Posted by marykeating on May 16, 2010 under retaliation | 
The Maryland Court of Appeals issued an opinion last week in favor of a health care whistleblower. An employee had made internal complaints about serious safety issues at the hospice facility where she worked. She was fired before she could take the complaints further. Under the eight year old law protecting health care whistleblowers, the Court held that she had the right to a trial to prove that she was fired in retaliation for her complaints about the unsafe practices.
Under this particular whistleblower law, a health care employer must correct violations of the law that endanger the health and safety of patients. In addition, many employees, nurses among them, have personal obligations to report violations to the licensing board. In this case, the nurse complained to her supervisor about the lax oversight of narcotic dispensation. For example, “starter packs” of controlled pain medications had been delivered to families of pediatric patients without taking appropriate safeguards to ensure that other children in the house were protected.
Before the employee could go to the nursing board, she was fired. The Court of Appeals decided that it was counter-productive to require an employee to complain outside of the health care facility, if the complaint resulted in corrective action. In addition, the highest court rejected the argument that the employees engaging in the illegal behavior were not responsible for setting policy at the facility.
The case is limited to this specific statute, which details the requirements that the employee report the issue internally and give the employer a chance to correct the problem, and that the problem “poses a substantial and specific danger to the public health or safety.” Still, one statement of the Court is intriguing: it agrees with the commentary of Paul Tobias, a founder of the National Employment Lawyers Association, quoting the following passage:
“Although it would clearly seem to be in employers’ interest to encourage employees to report violations internally before (or instead of) making reports to governmental authorities, a number of courts that have addressed the issue have held that the public policy tort doctrine does not protect a whistleblower from retaliation unless he or she has gone outside the company with reports of wrongdoing.
“The majority (and better) view, however, is that internal protests are enough, and that the viability of a public policy tort claim by a discharged whistleblower does not depend on whether or not the violations or illegal activities were reported to outside authorities.”
Paul H. Tobias, Litigating Wrongful Discharge Claims § 5.13 (1987 & Supp. 2009-10)
The Court then stated: “We agree with that observation.” This statement may foretell a loosening of the difficult standard facing whistleblowers who do not fit the mold of the health care workers. For those workers, it has been the law that unless they go to an outside agency, that is report to the “appropriate authorities,” retaliatory firing is perfectly legal. Perhaps Maryland is ready to join the majority of states which do not require that outside report.
Posted by marykeating on April 30, 2010 under disability discrimination, retaliation |
William Blake sued Baltimore County in 2007 for retaliation. Blake had testified, after being subpoenaed, in a case brought by a fellow officer claiming to have been forced into early retirement in violation of the Americans with Disabilities Act. The next day the County ordered him to report to its chosen physician to determine if he was fit for duty. He was also ordered to bring voluminous medical records. Officer Blake felt compelled to comply with the order, since if he defied his superior he could be fired. But he was quite disturbed by the intrusion into his medical history.
The asserted reason for this exam was a ten-year old single instance of a seizure, which the County had not revisited since it happened until the date after Officer Blake’s testimony. The County’s physician concluded that his physical condition presented no obstacle to his continuing to work. The County followed up with further orders to undergo tests.
Officer Blake presented a classic case of retaliation for participating in a proceeding alleging discrimination. While retaliation has always been illegal, the courts for many years narrowed the ability to pursue a retaliation claim by requiring the retaliation to take the form of a tangible employment action, typically firing or demotion. So the employee who was moved to a tiny office and given no work to do was unable to pursue a retaliation claim.
That was the case until the Supreme Court widened the definition in the case of Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). In that case the Supreme Court instructed that illegal retaliation occurs when the retaliatory treatment would dissuade a reasonable employee from making or supporting a discrimination claim in the future. It contrasted the anti-discrimination and the anti-retaliation provisions of the laws forbidding workplace discrimination: the anti-discrimination provision “seeks to prevent injury to individuals based on who they are,” while “the anti-retaliation provision seeks to prevent harms to individuals based on what they do.” Therefore, the types of retaliation that could chill the exercise of rights is much broader, and not necessarily limited to the workplace.
