Iowa Employment Law Blog : Iowa Employment Lawyer & Attorney : Patrick Smith : Bradshaw Fowler Proctor & Fairgrave Law Firm : Des Moines, Central IA Discrimination & Labor Law

EEOC statistics for the year ended September 30, 2008, the most recent data that is available, show that charges of retaliation increased by 23% compared to the prior year.   In addition, more than 1/3 of the charges filed with the Agency allege retaliation as one of the claims.   According to this article in The Wall Street Journal, retaliation claims have tripled since the EEOC started keeping track of them in 1992.   The statistics don't include data for the year ending 2009, but anecdotal evidence from lawyers and human resource professionals suggests the trend continues to accelerate.

One reason retaliation claims are so common is that it is easier to prove retaliation than discrimination.   An employee who charges retaliation does not have to prove that he was discriminated against--only that he engaged in what is called "protected activity", and as a result the employer took some adverse action against him.  

"Protected activity" includes a broad range of actions, from filing a formal charge with the EEOC or state civil rights commission, complaining to an HR official about harassment, giving an interview in connection with an internal discrimination investigation, or providing testimony in support of another employee who claims discrimination.

A 2006 U.S. Supreme Court decision, Burlington Northern v. White, also made it easier for employees to prove retaliation.   In White, the Court held that the "adverse action" to which an employee is subject does not have to involve something substantial like a termination, demotion, or cut in pay.  Rather, the employer's action need only be "materially adverse" to a "reasonable employee".  What does that mean?  According to the Supreme Court, "materially adverse" means anything that would have "dissuaded a reasonable worker from making or supporting a charge of discrimination"

In Iowa and many other states, an employee may file a retaliation lawsuit if they were terminated for exercising certain legal rights or fulfilling legal obligations.  Examples include reporting an on the job injury, filing a workers' compensation claim, or serving on a jury.  This type of claim is known as "wrongful discharge in violation of public policy."  It is slightly different than retaliation based upon discrimination because it requires an actual termination; some lesser action will not suffice.

This is a lesson most employers and HR Professionals have heard, but it bears repeating: be cautious and deliberate when taking any action against an employee who may have engaged in protected activity.  That does not mean avoiding discipline or other action that is necessary, but it does mean making sure you have legitimate and documented reasons for whatever action is taken. 

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More signs this week that the federal government is ramping up enforcement of employment laws.  The Department of Justice Civil Rights Division is seeking a $22 million budget increase for 2010, and is seeking to hire 50 new attorneys.   Law Memo Employment Law Blog reports that the EEOC has been very active recently in filing lawsuits.   The Agency  filed 32 lawsuits against employers during one seven day period in September.  Add to that 13 new lawsuits filed or announced on September 29 alone.   The Department of Labor is in the process of hiring 250 new investigators to look for wage and hour violations, particularly in the areas of overtime requirements, minimum wage, and employee breaks.   If you have not done so already, now would be a good time to conduct an audit of your employment practices and procedures. 

This post on HR Daily Advisor offers practical advice on how to avoid retaliation claims.  The first rule: don't let managers or supervisors take adverse action against employees who have complained without first checking with HR.

Washington DC Employment Law Update reports that Senate Judiciary Committee Chairman Patrick Leahy (D, VT) announced his committee is going to hold a hearing to investigate whether the Supreme Court has been misinterpreting laws designed to protect workers from discrimination.  On the witness list, Jack Gross, the plaintiff from Des Moines in the case Gross v. FBL Financial Services, Inc.  (See our related post on this subject here, as well as this one from Workplace Prof Blog).   Gross held that an age discrimination plaintiff must prove that age was the "but-for" reason for the adverse employment action; in other words, the employment action would not have been taken "but-for" the employee's age.  Before Gross, most courts required the plaintiff to prove only that age was "a motivating factor".   Amending the ADEA to lower the burden of proof for employees may be added to Congress' list of pending employment legislation.

Are lawyers giving bad advice about the impact of new technology in the workplace?   In this post on the Fistful of Talent blog, Kris Dunn complains that lawyers too often advise clients only about the perils of social networking and other cutting edge communication tools.  She contends this type of legal advice only scares HR professionals away from modern technology, rather than empowering them to use it effectively.   Attorney Anthony Zaller of California Employment Law Report  proposes this solution: if you want practical legal advice about social networking technology, make sure your employment lawyer uses Facebook, LinkedIn or Twitter,  or at least uses a Blackberry or iPhone.   I'm not sure a lawyer's own use of social networking technology will allow them to give better advice on the subject;  but, the point is well taken that clients need solutions to the legal issues this technology presents, not merely warnings about the inevitable lawsuits.  

Next Friday (October 9) I will be presenting a talk entitled "the Brave New World of Employment Law: What's New in 2009 and What to Expect in the Year Ahead" at the 3rd Annual American Corporate Counsel Association (Iowa Chapter) Annual Seminar in Iowa City.  This has become a marquee event for corporate counsel in Iowa, and I look forward to seeing many of you there.

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There is an interesting debate occurring in the legal blogosphere concerning LinkedIn, a popular business social networking site.   It started with an article a couple of weeks ago in the National Law Journal, where management side lawyers were quoted giving warnings about the dangers of  using LinkedIn to provide recommendations to current or former employees.   The concern is that a terminated employee may use favorable recommendations on LinkedIn as evidence that the employer's stated reason for termination--poor performance--is merely a pretext for discrimination, retaliation, or harassment.

Two posts appearing yesterday take an opposing view.   Daniel Schwartz (Connecticut Employment Law Blog) and Molly DiBianca (Delaware Employment Law Blog) downplay the danger to employers of LinkedIn recommendations.  Dan contends the warnings of management side lawyers are overblown, while Molly argues that news stories such as appeared in the National Law Journal are simply propaganda.

With all due respect to my colleagues in Connecticut and Delaware, in my judgment, employers should be concerned about their managers communicating about an employee on LinkedIn.  It's easy to argue in the abstract that statements on social networking sites are no big deal, but as a practical matter, any communications concerning employee performance, regardless of the media, are potential evidence in a lawsuit.  The unfortunate reality is that many people, including managers or supervisors who probably should know better, tend to be careless when communicating through electronic media, whether that media is text messaging, e-mail, or social networking sites.   Employee lawsuits are a fact of life in today's world, but many of them go away, either through a relatively inexpensive settlement or a dismissal via summary judgment.  What most employers really fear is the suit that is not settled, survives summary judgment, and must be tried to a jury.   A careless recommendation on LinkedIn is just the sort of evidence that can generate a genuine factual dispute in a case and make it more risky and expensive than it otherwise would have been.

This is an important discussion because social networking remains a relatively new phenomenon that the law has not yet caught up with.    We welcome more comments and debate on this issue.

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