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.

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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.

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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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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.

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Bad Performance Review Can Be Evidence of Retaliation

In a recent case we handled, we made an argument that a bad performance review after complaining to management about discrimination is evidence of retaliation. We did not hope that this relatively insignificant action by the employer (as compared to demotion, suspension, termination, etc) would be found actual evidence of retaliation by the court.

However, the court surprised us by noting first that under FEHA (Fair Employment and Housing Act), whether conduct amounts to adverse employment action for the purposes of proving retaliation depends on the totality of circumstances in light of the legitimate interests of both the employer and the employee. Then, the court quoted one of the more important California Supreme Cases on retaliation Yanowitz v L’Oreal: “Adverse treatment that is reasonable likely to impair a reasonable employee’s job performance or prospects for advancement or promotion falls within the reach of FEHA”.

Because in our case we faced exactly that situation – the claimant’s future promotions very much depended on his past performance, we were able to satisfy this adverse action requirements for proving retaliation. The fact that the employer stated in its own handbook that their employees’ promotion in part depends on prior performance reviews was very helpful to our efforts to prove the retaliation claim.

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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.

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Job Reassignment Can Be Considered Retaliation

retaliation at workplace is illegalAs the Supreme Court recently pointed out, one good way to discourage an employee from bringing discrimination charges would be to insist that he spend more time performing the more arduous duties and less time performing those tasks that are easier or more agreeable. This is persumable why the EEOC has consistently found “retaliatory work assignments” to be a classic and “widely recognized” exmaple of “forbidden retaliation”. 2 EEOC 1991 Manual section 614.7, pp. 614-31 to 614-32. See also 1972 Refrence Manual section 495.2 , noting the decision by EEOC involving an employer’s ordering an employee to “do an unpleasant work assignment in retaliation” for filing a racial discrimination complaint. 

Of course, reassignment of job duties is not automatically actionable as retaliation, and it depends on the circumstances of a particular case, and should be judged from the perspective of a reasonable person in the aggrieved employee’s position.

In one recent interesting retaliation case – Burlington Northern & Santa Fe Railway Co. v White (2006), the US supreme court noted that a 37 day suspension of a worker was actionable as retaliation, even though the employee was reinstatement with full backpay. This is because, the court stated, living 37 days without pay while needing to support your family and not knowing, whether you will return to work and when was more than sufficiently adverse employment action, which is not fully compensated by backpay alone.

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Partners are Protected from Retaliation for Reporting Workplace Harassment or Discrimination

In Fitzemons v California Emergency Physicans Med. Grop 205e Cal.App. 4th 1423 (2012), the Appellate Court held that the anti-retaliation provisions of FEHA (Fair Employment and Housing Act) protect not only employees but also partners in a business partnership. In that case, the plaintiff was an emergency physician and a member of a partnership. At one point the plaintiff was promoted to the regional direction position. She was terminated and removed from partnership shortly after she reported to her supervisors that certain officers and agents of the partnerships were sexually harassing some of the female employees. The Appellate Court noted that FEHA makes it unlawful to retaliate against “any person” for opposing unlawful workplace harassment. This anti-retaliation protections extends to partners as well as employees.

This decision is a powerful holding, as it arguably extends the anti-retaliation protections of FEHA anti-retaliation provisions to contractors and  temporary workers as well, if the courts continue to interpret the “any person” language of the FEHA statute literally and broadly.

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California Employment Law: Retaliation for Filing a Workers Compensation Claim is Illegal

retaliation for filing a workers compensation claim is illegalOne of the more common types of unlawful retaliation at workplace is when the employer retaliates against an employee for filing a workers compensation claim. The most common reasons for this type of retaliations are two:

1. Retaliation Due to Employer’s Skepticism of Work Related or Industrial Injuries

Managers and HR analysts become progressively more suspicious of disability claims and workers compensation claims. Once a manager sees one or a few questionable claims where he believes that the employee is faking or exaggeration his injuries, he starts believing that all the others do, and that the employees who claim to be injured and who file workers comp claim or request reasonable accommodation are just lazy and are trying to take advantage of the system. This kind of generalizing based on a few isolated examples of system abuse is of course very dangerous and a sure way to liability for discrimination and retaliating against employees who have real and serious injuries or limitations, whether physical or mental.

2. Retaliation Due to the Increase in Workers Compensation Insurance Premiums Resulting from New Claims

This is more prevalent among smaller employers where every workers compensation claim and every respective increase in the insurance premiums creates a more significant burden on the company’s overall budget and profits. The employer may simply be angry that his employee creates additional expenses for his company instead of simply being “tough” and working through his injury. Some employers even go as far as asking their employees not to file a workers comp claim and instead offer to pay for any of their additional healthcare expenses, which might not be covered by their health insurance. These kinds of requests or any other actions by the employer that would discourage an employee form exercising his rights to taking advantage of the workers compensation system are one type of evidence of discrimination and retaliation that the same employee can use later in a retaliation or wrongful termination claim against the same employer.

Regardless of the reasons, retaliation for filing a workers compensation claim is illegal and grounds for a wrongful termination claim.

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FMLA Anti-Retaliation Protection to California Employees

Besides providing for leave of absence for an employee’s serious medical condition or a close family member’s medical condition, FMLA (family medical leave act) makes it illegal for employers to retaliated against employees for exercising their right to medical leave under FMLA or CFRA (Caliofornia Family Rights Act). This means that disciplining, demoting or terminating an employee for taking medical leave under FMLA is illegal and grounds for a wrongful termination lawsuit. This issue usually arises when the employer initially approves an employee’s FMLA leave, but then during his/her leave or shortly after that medical leave expires, the employer decides to dismiss the employee or lay that employee off due to the alleged restructuring, which in effect does not take place and during which only one employee is laid off.

Proving the FMLA retaliation claim often requires showing, in addition to the timing of the events, that the reasons for an employee’s discharge provided by the employer are either untruthful or inconsistent or both. One such classic situation is where an employee is terminated for alleged performance issues, even though his performance record before taking FMLA leave was very good or outstanding and he received a number of bonuses or promotion or awards or recognition letters for good performance.

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