Protecting Your Organization from Retaliation Claims Raymond L Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Hogge Law Attorneys and Counselors at Law 500 E. Plume Street, Suite 800 Norfolk, Virginia 23510 (757) 961-5400 This presentation is available on VirginiaLaborLaw.com

Why is Retaliation Important? Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Why is Retaliation Important? Retaliation is prohibited under many federal and state statutes. Plaintiff can lose underlying claim and still win retaliation claim. Can expose employers to greater liability than underlying claim. Retaliation claims are on the rise.

What Laws Prohibit Retaliation? Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. What Laws Prohibit Retaliation? Title VII and other EEO laws FLSA and other wage hour laws FMLA Virginia Workers’ Compensation Act OSHA And more....

What is Retaliation? Retaliation is (“causal link”) Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. What is Retaliation? Retaliation is an “adverse action” taken against an “employee” because the person engaged in (“causal link”) a “protected activity”

Who is a Protected Employee? Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Who is a Protected Employee? Current Employees Applicants Former Employees

What Actions Are Protected? Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. What Actions Are Protected? Opposition Participation Seeking or obtaining benefits

What Actions Are Protected? Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. What Actions Are Protected? Opposition - examples Speaking out against illegal conduct Questioning illegal conduct Refusing to violate law Lodging an internal complaint Facebook? The employee must have an objectively reasonable belief that what he is opposing is unlawful. The employee must have an objectively reasonable belief that what he is opposing is unlawful. Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir 2006).

What Actions Are Protected? Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. What Actions Are Protected? Participation - examples Filing an agency charge Providing evidence in an agency investigation Filing a lawsuit Testifying

What Actions Are Protected? Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. What Actions Are Protected? Seeking or obtaining benefits - examples Requesting or taking FMLA leave Requesting ADA accommodation Requesting FLSA overtime Filing worker’s compensation claim

What is an Adverse Action? Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. What is an Adverse Action? Termination? Demotion? Denial of promotion? “Cold shoulder?” Slights from coworkers? Not being invited to lunch? Not being invited to the SHRM convention?

What is an Adverse Action? Sante Fe Railway v. White, Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. What is an Adverse Action? Burlington Northern & Sante Fe Railway v. White, 548 U.S. 53 (U.S. S. Ct. 2006)

Burlington Northern v. White Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Burlington Northern v. White Sheila White complained about sexist remarks by supervisor Burlington punished supervisor Burlington changed White’s job duties Burlington suspended White for insubordination, but reversed No loss of pay or benefits Issue: adverse action?

Burlington Northern v. White Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Burlington Northern v. White “The antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.” Plaintiff must prove some harm to establish adverse action What kind of harm, and how much?

Burlington Northern v. White Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Burlington Northern v. White “The antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that effect the terms and conditions of employment” Plaintiff need not prove loss of pay or benefits to establish adverse action

Burlington Northern v. White Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Burlington Northern v. White “An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace” Plaintiff need not prove harm at workplace to establish adverse action

Burlington Northern v. White Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Burlington Northern v. White Title VII retaliation provision applies only to employer actions “that would have been materially adverse to a reasonable employee or job applicant.” Action must be more than adverse; it must be materially adverse

Burlington Northern v. White Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Burlington Northern v. White To establish adverse action “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in the present context means it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

Burlington Northern v. White Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Burlington Northern v. White “Reasonable employee” is an objective standard, not subjective Unresolved issue: What if an action meets the objective standard, but the employee subjectively did not perceived it as materially adverse? What if the action had no effect on the employee at all?

Burlington Northern v. White Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Burlington Northern v. White The Title VII retaliation provision prohibits “employer actions that are likely to deter victims of discrimination from complaining to the EEOC, the courts and their employers.” Important: “and their employers”

Burlington Northern v. White Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Burlington Northern v. White Not all objectionable actions are materially adverse. The harm caused by the action must be “significant” “It is important to separate significant from trivial harm” “Petty slights, minor annoyances, and simple lack of good manners” are not sufficient

Burlington Northern v. White Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Burlington Northern v. White “The significance of any given act of retaliation will often depend upon the particular circumstances. Context matters…. An act that would be immaterial in some situations is material in others.” Litigation Note: This may prevent summary judgment in many retaliation cases

Is proof of retaliatory intent still required? Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. What About Intent? In Burlington Northern the Court noted: “Burlington does not question the jury’s determination that the motivation for these acts was retaliatory” Because “motivation” was not disputed in Burlington Northern, the Court did not discuss intent Is proof of retaliatory intent still required?

