When You Are Falsely Accused of Stealing / Fraud at Work

angry-employee-defamation-falsely-accusedHere is one common mistake that an employees who is falsely accused of stealing or fraud or any other serious violation at work make – he gets angry and he confronts his manager. Sometimes this confrontation takes place by e-mail and sometimes in person. Besides denying the allegations, the accused employees tells the employer that there is a conspiracy against him at work, that he is being framed on purpose, that the management is corrupt and they are just trying to screw him out of the job.

Although the above frustration and response to false accusations is understandable, it’s never a good idea to respond that way for several reasons:

1. In most cases, false accusations at work are not illegal, as unfair and as hurtful they might be. Even if you are suspended or even terminated based false accusations of fraud, theft or any other violations, this will not give rise a wrongful termination case except in limit, specific circumstances, where you may have valid defamation claim due to those accusations. This means, that arguing or threatening your employer with suing them is probably not a good idea.

2. If there is an opportunity to clear your name, it will certainly not be accomplished by sending angry e-mails or arguing your managements in an attempt to prove that you are right and you are wrong. You are much better off remaining calm and courteous at all times. Avoid finger pointing or accusing others of conspiring against you. Trying to convince your management that the only reason you are accused of something is because someone is trying to screw you, you usually unproductive and will hurt your chances of proving your point and not being fired much more than help.

Instead, fully cooperate with any investigation. Be completely open and transparent with your employer and help the see for themselves that you haven’t done anything wrong through objective facts rather than arguments. If you really didn’t do anything wrong, this shouldn’t be difficult.

As mentioned earlier, in some cases a false accusation against you may give rise to a legitimate defamation claim (slander/libel) and wrongful termination. Often, your manager might falsely accuse you and defame you in retaliation for your discrimination or harassment complaints in an attempt to get you fired or at least disciplined. You should consult with an experienced employment attorney to determine whether filing a defamation lawsuit is a good idea in your specific situation.

Retaliation Against Employees Participating in Discrimination / Harassment Investigations is Illegal

workplace harassment investigationsOne of the more important cases discussing retaliation protection for employees and specfically what it means to engage in a “protected activity” is the US Supreme Court’s decision in Crawford v. Metropolitan Gov’t of Nashville (2009). In that case, a 30-year employee was interviewed as part of the investigation into sexual harassment allegations against one of the directors. She shared with the investigator that the same director also sexually harassed her. The employer took no action against the director-harasser. However, the employer soon fired Crawford for allegedly engaging in embezzlement.

One of the key disputes issues in the case was whether Crawford’s participating in the investigation constituted a “protected activity” within the meaning of anti-retaliation law. The employer argued that “opposing” within the meaning of the law means actively complaining about harassment, rather than answering questions when being approached and interviewed.

The US Supreme Court rejected the employer’s argument, concluding that a person can “oppose” by responding to someone else’s questions just as surely as by provoking that discussion. The Court noted that nothing in the anti-retaliation statute requires a rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination or harassment in the same words when asked a question.

Holding otherwise, the Court mentioned, would have a chilling effect on discrimination/harassment investigations and would discourage employees from answering the same questions truthfully. After all, if answering questions about harassment and discrimination allegations would not be a protected activity, this would give a good reason to employees to keep quiet in order to avoid the risk of being retaliated by their employer.

“Protected Activity” Within The Meaning of California Anti-Retaliation Laws

retaliation protected activityTo prove a retaliation claim in an employment / wrongful termination claim, a claimant must show that he/she engaged in a “protected activity” under the law – i.e. that the employee reported or opposed an unlawful employment practice or participated in a hearing or a proceeding. Like in many other areas of (employment) law, this definition leaves lots and lots of space for interpretation and determine that a certain activity would be considered “protected” under the law is not always easy. This is because on the one hand, the California Supreme Court held that “standing alone, an employee’s unarticulated belief that an employee is engaging in discrimination will not suffice to establish the retaliation claim. Yanowitz v L’Oreal USA, Inc. The Court further noted that an employee’s complaints about personal grievances or vague, conclusory remarks about being treated poorly or unfairly at work that fail to put the employer on notice of unlawful conduct do not establish a protected activity.

