“Why Are You Picking on Me, Boss?”
Complaining Employees and Retaliation Claims
Retaliation claims are becoming more common and getting easier to prove—which makes them a gold mine for disgruntled employees and a costly, litigious nightmare for employers. Ever since 2006, a steady stream of court decisions has liberalized the standard of proof for retaliation, making it a lot easier for employees to prove that they’re a victim. Here’s how it usually works…
An employee makes a claim of discrimination or harassment, or perhaps engages in some other protected activity, such as filing a claim for workers’ compensation. At some later date, the employer tries to impose an adverse employment action, e.g., demotion or termination, or even something as simple as changing schedules and hours. The employee then alleges that they were fired, demoted or had their schedule and hours changed in retaliation for their claim or their protected activity from before.
Under the law, the employee only needs to show that retaliation was a factor in the adverse employment action, not necessarily the only factor. Think of the recent high-profile Supreme Court case Staub v. Proctor Hospital. In this “cat’s paw” case, retaliation was found to be a factor in how Mr. Staub was treated leading up to his dismissal.
Dealing with an employee who has lodged a complaint is really a huge problem. Are employees insulated from discipline or discharge once they engage in that protected activity? No—absolutely not. Employees who have claimed to be victims of discrimination or harassment should be treated the same as any other employee facing the same type of discipline or discharge.
In reality, however, employers must tread very carefully. Once an employee makes a complaint, sometimes the supervisor’s natural tendency is to put more effort into documenting performance issues that existed all along. Unfortunately, this sudden interest in documenting everything actually increases the likelihood of an allegation of retaliation, because the employee feels like he or she is being picked on. The employee starts wondering, “Where did all these complaints about me come from?” And that’s when your actions seem more like retaliation.
What do plaintiffs have to do to prove when they claim they are the victims of retaliation? It seems easy on the surface, but in this presentation, Ron Chapman of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. will go over the nuances that have developed in case law. What’s the framework for analyzing a case—and how often do cases follow this framework?
In this quick, informative 60-minute session, get up to speed about the recent developments in the law of retaliation that could affect you and your company. How will these developments affect employers’ strategies, when you have to address legitimate problems of a current employee who has lodged a complaint in the past? Sign up today to find out.
- What is unlawful retaliation, and what isn't?
- Why is a retaliation claim more dangerous than other types of claims?
- Can a company discipline an employee for negative postings on Facebook or Twitter?
- Can a company discipline an employee for performance problems shortly after that employee complains that her supervisor was sexually harassing her?
- What can you do to minimize the risk of a retaliation claim when a current employee lodges a complaint of some kind?
Ron Chapman, Jr.
Mr. Chapman is Board Certified in labor and employment law by the Texas Board of Legal Specialization and practices at the firm Ogletree, Deakins, Nash, Smoak & Stewart, P.C. He represents employers in all areas of labor and employment law, including discrimination, harassment, retaliation, wage and hour, non-competition and non-disclosure covenants, leaves of absence, employment agreements and policies, union campaigns, collective bargaining, unfair labor practices, and workplace safety. Mr. Chapman has defended clients in over 25 states and the U.S. Virgin Islands, including class and collective actions, and regularly provides counseling to help clients navigate both legal and practical considerations.
In 2010, Employment Law360 named Mr. Chapman one of the nation’s ten “Rising Stars” in employment law, based on his “out-of-this-world approach to client service,” noting four key components: “a competitive rate or fee arrangement, a high degree of efficiency in performing the work, extreme responsiveness, and great results.” Mr. Chapman is listed in The Best Lawyers in America, Chambers USA lists him as one of the country’s “Leading Lawyers,” Texas Monthly consistently names him a “Super Lawyer,” D Magazine recognizes him as one of the “Best Lawyers in Dallas,” and the Dallas Business Journal has named him a “Top Corporate Defender.” Representative clients include Ericsson, FedEx Office, Fossil, GameStop, Hertz, Raytheon, Southwest Airlines, Texas Instruments, and Valero. For more information, please visit www.ogletreedeakins.com or contact Ron at firstname.lastname@example.org.
Audio Conference Formats Explained
- Audio Conference CD Only: $229.00 (includes S&H)
Length: 1 hour 30 minutes