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Mr. Mavros

Hospitality Law

How to Combat EEOC Retaliation Claims

The Most Frequently Alleged EEOC Claim

By John Mavros, Attorney at Law, Partner, Fisher & Phillips, LLP

Retaliation continues to be the most common claim brought against employers before governmental agencies and in the civil court system. According to Equal Employment Opportunity Commission (EEOC), the agency that enforces Federal labor laws, the EEOC received 42,018 charges of retaliation in 2016. That means that a retaliation claim was asserted in 45.9% of all charges submitted. This is more than discrimination based on race and more than discrimination based on disability. Even more concerning is the consistent uptick in retaliation charges, which have increased in number every year since 1997. So, what can employers do to protect themselves against this ever-growing threat?

First, employers must understand what retaliation is. Next, employers must educate themselves to recognize when a particular set of facts poses a high risk for a retaliation claim. This article will attempt to do both.

Retaliation in a Nutshell

Retaliation is exactly what it sounds like: taking adverse action against an employee in direct response to something an employee did or refused to do. Simple right? However, liability for retaliation doesn't usually arise in a straightforward manner. Indeed, an employer doesn't need to intentionally "retaliate" against an employee to face a retaliation claim.

In summary, employers cannot fire, demote, harass, or otherwise retaliate against employees for engaging in "protected activity." Protected activity is a legal term of art, but generally includes taking a medical leave of absence, complaining about unlawful discrimination, or complaining about unlawful pay practices. It also generally includes filing a wage/hour complaint or causes to be instituted any proceeding under the Fair Labor Standards Act. Remember, the employee need not prove that a complaint turned out to be true, only that it was reasonable to think believe it was. Similarly, an employee who refuses to engage in illegal activity is also protected under the law.

The potential for retaliation arises when an employer takes "adverse" action against an employee after he/she engages in activity that is legally "protected." "Adverse" action can include any action detrimental to the employee's terms and conditions of employment. A common misconception is that "adverse" action is solely limited to termination. For example, pay reductions, demotions, or transfers are all potentially adverse actions.

The Retaliation Problem

Liability for retaliation generally arises when decisions are made by looking at a small set of facts rather than taking a long, hard look at the big picture. When an employee makes a seemingly insignificant comment, or complains about something completely false, decisions are often made without fully considering the import of the employee's actions. HR managers, and their equivalents, must take note and consider them seriously. How is an employer supposed to know what to look for? This is especially difficult when the HR team is bombarded with employee issues, demands from their bosses, and a slew of other "to do" items that can make issue spotting for retaliation difficult to focus on.

Here's a short hypothetical to help employers issue spot for retaliation:

An hourly employee ("Susie") works as a front desk agent. She is often late to work and disrespectful to her supervisor. Susie's supervisor gets tired of her antics and issues a written warning to her for being late to work. The supervisor does not see this as a terminable offense, but simply wants Susie to show up to work on time and be respectful. The following month, Susie continues to show up late and act insubordinate. The supervisor tells HR Manager that he would like to terminate Susie. The supervisor explains that Susie's tardiness is causing problems with scheduling and is further bringing down morale by setting a bad example. The HR Manager does not make an immediate decision, but generally agrees that Susie needs to be let go. The next day Susie mentions to her supervisor that she has not been paid overtime wages properly. She also claims that others may have unpaid wages too. The supervisor quickly looks at Susie's current pay stub and concludes that the complaint is baseless. Subsequently, HR approves the termination and the hotel issues a termination form stating that it is "pursuant to her 'at-will' employment." After all, it was obvious that the employee was consistently late to work and insubordinate for a long time.

Issue Spotting in Real Time

Given this set of facts, Susie will have colorable claims for retaliation and wrongful termination. A plaintiff's lawyer will vividly describe to the jury how Susie bravely told the hotel about their illegal pay practices and yet was subjected to termination right after she complained. Susie was just trying to fight for her hard earned wages and this is how the hotel deals with people who speak up. Susie's attorney will also argue that any claim that Susie was insubordinate was fabricated by the evil supervisor who retaliated against her.

