How Employers Retaliate After Firing You

There two main ways that an employer may retaliate against a terminated employee. The first one is challenging the terminated employee’s unemployment benefits application by trying to argue that the employee was terminated for misconduct. In many, if not most, cases that employee should be able to prevail, showing during the application process or at the unemployment benefits appeal hearing that the employer cannot meet the burden of proving that the employee was terminated for misconduct, and therefore the unemployment benefits should be awarded.

The second common way in which employers retaliate is by giving negative references to the terminated employee’s prospective employers. While merely suspecting that the reason you can’t get a job is because of the negative references from one of your previous employers, it is really worth make sure that the suspected employer does not engage in that kind of unethical and generally unlawful practice. The best way to start is to user the service of one of the major reference check agencies. Just google “reference check” and you will find a number of companies who, for a modest fee, will call your former employer, pretending that they are your prospective employer. The agency representative will ask all the right questions and then will let you know exactly what the employer said about you. If the employer doesn’t say anything bad about you, then you will know that they are most likely not the reason you weren’t able to get job. If they are saying something bad about you, then you can consider what legal steps you can take to make them stop defaming you.

Complaining About Discrimination/Harassment on Facebook and Twitter

It is important to remember that the anti-retaliation provisions of Title VII and the similar California laws go far beyond protecting those employee who complain to the employer or a government agency about discrimination or harassment at workplace. The range of activities for which firing an employee would be considered retaliatory and unlawful extends far beyond those complaints.

For instance, under Sumner v US Postal Service (1990). In that case, the court specifically pointed out that “protected activities” under the law includes informal complaints, complaints or letters to customers about discrimination and expressing support for co-workers who filed formal charges. Grant v Hazelett Strip-Casting Corp. (2d Cir. 1989).  

The more difficult question, that will surely arise in the near future at a modern workplace, is whether complaining or sharing beliefs about discrimination and harassment at workplace through Facebook, Twitter and other social media channels will be considered a protected activity. Specific legislation to address and include social media will likely be necessary in order to clarify this point, as the way the anti-retaliation laws are written today does not account for social media communication of discrimination and harassment concerns by employees.

Not Renewing an Employment Contract is Not a Wrongful Termination

Recently, the Court of Appeal reiterated in Touchstone Television Productions v Superior Court (2012), that not renewing an employee’s contract cannot be considered a wrongful termination, because, among other reasons, employment for a fixed period of time is terminated automatically at the time that contract expires. The Court further stated that even if one of the reasons for not renewing the contract was the fact that the plaintiff complained about unsafe working conditions does not change the fact that she was not terminated, and thus no wrongful termination claim can be made.

Plaintiff could still sue for damages for discrimination and retaliation in violation of Cal. Labor Code 6310 which prohibits discriminating or retaliating against an employee for complaining about unsafe working conditions.

Proving Workplace Retaliation through Employer’s Lies

One of the important elements of proving a retaliation claim in an wrongful termination case is showing that the employer’s given reasons for termination are either inconsistent or plaintly not true, which makes it look like the employer is trying to cover up the true reason for termination with lies. In one case I recently handled, an employer shot himself in the foot by telling me during the deposition testimony about how bad my client was as a worker, he would go on and on about every little thing that my client did wrong while working for the company over the period of 8 years. That, however, was hardly helpful to the employer, because my client never received a single warning or counseling letter. Not only was my client one of the higher ranked employees, but he even received a very flattering reference letter when he was “laid off.” The fact that my client was replaced about a month after being “laid off” was yet another sign that this was not a lay-off but a firing. The employer tried to hide the fact that my client was replaced by changing the title of the new employee. The duties of the positions remained the same, however, which counts much more than the label that the company gave to any given job. 

It’s the attorney’s job to unconver the lies and inconsistencies to make the wrongful termination case stronger. As a client, you can do a lot to help your attorney make your case stronger by directing him/her into the direction where these lies and inconsistencies in the employer’s policies and the reasons for your termination can be found. Typically, wrongful termination cases require proving discriminatory/retaliatiory mindset on the part of the employer. Direct evidence of discrimination/retaliation is hardly ever available, and from the courts’ point of view, the employer’s misrepresenetations about the employee’s performance, policies and procedures, and reasons for termination are critical in helping an employee to surivive a motion to dismiss in court (or motion for summary judgment) and/or achieve a better result through settlement negotiations or in trial.

It is often suggested that Plaintiff’s credibility in a wrongful termination case can make or break the case. You can be sure that if there is a way for the employer’s attorneys to attack your credibility on even the most minor issues (incorrect information on application for employment or in a resume, criminal past, etc..), they will do it. It has been my experience that attacking the employer’s credibility is just as damaging or even more damaging to the employer.

Keep Your Anger in Check When Complaining about Discrimination / Harassment

Anger rarely benefits anyone. No one likes angry people and no one wants to help them. Angry people rarely get large verdicts from a jury or a judge because it’s hard to be generous and understanding of an angry Plaintiff on a stand. The same applies to human resources personnel. Some employees think that attacking their hr department and being “aggressive” with them will produce encourage them to be more eager to help. Nothing is further from truth, and taking out your frustration on hr departments is pointless at best, and is likely to be harmful to you as an employee for at least two major reasons.

