Post Complaint Retaliation

As you know from my training sessions, retaliation is the #1 claim filed in the United States. Retaliation can ONLY occur due to the actions of a Manager. Which means that many management employees are not properly trained in the law and/or the many vulnerable risk areas that a Plaintiff’s attorney will seek to attack.

In a recent case against HSBC Securities, an employee is seeking to amend his initial complaint to add additional claims of retaliation that allegedly occurred after he filed the complaint. For example, he claims new allegations of a “continued pattern of retaliation” by physically locking him out of HSBC offices, placing him on administrative leave and denying him a bonus for the first time in his nearly four year tenure. All of these actions were obviously done by a manager.

My point is this: managers must be made aware of the risk of taking any action against an employee who had filed any form of complaint, even just an internal one.  Of course, if there is a legitimate reason for the action, it must be clearly documented. But as with the HSBC case, employees will tell their attorney every action that they believe is adverse, even if it occurs after termination, and the attorney will craft it into a retaliation claim which will cost you more time and money to defend.

 

Contact me to learn how ERS can customize affordable training options that meet your specific needs and train your staff on how best to avoid an employee claim.

Transfer as an Adverse Action Even if Requested

The United States Supreme Court on Monday decided NOT to hear an appeal of a case that held that a transfer can be an adverse employment action even when the employee has requested the job change!

The decision held that a transfer can still be an adverse action if the work environment is “objectively intolerable” even after the transfer. In the case, the employee requested the transfer and was ultimately awarded the transfer but later claimed that the transfer was a deliberate attempt to set him up to fail (because he did not have the requisite computer skills). He claimed that regardless of the transfer, there was a pervasive atmosphere of racial insensitivity and derogatory comments.

This appears to be one of those cases that the employer may face liability despite all of the training it provided. But, it serves as a reminder that the area of employment law is always changing which requires training managers on a regular basis.

 

Contact me to learn how ERS can customize affordable training options that meet your specific needs and train your staff on how best to avoid an employee claim.

Transgender Recognized Under Title VII

In a memo dated December 15, 2014, the U.S. Justice Department announced that it will interpret Title VII to protect discrimination claims based on gender identity, including transgender workers, reversing an earlier position.

This means that the government can now bring claims against state and local public employers based upon transgender discrimination. It does NOT apply to private employers…..yet; although the EEOC has previously announced its opinion that discrimination against transgender employees is covered under Title VII’s protection of “sex/gender.”

My best advice is to treat transgender employees as you would any other employee. The best way to ensure this treatment is proper training of managers.  No company wants to be part of the history making case extending the protection to private employers under Title VII.

 

Contact me to learn how ERS can customize affordable training options that meet your specific needs and train your staff on how best to avoid an employee claim.

 

Pregnancy Discrimination $185M

Yesterday, a California jury awarded a record $185 million in punitive damages to an employee who claimed she was fired from AutoZone after complaining that she was demoted after giving birth. The jury clearly found that the alleged gender discrimination was malicious:

After receiving promotions over several years, the Plaintiff informed the company of her pregnancy in November 2004. According to the allegations, she was immediately asked to “step down” because she would not be able to handle the responsibilities of running a store and being a mother at the same time.

According to the complaint, after giving birth in May 2005, she complained about differential treatment and in February 2006 she was demoted. She filed a formal complaint over the demotion and in November 2008 she was terminated for allegedly misplacing an envelope with cash from a register.

At many of my training seminars, attendees are shocked by the number of pregnant employees that continue to allege differential treatment. In many of the cases that I speak about, the actions of the company were perfectly justified…but it is the manner and method of how the actions are carried out that result in the employee contacting an attorney.

 

California Training on “Abusive Conduct”

Effective January 1, 2015, California employers will be required to incorporate training to supervisors on “abusive conduct” as part of the required sexual harassment training.

The new law, AB2053, defines “abusive conduct” as:

Conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.

As you can see, the definition is broad and allows for various legal interpretations…which, as a result, demands live training to explain how to comply.  And, perhaps most important, it does not include any requirement that the abuse be associated with a protected characteristic.

I have added AB2053 to my training sessions for 2015. I urge you to review your policies and training schedules and
Contact me
to learn how ERS can customize affordable training options that meet your specific needs and train your staff on how best to avoid an employee claim.