On the other hand, if an employee’s comments and actions, in their totality, oppose discrimination, then no particular buzzwords are required, nor should employees be forced to complain about the discriminatory conduct directly to their immediate supervisors. The Yanowitz decision further held that the proper inquiry is whether an employee’s communications or conduct sufficiently conveyed a reasonable believe that unlawful conduct had occurred.

In Yanowitz, the Supreme Court made another important observation, favorable to employees. The Court noted that an employee may engage in “opposition” within the meaning of anti-retaliation laws not only by raising a complaint, but also by refusing to follow a supervisor’s order to fire an employee for discriminatory reasons.

An employee who considers making a complaint about a violation at workplace, which might be considered a protected activity, such as complaining about discrimination, harassment, safety violations, patient abuse, etc., should consult an experience employment attorney in order to make sure that the complaint is properly drafted, and that it doesn’t hurt the complaining about more than helps.

Bringing 132(a) Retaliation Claim and Wrongful Termination Case at the Same Time

Any employee who suffers discrimination or retaliation as a result of filing a workers compensation claim in California should remember that he generally may have an option of bringing two different claims: (1) the 132(a) claim for retaliation at the Workers Compensation Appeals Board and (2) Wrongful termination/disability discrimination case under ADA/FEHA in court.  Under City of Moorpark v Sup. Ct. (1998), an employee bringing a 132(a) claim is not precluded from having a court action for the same underlying violation.

The advantage of bringing the discrimination/wrongful termination claim in addition to 132(a) case is the additional damages available in wrongful termination cases, which are not available in 132(a) claims. Further, having two cases against the same employer increases the pressure on the employer to settle all claims, since they have to defend both claims and spend money on attorneys on two claims, rather than just one. These two claims would be, of course, in addition to the workers compensation claim itself which would compensate an employee for the underlying industrial injury suffered.

Retaliation for Complaining about Clocking In and Pay Violations Is Ilegal

oral complaints about time clock violationsIn 2011, the US Supreme Court held in Kasten v Saint-Gobain Performance Plastics Corporation (2011) that even oral complaints by employees about not being properly compensated constitute a protected activity within the meaning of anti-retaliation laws. In that case, the plaintiff brought a retaliation lawsuit against his employer under section 213(a)3 of the Fair Labor Standards Act (FLSA). The claim was based on the fact that Plaintiff was terminated shortly after complaining to his management about the location of the time clocks, which prevent him and his co-workers from claiming time and being compensated for the time spent putting on uniform before performing his job duties and taking uniform off after performing the job duties (i.e. the time clock was located between the area where the employees were changing and the area where they were actually performing their duties.

The court analyzed the language of section 213 and reasoned that it forbids employers from terminating any employee because such employee has “filed any complaint”. The Court interpreted “any” to include both written and oral complaints. The Court also found the Defendants’ argument that “filed” means referring to a written complaint only to not be persuasive, and concluded that when the legislature included the term “filed” into the law, it did not intend to mean that it had to be filed in writing, but the complaint only had to be made.

Even When You Can’t Prove Harassment, You Might Still Prove Retaliation Claim

One of the advantages of a retaliation claim from an employee-plaintiff perspective is the fact that even if you can’t prove the underlying harassment or discrimination claim, you might still be able to prove the retaliation claim. A recent case McCoy v Pacific Mar. Ass’n (2013) is a classic example of that situation. In that case, an employee McCoy, who was working as a marine clerk filed a discrimination lawsuit. After the lawsuit was settled, she claimed that during the job training that took place afterwards, the vessel planners retaliated against her by giving her a less desirable room, which increased her isolation from the rest of the vessel planning staff. She presented additional evidence of retaliation in a form of sexual harassment during training.

Although the court actually rejected the jury’s substantial verdict to McCoy on discrimination claims, the court found that there was substantial evidence supporting the conclusion that the employer unlawfully retaliated against McCoy for engaging in a protected activity, and that the retaliation resulted in material alteration of the terms and conditions for her employment.

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