Q & A With Mark Carey: Retaliation Claims From Our Listeners

In this episode of the Employee Survival Guide, Mark dives into listener questions regarding retaliation claims.  Mark analyzes three real life fact examples and provides you with immediate triage analysis of what he would do in each case.  You will quickly pick up "pro tips" from Mark and incorporate them into your own situation at work.  

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Disclaimer: For educational use only, not intended to be legal advice.

Transcript

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Hey, it's mark here, and welcome to the next edition of the Employee Survival Guide, where I tell you as always, what your employer does definitely not want you to know about and a lot more. It's Mark, and this is the question answer format podcast for the topic today of retaliation implement retaliation, I have to say that the topic of retaliation is probably the easiest claim for me to prove as an employment lawyer and the most popular of what was reported, I have at least three facts, situations where I'm going to report to you today we're gonna do a little triage on we're gonna figure out what's happening in What solutions can be applied to the particular cases. And it will help you figure out the issues you're dealing with with respect to retaliation at work, whether it's led to your termination, or you're currently confronting it. So let's just dive in. The first example is a employee who's aged 63 or so, and working at a pharmaceutical company. Person is claiming that they're being targeted and harassed, since the his testimony was given against the former manager and HR investigation. And the performance for the employee is rather stellar. I've been with a company for many, many years, and typically received performance ratings of meets or exceeds, and paid very well. And now it's being the he's been written up for false compliance errors out of the blue, and once the false compliance errors of the person that were made. So that's your talk. That's your, your, your fact pattern. And let me now it kind of triage the issue. Let me address first and foremost, the retaliation claim is the easiest claim for any employee to prove. And why is that it's should be a feather in your cap, if you're looking for it, but just gotta know what it looks like. And I'll just be as simple as simplistic as possible. You're looking for some type of complaint of to HR to manager, that you're experiencing unfair treatment, you don't have to use the word discrimination test, set forth examples of being treated differently. Because of your protected status, let's say age, in this case, that they're, they're, they're saying to their manager, that you treated me differently, then people are substantially younger than them by like, you know, five years, you get into whatever example, that little verbal or email complaint to a manager is all that's needed. You can get even further and you can say, you know, the word discrimination or age discrimination if you want to, and your verbal or your email. But it really is that simplistic. Now, how does the retaliation claim? How does it form while you take that action to complain? Yeah, generally, you're going to do it because you have a good faith basis to do so you may not be true in terms of you know, whether it actually illegal or not, but we don't the law doesn't protect that. law only says that if you have a good faith belief that there's something happening, and you got to think about this something that people are not going to make complaints about their job discrimination, because, you know, it takes a lot of, you know, mental discipline to do this, or courage. Let's put this with courage, because people are going to ruin their jobs by once they complain. And everybody knows that. And so what Supreme Court United States has really set the standard of saying, We want you to complain, we want you to come forth, because that's the right thing to do. If you find that something happening, we'll protect you. And so the retaliation claim, it goes like this, you you make an accusation, or something's happening to you, verbally, or an email to your manager, or coworker, or not coworker, but to HR, and then look at what happens next. The proximity of time between you making that assertion of complaint and what happens next to you and the fact that it look for like the first week, and then next two weeks and look for three weeks. You can go as far as maybe a month and a half, two months. It depends on the facts of the case. What we're looking for is the cause and effect of you complaining, and then something bad happened to you at work. We implement lawyers call it an adverse employment action, but something bad's like you know, you got a demotion or you weren't assigned to a particular project, whatever it is, you just pointed out, if you can find that next fact that happened, then you have the basis of a close fall time period following the complaint and the adverse action happened as we call it, the Nexus and you can establish a claim in the future if you are severed from your employer, you should be able to raise that easy claim of retaliation. So that's the essence of how mechanics of retaliation work. Now let's look at a fact pattern 64 or 65 year old individual has engaged in testimony of a former manager to HR. So as an HR investigation, I love those HR investigations, don't you, it's just it really just, you know, they're gonna do something to help and really, and then they don't tell you anything about it, they don't give him give you a goddamn report back. Even if you ask him beg and plead, they're not going to give it to you because