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.

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.

Anti-Retaliation Laws Protecting School Employees

anti-retaliation laws protecting public school teachersCalifornia Education Code Sections 44113(a) and 44114(c) are part of the Reporting by School Employees of Improper Governmental Activities Act. It prohibits “an employee” from using his or her official position to retaliate against “any person” to deter that person from making a disclosure protected by the Act. A “person” includes any individual. An employee means public school employee, and of course – a public school teacher, among others. This protection is afforded to public school teacher and other public school employees in addition to all the other otherwise applicable anti-retaliation laws.

The interesting part about this anti-retaliation law is that unlike with other kinds of retaliation laws (such as FEHA or ADA) where individual managers are not liable for retaliation, here, the individual management employees, and not just the school itself as an institution, may be personally liable for retaliation, and even may be liable for punitive damages if it’s proven that their retaliatory conduct was intentional. This includes school’s supervisors and administrators. (Hartnett v Crosier, 205 Cal.App.4th 485 (2012)).

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.

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