Issue 1 - Write up the Employee Immediately and Completely - Employers must write up employees for violations of company policy. Susie was written up the first time for showing up late, but Susie was not written up for being insubordinate. She also was not written up the second time she was late and insubordinate. Instead, Susie was terminated pursuant to her "at-will" employment. These actions create several problems. First, it fails to documents insubordination.

Issue 2 - Give a Reason for Termination - As a matter of practice, employers should provide the true reason for termination and put it in writing. Without a reason for a termination decision, it gives employees the opportunity to change the story and makes the employer look like they are hiding something. They also should not simply rely on "at-will" employment or the "probationary period." These do little to bolster defense of a retaliation claim. In this case, Susie will claim she was retaliated against because she complained about unpaid wages and the employer will not have anything to show otherwise.

Issue 3 - Be Consistent with Discipline - Susie was written up and ultimately terminated for being late to work and insubordinate. However, if other employees were showing up to work late without being written-up, Susie's retaliation claim just became much stronger. Employers must not give the impression that they are singling someone out. The best way to do this is to be consistent when implementing discipline and enforcing their policies. If discipline is not consistently enforced, writing up an employee for showing up late to work gives the impression of retaliation.

Issue 4 - Investigate All Complaints Fully and Communicate with Employee - Employers should not disregard complaints, especially those regarding wages or discrimination. Supervisor may have looked at Susie's pay stub, but he did not conduct a full investigation into prior pay periods. Nor did he investigate the claim that others may be owed wages as well. Further, he did not inform Susie, in writing, that the complaint was investigated and was either resolved or could not be corroborated. This is necessary to "close the loop" with employees, to establish that the complaint was handled appropriately and not ignored.

Issue 5 - Ensure That All Relevant Decision Makers Know What Happened to Make an Informed Decision - All company supervisors and managers must communicate with one another. Here, supervisor should have informed the GM that Susie made a complaint, especially since Susie was the subject of termination. Armed with this information, the less risky decision would have been to forego termination and simply issue a second write-up for showing up late to work and being insubordinate. While there is no set time frame for holding off on a termination after any "protected" activity, every day that goes by weakens the causal link to a retaliation claim.

Issue 6 - Document Termination Decisions Immediately to Establish a Timeline - Retaliation claims are primarily about timing. As such, employers must be mindful of the timeline they are creating with every adverse action they take. When appropriate, internal employment related decisions should be properly vetted and documented. Here, an e-mail from the GM to supervisor approving the termination the day before Susie's complaint would be strong evidence that her termination was not related to her complaint.

Retaliation claims often arise based on risky circumstances that the employer may not have even realized existed. All adverse employment actions should be reviewed on a case by case basis, taking into account all available information. Following these issue spotting tips will help keep you and your hotel out of the courtroom.

This article provides an overview of the law and is not intended to be, nor should it be construed as legal advice for any particular fact situation. For additional information regarding how this issue may affect your business, please contact the author.

John Mavros, Attorney at Law, is a partner in Fisher Phillips’ Irvine office. He represents employers with labor and employment law, such as unpaid compensation claims, including unpaid minimum wages, overtime, meal/rest period premiums, vacation pay, and/or business expenses, on both an individual and class action basis. Mr. Mavros defends businesses involved in civil litigation or arbitration. This includes defending claims brought before the Division of Labor Standards Enforcement (DLSE aka the Labor Board) and the California Unemployment Insurance Appeals Board. He assists employers with employee handbook preparation, wage/hour audits, new hire policies, employee compensation plans, severance agreements, reductions in force, and day-to-day workforce issues. Mr. Mavros can be contacted at 949-798-2134 or jmavros@laborlawyers.com Extended Bio...

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