they don't have to. And no one knows that. But so HR investigations are. It's like a sham kangaroo court. It's like designed to protect the employer, not you. And they're always going to tell you, every single time 100% of time we're going to say to you, we found our determination of the investigation to be nothing happened, nothing was illegally done, etc. And every single time we hear this fact pattern, it's always that example or that response given from the employer. So don't waste your time wondering what the investigation is about or the conclusion whatever. In this insert situation, the employees can participate in the investigation and is protected. Okay. And some cases in some jurisdictions say, well, it's gonna be part of an EEOC investigation. Well, that's not that's not so it's not necessarily true. We also have part of the fact pattern that the once the employees engaged in the investigation and said, What happened about the former manager. And, you know, their performance now is degraded to zero needs improvement, all of a sudden, because and then then you have accusations about, quote unquote, false compliance areas. We're not really told what in a fact pattern what that meant. But that's telltale signs of a blatant discriminatory bias. Because if you complaint into retaliation claim, pure and simple, we have an age component because the person is older. So you may be looking at an age claim aspect as well. You want to look for fact pattern of difference treatment by age but further retaliation situation, it's really easy to see this type of fact pattern and help you discern, you know, what is taking place your HR investigation, you participate in, it's not a sworn testimony or anything like that. But it's you talk to HR about what happened. And suddenly, suddenly, you having negative reviews and, you know, nonsensical BS type of accusations about false compliance errors, I mean, after being with a company for so many years, so that's a joke. Okay. That's simply, you know, that's like the the matrix, you see the pattern is happening. So it's a retaliation claim. And you, you should be taking word or notice here that you want to look for another job. But build your case, before you get out, don't leave the money on the table for a severance negotiation, because that's an easy claim right there. Alright, the next one. Here, let me gather what this is about. So this one is a statement regarding sexual harassment to HR and sex discrimination. Love these courageous person to complain about a former manager, let's assume the manager is male, I don't mean to bash men here. But typically, that's what we see. We do see female sexual harassment complaints against sorry, male complaints about female managers does happen. So the complaint is made about sexual harassment, sex discrimination, and soon after, the new manager who wants who is friends with the old manager, start to retaliate against the complainer. See that a lot, actually. So be on the lookout for that, you know, cold shoulder about the same person, or the new person who's friends with the old person, they're literally just sitting down and just talking behind your back about you and what you did. And, you know, there's some anger there, of course, because you've complained, and you made that person who's the manager, the former manager to look bad. So there, they have it out for you. So that happens a lot. And then the, the the fact that it goes into unnecessary and absurd discipline was imposed upon the employee that was not used for other employees. So that's an example where you, when you were engaging in complaints of discrimination for harassment, you want to look how other people are treated, who are similar to you, you know, working with same group, or whatever it is your department and how they're treated. If they're not, you know, being given an absolute discipline or a pip performance improvement plan, then, you know, that's your, your, your, your comparator, so to speak, as we look at all these cases, about fact, examples of how you're treated versus someone else, whether it's age discrimination, retaliation doesn't matter. It's driven by the facts, okay. You don't need to be a lawyer to look at this stuff. It's just, it's very basic. Just look at how people treated before and after the events took place. And there you go. So when you write it all down your little narrative like I've always told you, in this part of the fact pattern we have, the person was eventually given a pip which is a performance improvement plan and terminated for performance. So terminate for performance means terminated for cause. So if you roll the fact Pattern back up, look at it, the person has complained about sexual harassment to manager, and eventually by the new manager came on board and PIP the person and fact pattern we can easily see the elements of retaliation taking place against the employee. And it's pretty easy case to prove. Why did you ask yourself the insanity? Why do employers do this, they do it because they take the risk that you're not gonna do anything about it. So really easy case to demonstrate for liability purposes in the severance negotiation to establish easy claim of retaliation. So that's the that fact pattern, I'm gonna move on to the next one. This one has to do with a employee who's aged 55 when working for a company for more than 25 years. And let's see, there was a minute change in his direct reporting. And the employee complained about bullying harassment, problems with a manager and retaliated against for falling for following compliance rules and refusing to delete records improperly, as the employer ordered employee complained about the mistreatment and was