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Retaliation and Whistleblowing

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Charles Lamberton will be co-presenting a session at national NELA’s Spring Convention this April in Boston.  Charles’s session will address how various types of emerging technology, including social media in all of its forms, have become integral to the way that many of our clients, their co-workers, and supervisors communicate both inside and outside the workplace.

Social media and other forms of electronic communication can be a powerful organizing tool, but their use may open employees up to retaliatory actions. Understanding the depth, breadth, and nature of a client’s or potential client’s online presence at as early a stage as possible is vital to representing them effectively. We will review the standards for determining which forms of online communication could also qualify as protected activity, which types and forms of electronic communication should be avoided, and what to be on the lookout for in terms of defense tactics designed to turn employees’ online activity against them.

The National Employment Lawyers Association is the country’s largest professional organization that is exclusively comprised of lawyers who represent individual employees in cases involving employment discrimination and other employment-related matters.  NELA and its 69 state and local affiliates have more than 4,000 members.

Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.

To politely correct the Third Circuit

Marble courthouse building facade in black and white.The plaintiff in Jones v. Southeastern Pennsylvania Transp. Authority, — F.3d — , 2015 WL 4746391 (August 12, 2015) brought a retaliatory discharge claim. The employer asserted that it fired the plaintiff for falsifying time sheets. The plaintiff argued that she was fired for prior protected activities. One of the plaintiff’s arguments was that she had not falsified her time sheets. In other words, she directly challenged the employer’s termination reason and argued that it was objectively false. In a regrettable misstatement of the law, the Third Circuit wrote that “showing that an employer incorrectly found an employee guilty of misconduct is insufficient to prove retaliation….” In fact, however, proof that an employer’s reasons are false is strong circumstantial evidence of retaliation.

The Third Circuit has long held that summary judgment is improper when the plaintiff contradicts the core facts underlying an employer’s termination decision.  Tomasso v. Boeing Co., 445 F.3d 702, 707 (3rd Cir. 2006); Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 331 (3rd Cir. 1995) (reversing summary judgment for employer where employee cited specific examples where employer’s criticisms were erroneous and misplaced).

In Tomasso, the plaintiff pointed to specific falsities, errors and misplaced criticisms in the employer’s articulated reason for the plaintiff’s lay-off. The decisionmaker claimed that the plaintiff lacked interest in performing PVA inspections, but the plaintiff testified that was false. Tomasso, 445 F.3d at 707. The decisionmaker faulted the plaintiff for not attending a training session, but the plaintiff testified that attendance was not mandatory, and that he was having health problems at the time. Id. at 707-708.  The decisionmaker testified that the plaintiff did not engage in PVA transition activities, yet the plaintiff testified he was one of only a few employees who participated in such activities. Id. at 708.

The Third Circuit concluded that the decisionmaker and the plaintiff were telling “radically different” stories and that “[a] fact finder who credited [the plaintiff’s] testimony could conclude that [the decisionmaker] gave him acceptable evaluations for his PVA work and never told him that he needed to improve or increase his PVA work, that [the plaintiff] began to transition his primary supplier to PVAs, and that [the plaintiff] was selected to participate in an important PVA project soon before he was laid off. The fact finder could further conclude that [the plaintiff] never expressed disinterest in PVAs, and that he missed a PVA transition meeting solely for health reasons.” Tomasso, 445 F.3d at 708. The Court determined that the plaintiff’s evidence contradicted the “core facts” underlying the employer’s termination decision, Tomasso, 445 F.3d at 709 and held that summary judgment was improper because “[the plaintiff’s] evidence, if believed, does not merely suggest that the … [decisionmaker] was “wrong or mistaken,” or that [he] innocently misperceived [the plaintiff’s] interest in PVAs.  Rather, one who believed [the plaintiff’s] affidavit could find such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [the defendant’s] explanation as to deem it unworthy of credence.” Id. at 708-709.

What is most unsettling about Jones is that the Court made a mistake on a fundamentally settled point of law. The falsity of an employer’s explanation always supports an inference of pretext, particularly when combined with proof of mendacity. Hicks, 509 U.S. at 511 (1993).  See also, Reeves, 530 U.S. at 144 (reversing judgment for employer where clerical employee proved he properly maintained attendance records despite employer’s claim he did not);  Fasold, 409 F.3d at 185-86 (reversing judgment for employer where police employee proved he generated a sufficient number of arrests despite employer’s claim he did not);  Sheridan, 72 FEP Cases at 529 (reversing judgment for employer where employee proved she was on jury duty at time employer claimed she had dispensed free drinks);  Brewer, 72 F.3d at 331 (reversing judgment for employer where employee cited specific examples where employer’s criticisms were erroneous or misplaced).

Judges are human beings and humans make mistakes. But let’s hope we don’t see anymore like this one.

Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.

Dos and don’ts on discrimination complaints

dos-and-dontsHow you complain about discrimination at work can make the difference between success and failure on a retaliation claim. So here are some tips on what to do and what not to do when complaining about workplace discrimination.

