Jacobson

crossed fingersAs much as everyone hopes that an employee will always be the right fit for a job, sometimes employers need to discharge a worker. And unless doing so breaks a contract or is based on some unlawful reason (such as illegal discrimination), the dismissal will usually withstand any legal challenge.

One of biggest mistakes an employer can make, though, is giving inconsistent reasons for dismissing the employee. This is because inconsistent reasoning hurts the employer’s credibility and can lead a court to find that the stated reason was really a pretext to cover up unlawful discrimination.

For example, in one recent case (Barnhart v. Regions Hospital) where a former employee claimed her firing resulted from unlawful discrimination, the employer claimed the real reason was her poor attendance and her failure to call in when she was going to be late or absent. However, other evidence suggested that the employer terminated her because of company restructuring. The judge ruled that this inconsistency called into question the true reason for the employee’ termination, and he ordered that the case would need to go trial where the true reason for the dismissal would have to be decided by a court. Had the employer given a consistent explanation, the case likely would have been dismissed.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

November 9, 2012

January 16, 2013 Employment Law Update Announced

Posted in Acknowledgment, Age, Arrest records, At-will Employment, Background Checking, Color, Conviction Records, Criminal History, Disability, Disclaimers, Discrimination, Employee Handbooks, Facebook, Fair Labor Standards Act, Family and Medical Leave Act, Gender / Sex, Harassment, Hiring and Recruiting, Interactive Process, Leaves of Absence, National Labor Relations Act, National Origin, Posting Requirements, Posting Requrements, Protected Concerted Activity, Race, Reasonable Accommodation, Religion, Retaliation, Sexual Harassment, Sick Leave, Social Media, Social Media in the Workplace, Workplace Posters tagged , , , , at 10:28 am by Tom Jacobson

Need continuing education credits?  Want to keep up to date on the latest developments in employment law?  If so, here’s an opportunity for you.

I’ll be moderating Lorman’s Employment Law Update in Fargo, North Dakota on January 16, 2013. The day-long event has been approved for 6.5 hours of HRCI and CLE credit, 1.0 hour of HRPD credit, and 8.0 hours of CPE credit.

In interested, please contact me at taj@alexandriamnlaw.com, or click here for more information or to register.

I hope to see you in Fargo on January 13!

P.S. Don’t forget to ask me about a discount on the registration fee!

August 5, 2012

With Legitimate Business Reasons for Dismissal, Plaintiffs Can’t Always Get What They Want

Posted in At-will Employment, Color, Disability, Discrimination, Family and Medical Leave Act (FMLA), Gender / Sex, Legitimate business reason, Marital Status, National Origin, Pretext, Prima Facie Case, Race, Reduction in Force (RIF), Religion, Reprisal, Retaliation, Sexual Orientation, Termination for Cause, Wrongful Termination tagged , , , , , , , , , , , , , at 8:20 pm by Tom Jacobson

I’ve often advocated that regardless of whether an employment relationship is contractual (where the reasons and/or process for dismissal may be spelled out in an agreement) or at-will (where the employment can be ended with or without notice and with or without legal cause), the best practice is to have a legitimate business reason for discharging an employee. Three recent court decisions validate my point.

Let me set the stage by noting that in discrimination cases, the employee wants to prove that the employer’s actions were based on some unlawful discriminatory reason, such as age, race or gender.  The employer, of course, wants to prove that its decisions were based on entirely legitimate reasons. To balance these competing interests, the courts recognize a process that begins with the employee being required to present a legally-specified bare minimum of evidence suggesting that discrimination occurred. This is called the employee’s prima facie case. If the employee can do that, the burden shifts to the employer to present evidence that its actions were based on legitimate (non-discriminatory) business reasons. Once that’s done, the burden shifts back to the employee to present evidence that the employer’s stated reason is a pretext, which is basically a cover up for the true discriminatory motive. In legalese, this is referred to as the McDonnell-Douglas burden-shifting framework (named after the  United States Supreme Court’s 1973 decision in the case of McDonnell-Douglas v. Green).

The effectiveness of being able to establish a legitimate business reason played out recently in three separate cases. First, in Prody v. City of Anoka a former employee established a prima facie case of age discrimination under the federal Age Discrimination in Employment Act (ADEA) and the Minnesota Human Rights Act (MHRA). The employer then presented evidence that he was dismissed as a part of a reduction in force (RIF). Because the plaintiff could not establish pretext, the case was dismissed.

Next, in Bone v. G4 Youth Services, LLC the employee alleged age, race and Family and Medical Leave Act (FMLA) discrimination. As in the Prody case, the plaintiff was unable to show that the employer’s stated reasons for the discharge (failing to follow a directive, poor communication, losing the trust of employees, and refusing in general to accommodate employees’ requests) were a pretext for discrimination.

Finally, in Hilt v. St. Jude Medical S.C., Inc. the plaintiff claimed the employer fired her in violation of Minnesota’s Whistleblower Act. The employer presented evidence that the termination resulted from a RIF, and because the plaintiff could not establish that the RIF was a pretext, the court dismissed the case.

So, as these three cases illustrate, if you are an employee who feels you’ve been discriminated against, but your employer can demonstrate a legitimate business reason for its actions, You Can’t Always Get What You Want (thank you, Rolling Stones!).

What you need to know:  Regardless of the type of employment relationship, it is always an employer’s best practice to be able to rely on evidence to show that employment decisions are based on legitimate non-discriminatory reasons.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

February 1, 2011

“Total Bullsh*t”: good HR response – not!