placed with a new supervisor, that's again, pretty common. He was abused by by many. So he says, and it was terminated in part due to the client to the the manager that he was assigned to was terminated due to the complaint by the client. And then we have fact that it goes on to say that the employee was put on a pip. He or she rebutted that PIP and resisted the consumer complaints, etc. When I say that the rebutting the PIP, when you create this, make sure you go into the facts of what happened in the allegations of the PIP and rebut it with facts and demonstrate that those things are really, you know, are moot. Because if you were about with facts, instead of the, you know, some of the subjective beliefs by a manager, it was not really anything factual, you can make it appear that the underlying aspects are the retaliation complaints that were made. In this instance, and our fact pattern was a you know, we don't really know what the fact, complaints were made with, essentially complaint about bullying and harassment, so we'll have to assume something took place there. So in this fact, pattern continues on saying there's an investigation, outside counsel was brought in, probably a colleague of mine was on the defense side, investigating the matter. And then they determined, no discrimination was found no harassment, I mean, very common, we hear that all the time. And the fact that it tells us also that the person was not allowed to see the investigative findings, I told you that is happens as well. And the employee here is still employed with the employer, and figuring out whether or not what's going to happen. So I'm gonna just go into the aspect of you're still employed, and you've experienced retaliation. Let's say you didn't get promotion or whatever. But you still need your income, stay employed as long as possible, get your narrative moving, documenting for yourself privately. Because in the event that you eventually are fired, employers will wait a period of six months before they come after you and fire you. Even though you've participated in or complained about harassment, bullying, they'll wait their time, because defense counsel tells them, well just hold off and see what happens maybe can catch the employee on performance grounds to fire them. The PIP, it was they put the person on, I mean, all these little stupid default tactics, they try to make it appear like the employees suddenly bad performing. But if you look at the fact that it's all emanating from the first day, the person complained. So in this fact, pattern is still an ongoing process. So the nexus of time between the complaint and the termination hasn't happened yet. And we're not encouraging the employee to go out and file a lawsuit, of course, but you might want to just re up the retaliation complaint. Again, if you need to, just to prolong things as you look for another job somewhere and build your case and see if the employer trips up and does something stupid, I'm going to tell you that I have this kind of internal goal. And I have a record of internally of keeping an employee employed for I think, was a two and a half year stint that I kept on filing complaints to continue to bolster the Nexus aspect of the original complaint. So if you have multiple complaints, there's no law saying you can't have as many complaints as possible. The opposing counsel in the case I was working on with a large insurance company out of the New York City had complimented me on the fact that, you know, did my client record the employer to duty, it just, they were so frustrated the fact that I had filed I think it was probably anywhere from five to six EEOC charges over a two and a half year period of time, and it just would not be Give up. And eventually the employer relented, and we negotiated a settlement of the case and resolved it. So that was an example where you can really drag the process on keep the employee employed, because I really don't care what you do with your case, so long as you have income coming in for yourself and your household. So there's an example I just described, you can file multiple complaints, and keep that ball rolling, keep the Nexus going, keep those connected complaints all nice and tidy in your fact pattern. And the employer gets frustrated, because like why wait a minute, this person has talked to an employment lawyer, obviously. So it makes it harder for you to get fired. That's an insurance policy, why would you want to do that. So it's a favorite little tactic bind. Again, you're hearing lots of little nuanced tricks that I pull off with these cases, because I'm trying to, you know, keep you employed, if I can, if I can't, then I'm going to build a case for severance. In a worst case scenario, I'm going to build a case for a lawsuit of retaliation. So hopefully, you find these tactics, in fact, patterns helpful for you, answering real life situations, providing a triage, and what I would do in the circumstance and what I have done in cases I've worked on. So until next time, I'll talk to you soon. If you'd like the employees to have a guide, I'd really encourage you to leave a review. We try really hard to produce information to you that's informative, that's timely that you can actually use and solve problems on your own and at your employment. So if you like to leave a review anywhere you listen to our podcasts, please do so. And leave five stars because anything less than five is really not as good, right? I'll keep it up. I'll keep the standards up. I'll keep the information flowing out you. If you'd like to send me an email and ask me a question. I'll actually review it and post it on there. You can send it to Mcarey at capclaw.com That's capclaw.com