DO:  Consult with a lawyer. Complain in writing. Complain promptly. Consult your Employee Handbook. Complain to your supervisor, someone above your supervisor or to human resources. Report the facts that show your honest and reasonable belief that discrimination on the basis of race, gender, age, disability, national origin, religion (or any other protected bases) has occurred. Remember that you can complain about discrimination against others, not just yourself. Request an investigation and corrective action. Offer to cooperate in your employer’s investigation. Be professional and respectful in your language and tone. Keep a log of dates and events such as who you talked to, when, what you talked about and what you were told. Save all relevant emails, text messages and paper documents.

DON’T:  Go it alone. Complain verbally without following up in writing. Wait weeks or months before complaining. Ignore the procedures in your Employee Handbook. Pretend that the discriminatory behavior will go away if you ignore it. Laugh along with the discriminator to show that you know how to “get along” or be a “team member.” Complain to a co-worker. Complain about “discrimination” without relating it to a protected status such as race, gender, disability, national origin, age, or religion. Wait around for the employer to report back to you. Be unprofessional, angry or hostile in your language and tone. Think you will remember everything without writing it down. Copy, print or download documents or information that you are not authorized to access. Discard any relevant emails, text messages or other important evidence.      

Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.

Terminated after reporting sexual harassment?

Sexual Harassment at workFirst, understand that you did the right thing. You were correct to complain because sexual harassment at work is illegal. Under the law, you also had a duty to complain so that the employer could investigate and hopefully put an end to the sexual harassment. Unfortunately, your employer fired you instead. Now it’s time to contact an experienced employment lawyer to help you. Just as workplace sexual harassment is illegal, it is also illegal to fire someone because they have reported sexual harassment. The law calls that retaliation, and employees have legal protections against retaliation by their employers. You may be entitled to past and future lost wages, damages for emotional distress, punitive damages and your attorney fees. Don’t delay because there is a deadline to take action and if you miss it, it may not be possible to pursue your claims.

Employer preemption of protected activities

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Employees have a right to oppose discrimination and unlawful wage practices in the workplace, to assist others in enforcing their rights to overtime pay, to the minimum wage and to freedom from discrimination, and to participate in any manner proceedings, hearings or investigations under the federal wage and hour and anti-discrimination laws.

These laws prohibit employers from retaliating against employees who have engaged in a protected acts of opposition, assistance or participation.  But what happens when an employer threatens to take adverse action if the employee exercises a protected right? “If you cooperate with the Agency’s investigation, you’re fired.” “If you support Jane’s pregnancy discrimination case, you’re fired.”  Threats of retaliation such as these can deter protected activities as effectively as retaliation after-the-fact. If frightened workers stop coming forward with their grievances and their testimony, the statutes protecting workers and their rights to overtime pay, the minimum wage and to equal treatment at work cannot be enforced. That’s why employers who make such threats can expect the Department of Labor, the EEOC or a private party to seek an injunction prohibiting the threats, any retaliation against workers, and ordering the employer to reassure those it previously threatened that it will not act against them.

Take a look at this recent Temporary Restraining Order from the United States District Court for the Central District of California.  It illustrates what happens when employers go to far and threaten their workers if they exercising their legal rights. In this case, the Department of Labor was investigating the employer for violations of the Fair Labor Standards Act. The employer told its employees that anyone who cooperated with the DOL would be fired. The DOL sought and obtained a TRO. It contained this powerful language:

IT IS SO ORDERED that: (1) Defendants be enjoined from terminating or threatening to terminate; reporting or threatening to report to immigration authorities, inflicting or threatening to inflict bodily harm on, or retaliating or discriminating against their employees in any other way, based on their belief that such employee spoke · with a Department of Labor official; (2) Defendants be enjoined from telling anyone who works for them not to speak to representatives of the Secretary or to provide false information to the Secretary or otherwise coercing employees to make false statements regarding the terms and conditions of their employment; (3) Defendants be enjoined from obstructing the Secretary’s investigation in any way; and that (4) a representative of the Secretary, be required to read aloud the following statement to all employees employed at [Defendants’] facilities informing them of their right to speak with representatives of the Secretary free from retaliation or threats of retaliation or intimidation by Defendants, the statement to be read during employees’ paid working hours:  “You are protected by the Fair Labor Standards Act and have the right to participate freely in the U.S. Department of Labor’s investigation into your employer’s pay practices. You have the right to speak freely with investigators or other officials from the Department of Labor. Your employer is prohibited from retaliating against you in any way, including by terminating you, reporting you to immigration, inflicting physical-harm on you, or.threatening to do any of these things because you spoke with the Department of Labor. The U.S. District Court/or the Central District of California has ordered Mr. Ameri, and anyone acting on Mr. Ameri’s behalf, to cease coercing, retaliating against, threatening to retaliate against, intimidating, or attempting to influence or in any way threatening employees for providing information to the Department of Labor.

 

CONTACT US

LAMBERTON LAW FIRM, LLC
707 GRANT STREET
1705 GULF TOWER
PITTSBURGH, PA 15219

412-258-2250 | OFFICE DIRECT
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CAL@LAMBERTONLAW.COM


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