Protecting Your Organization from Retaliation Claims Raymond L Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. What About Intent? Assuming proof of intent is still required, what is the relevant intent / motivation / animus? Intent to punish or do harm? Intent to take the challenged action? What causal connection must exist between the act of the employer and the act of the employer? Courts are struggling with this question

Preventing Retaliation Liability Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Preventing Retaliation Liability Adopt strong written antiretaliation policy Evidence of actual policy and practice Promotes consistency in organizational practices Written documents are persuasive to juries Agencies expect antiretaliation policy Lack of policy may suggest organization tolerates retaliation

Preventing Retaliation Liability Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Preventing Retaliation Liability Include in antiretaliation policy: Company prohibits retaliation Explanation of what retaliation is Examples of retaliation Retaliation will result in discipline or discharge Procedure for reporting retaliation Summary of investigatory procedures

Preventing Retaliation Liability Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Preventing Retaliation Liability Include antiretaliation statement in personnel documents Grievance procedure Grievance forms Open door policy EEO policy Sexual harassment policy Employee evaluation forms

Preventing Retaliation Liability Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Preventing Retaliation Liability Train supervisors and managers Retaliation policy and procedures How to prevent retaliation How to recognize and respond to retaliation Use case studies and practice sessions Require attendance at training Keep training attendance records Keep records of training materials

Preventing Retaliation Liability Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Preventing Retaliation Liability Counsel supervisors who may engage in retaliation Retaliation is natural response of supervisor to employee accusation or complaint Remind supervisor that retaliation is illegal and prohibited Get written commitment from supervisor not to retaliate

Preventing Retaliation Liability Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Preventing Retaliation Liability Promptly investigate Retaliation complaints Reports of retaliation Information suggesting possible retaliation Complaints that may reflect retaliation Inform direct supervisors so they can monitor situation

Preventing Retaliation Liability Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Preventing Retaliation Liability Prepare written report documenting Reason for investigation Investigative process List of witnesses List of documents Factual findings and conclusions Recommended remedial action, if any This report is for internal use only and should not be shared with the employee or the accused

Preventing Retaliation Liability Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Preventing Retaliation Liability Conclude investigation and take remedial action, if any, promptly Orally inform employee and accused supervisor of outcome of investigation If retaliation not found, explain reason to employee If retaliation is found, take appropriate disciplinary or remedial action

Preventing Retaliation Liability Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Preventing Retaliation Liability Follow up with complaining employee to confirm no further retaliation 30 days 60 days 6 months Document the follow up meetings

Preventing Retaliation Liability Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Preventing Retaliation Liability Do not let fear of retaliation claim prevent you from managing employee Apply performance standards consistently Apply standards of conduct consistently Apply discipline consistently

Preventing Retaliation Liability Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Preventing Retaliation Liability Consistency is one the best ways to prevent retaliation claims and one of the best ways to defend them Apply performance standards consistently Apply standards of conduct consistently Apply discipline consistently

Preventing Retaliation Liability Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Preventing Retaliation Liability Documentation is crucial to prove consistency and non-retaliation Document job performance through evaluations on a regular schedule Document performance deficiencies Document disciplinary action Document employee complaints

How to Respond to Retaliation Claims Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. How to Respond to Retaliation Claims Apply the same techniques you use for responding to and investigating underlying claims of discrimination, harassment, etc. Follow your antiretaliation policy

Protecting Your Organization from Retaliation Claims Raymond L Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Hogge Law Attorneys and Counselors at Law 999 Waterside Drive, Suite 1313 Norfolk, Virginia 23510 (757) 961-5400 This presentation is available on VirginiaLaborLaw.com