Posted in Discrimination, Gender / Sex, Harassment, Reprisal, Retaliation, Training tagged , , at 9:20 am by Tom Jacobson

Yes, this stuff still happens …

Rebecca Young-Losee was an administrative assistant at Graphic Packaging, International, Inc.   According to the allegations in her federal lawsuit now pending in Iowa,  her supervisor called her “retarded,” “crippled,” “stupid,” and a “bitch.”  Understandably upset by this treatment, she complained multiple times to the company’s plant manager, production manager, office manager, and human resources representative.  The HR representative advised her to submit a “formal complaint of harassment,” which Young-Losee did.

After submitting the formal complaint, Young-Losee met with the plant manager and two other managers.  During this meeting, the plant manager interrupted Young-Losee and would not allow her speak.  Eventually, he wadded up her complaint, threw it in the trash, told her it was “total bullshit,” pointed to the door and said “I want you out of here” and that he never wanted to see her again.

Not too surprisingly, the United States Court of Appeals for the Eighth Circuit ruled on January 26, 2011 that Young-Losee’s lawsuit for being fired in retaliation for making her discrimination complaint may proceed.  You can read the full opinion at Young-Losee v Graphic Packaging International, Inc.

This case is a classic example of how a poor response by an employer can generate a lawsuit that might have been completely avoidable.  Young-Losee’s underlying harassment complaint may actually be total BS, but she had a right to complain.   Unfortunately, GPI’s alleged reaction has led to costly litigation that probably could have been avoided had GPI’s managers taken her complaint seriously and responded with reasonable actions aimed at promptly ending the harassment.

If you have any questions about this post, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

January 26, 2011

Supreme Court: door now wide open for third-party retaliation claims under Title VII

Posted in Discrimination, Reprisal, Retaliation, Third Party Claims, Third Party Claims tagged , , , , , , at 9:23 am by Tom Jacobson

In a unanimous decision filed January 24, 2011 the United States Supreme Court has ruled that under Title VII of the Civil Rights Act of 1964, employees may sue for retaliation, even if they themselves never engaged in any protected activity.

Retaliation has always been unlawful under Title VII, but until now such claims have been limited to those cases where employers retaliate against employees who engage in some type of protected activity. For example, if an employer fires an employee because that employee filed a sexual harassment complaint against the company, the employee would have a legitimate claim for retaliation under Title VII.  Now, based on the Supreme Court’s ruling, if that same employer leaves the complaining party alone but takes action against a different employee, the other employee now has a legitimate claim for retaliation under Title VII.

The Supreme’s decision came in the case of Thompson v. North American Stainless, http://bit.ly/hafLvd.  The basic facts of the case were that Eric Thompson and his fiancée, Miriam Regalado, both worked for NAS.  After Regalado filed a sex discrimination charge with the Equal Employment Opportunity Commission (EEOC) against NAS, NAS fired Thompson. Thompson brought a claim under Title VII of the Civil Rights Act, alleging that NAS fired him to retaliate against Regalado for filing her charge.  The trial court threw out Thompson’s claim, and the Sixth Circuit U.S. Court of Appeals agreed with the trial court.  However, the Supreme Court reversed those decisions and ruled that Thompson may proceed with his case.

What is unique about the Thompson v. NAS case is that NAS did not fire the employee who filed the initial discrimination charge (Regalado); it fired her boyfriend (Thompson). In its decision the Supreme Court noted that the anti-retaliation provisions of Title VII must be broadly interpreted. The Court then ruled that “[A]ccepting the facts as alleged, Thompson is not an accidental victim of the retaliation—collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII.”

The full impact of the Thompson v. NAS case remains to be seen.  However, one outcome is certain:  the door is now wide open for third party employees to sue their employers for retaliation under Title VII.  As a practical matter, this means that before an employer takes any action against an employee, the employer should also take steps to ensure that its decision is not connected in any way to some other employee’s activity that is protected under Title VII.

If you have any questions about this post, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

January 12, 2011

EEOC reports “unprecedented” number of charges in 2010

Posted in Discrimination, Race, Retaliation tagged , , , , at 10:53 am by Tom Jacobson

The Equal Employment Opportunity Commission has released its discrimination charge statistics for fiscal year 2010. Its report shows that private sector job bias claims reached the unprecedented level of 99,992 charges for the year ending September 30, 2010. The EEOC also reports that “Through its combined enforcement, mediation and litigation programs, the EEOC secured more than $404 million in monetary benefits from employers — the highest level of monetary relief ever obtained by the Commission through the administrative process — to promote inclusive and discrimination-free workplaces. EEOC Reports Job Bias Charges Hit Record High of Nearly 100,000 in Fiscal Year 2010, http://bit.ly/gpKA4w).

Although the number of charges increased in all categories, FY 2010 was the first year in which retaliation (36,258 claims) surpassed race (35,890 claims) as the most frequently alleged violation. Also according to the EEOC, its mediation program set a record of 9,370 cases resolved through mediation (a ten percent increase).

Some analysts suggest that the surge in job bias claims has been fueled by a bad economy which motivates displaced or disgruntled employees to litigate. Dismal Job Market Fuels Job Bias Claims, http://on.today.com/gIFYoG.  Other contributing factors include the increasingly diverse workforce and the EEOC’s own efforts to spread the word about workplace discrimination. The EEOC reports that in FY 2010 it delivered its public outreach message to 250,000 people.

Regardless of the reasons for the increased number of charges, the EEOC’s statistics stand as a vivid reminder that unlawful discrimination persists in the U.S. workforce. Employers who take a pro-active approach at eliminating job-bias and taking prompt remedial action when issues arise will be in the best position to defend those claims should they arise in their workplace.

The EEOC’s FY 2010 statistics can be found at http://bit.ly/hr87vj.

If you have any questions about this post, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

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