First, few if any hr managers are directly to blame for creating an environment of discrimination or harassment. At worst, they fail to take action to remedy legal violations, but the hr person is usually not the harasser. Thus, attacking him/her makes no sense and will likely alienate the people who are supposed to be helping you work through your workplace problems.

Secondly, when you lose your temper with a hr manager, you run the risk of being disciplined for being rude and insubordinate. If you are an “at will” employee (most employees are “at will” employees who don’t have a contract of employment and who can be terminated for any reason or no reason), you can be easily disciplined or even terminated just for that, and that will be perfectly legal. Arguing later that the real reason for your termination was an illegal retaliation for your complaints rather than your conduct is possible, but might be an uphill battle, since proving the employer’s motive is always a challenge. After all, the employers almost never shoot themselves in the foot by voicing their retaliatory intent and actually saying “I am firing you because of your harassment/discrimination complaints.”

The law on preventing and remedying discrimination and harassment is not black and white and there is a lot of grey area as to what exactly the managers in charge are supposed to be doing to prevent and remedy workplace harassment or discrimination. Being nice can go a long way when complaining about discrimination or harassment to your superiors at work, because the people who are in the position to help you, will be all the more willing to help you and take an extra step to remedy and prevent future wrongdoing to you, if they like you. The law on preventing and remedying discrimination and harassment is not black and white and there is a lot of grey area as to what exactly the managers in charge are supposed to be doing to prevent and remedy workplace harassment or discrimination.

Tips for Complaining about Discrimination or Harassment to Your Manager and HR

It is important that you follow a three simple rules when complaining about discrimination, harassment or retaliation that you believe you or your co-workers are being subjected to:

1. Complain in writing. Oral complaints are often forgot or misunderstood. You would also be surprised how often the employer denies the very fact that an employee complained about discrimination or harassment. When all you have is your word against the word of your manager as to whether you actually complained it is going to be an uphill battle to prove that you actually complained. On the other hand, complaining in writing by e-mail, or by fax with proof of transmission will ensure that the employer cannot back out from conceding that they knew about your complaints.

2. Make sure you complaints are concise and to the point.  One of the most common mistakes that employees make when submitting a written complaint is making it far too long. Recently I saw a 35 page “complaint” that looked more like an novel, which included the history of employee’s excellent performance and contributions to the company, some political references, personal attacks on managers, and other irrelevant information which has nothing to do the complaints themselves. Besides talking about the harassment, the employee went into great detail about how it affected and continues to effect him emotionally.  A reader would have to devote at least half an hour to get the gist of the complaint. Lengthy complaints are bad for two reasons. First, they don’t get prompt attention. People in charge tend to read short letters and short e-mails first and tend to put the longer writings on a “back burner” until they have more time to focus on that. Some of that longer material may well be completely overlooked and never get the attention it so badly needs. There is no reason why anyone’s complaint should be longer than two pages.

3. Make sure that your complaints are specific.  Simply using such words as discrimination, harassment, abusive, hostile, etc… doesn’t really say much to the reader. Therefore, in addition to using those generic, legal terms, you should specifically describe that actions that you believe are discriminatory or harassing. Quote specific words and describe specific actions, so that the manager reading your complaint knows exactly what’s going on. For instance, stating in your complaint that your co-worker through a heavy stapler at you and hit your head is better than saying that your co-worker has violent tendencies. Likewise, stating that your boss told you that he would like to bend you over his desk and has his way with you is much more compelling of a complaint than simple saying that your co-workers has made inappropriate sexual advances toward.

By following the above three tips when complaining about discrimination, harassment or retaliation, you will both help yourself and help the employer to be informed of the nature of your complaints better and quicker, and as a result to hopefully take action to remedy harassment/discrimination sooner than later.

Proving Workplace Retaliation Claim

One of the most common employment and wrongful termination related claims that are brought by employees in California is a claim for workplace retaliation. Many of my colleagues and a few employers and HR managers that I know believe that it’s practically natural for employers to want to take action against an employee who “stirs things up” at work, thereby threatening his superiors’ status and job security among other things, and being otherwise “disruptive.” In many ways retaliation is motivate by a very powerful human emotion – revenge. It takes a lot of maturity, self control, as well as knowledge of the law for a manager to avoid engaging in retaliation.

Retaliation, however, is not easy to prove. Like in many other employment discrimination and wrongful termination cases, when it comes to retaliation, proving the employer’s animosity or retaliatory motive is critical. In these kinds of cases, the devil is in the detail. One e-mails, one voicemail, one text message, or IM chat or Facebook post can make or break the case.

In the future articles, I will discuss different kinds of evidence the both employee and employers use, based on significant past California cases, addressing retaliation, that are used by both sides to prove and disprove retaliation allegations.

One of the things that make employment law both interesting and stressful is the fact that it’s constantly evolving. New cases are coming out all the time, some of which seem to be hard to reconcile with other for several reason, one of which is the given judges’ personal views and predispositions on giving weight to various kinds of evidence of the employer’s wrongful conduct. Retaliation is not an exception to this and it is one of the more evolving areas of employment and wrongful termination law.

In the future articles, I will discuss different kinds of evidence the both employee and employers use, based on significant past California cases, addressing retaliation, that are used by both sides to prove and disprove retaliation allegations.