Since Officer Blake continues to work for Baltimore County, the jury sitting in federal court in Baltimore awarded him damages based solely on his emotional distress. Kudos to his lawyer, my friend Kathleen Cahill, for helping him obtain justice.
Posted by marykeating on March 23, 2010 under Federal wage and hour law, retaliation |
The Supreme Court agreed yesterday to decide a case of critical importance to retaliation claims under the federal wage law, the Fair Labor Standards Act. The request to the Supreme Court presented one question for review:
Is an oral complaint of a violation of the Fair Labor Standards Act protected conduct under the anti-retaliation provision, 29 U.S.C. § 215(a)(3)?
Anti-retaliation laws give powerful protection for employees who either complain about their own discriminatory treatment, or someone else’s. Often the proof available to establish sexual harassment, for example, is too disputed for the plaintiff to win, but the employer’s retaliatory reaction is crystal clear.
For historical reasons the language of the Fair Labor Standards Act is different. That law dates from the Great Depression, while the Civil Rights Acts from the 60s, 70s, and 80s broadened the language defining retaliation.
In the case before the Supreme Court, a Wisconsin factory worker complained to his supervisor and to the company’s human resources department that the company’s location of time clocks was illegal. The placement of the clocks led to employees not being paid for time spent putting on and taking off protective clothing and Kevin Kasten warned his company, using the company’s reporting procedures, that it was acting illegally. He was warned, suspended and fired. The company lost in the trial court but convinced the appeals court that oral complaints cannot be “filed,” as required by the statute. 
The Supreme Court accepts very few cases every year, but one of its major criteria is whether there is a “split” in the Circuits, meaning that appellate courts of equal stature interpret the same law in opposite ways. This issue has split the Circuits, with many agreeing that to “file” a complaint does not require a piece of paper.
It is never safe to guess why the Supreme Court takes on a case, or how the case will come out. Still, it will be helpful to get this issue settled. If the Court upholds the Seventh Circuit, and permits retaliation for oral complaints of wage violations, the outcome will likely be more retaliatory firings, but also perhaps more union campaigns to combat the perceived unfairness, and more employees complaining in writing or to the Department of Labor when they believe there are wage and hour missteps.
Posted by marykeating on November 11, 2009 under veterans' discrimination |
Veterans have long received mixed welcome upon their return home from service. Many of us remember the Vietnam era veterans’ difficulty in reassimilating, facing as they did receptions ranging from indifference to outright hostility. These days we give more lip service to honoring the sacrifices of this country’s service members. But whether we truly support our troops is open to question when such a large portion of our homeless population consists of veterans, and the medical benefits available for their specific needs is often denied.
One way we can, and must, support veterans is in the workplace. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) forbids employers from discriminating against individuals because of their service (or application to serve) in the uniformed armed services. Briefly, the law requires employers to rehire a returning service member into the same job they held, or a job up the ladder that he or she would have held if not for the break in service required by the military. If the service member needs additional training to meet the requirements of the old or the escalated job, the employer has to provide it. In addition, an employer may not refuse to hire or promote someone because of his membership in, for example, the National Guard. The reemployment requirements apply to any service member whose cumulative absences are less than five years, with exceptions.
In addition, returning service members with disabilities must be accommodated, if a reasonable accommodation is available.
The law asks service members to give reasonable notice of their being called to duty, and requires them to return promptly to work if they were gone for no more than 30 days. If they are gone longer, or return disabled, they have more time to notify the employer and claim their old job. If the absence is up to six months, they have two weeks to return; if more than six months, they have 90 days to notify the employer that they are ready to return to their old job.
This law can pose hardships on the employer. First of all, it applies to all employers, regardless of size. So a company of three can be in the position of losing an employee for short or long-term duty, and if the military does not give much warning of deployment, then the employer does not get that warning either. Upon return, the service member is entitled to the old job back; the replacement may need to be fired. Second, with the long-running wars in the middle east, return deployments are common. Sometimes there is very little notice that a person is being called up. Congress has decided that the burden of the uncertainty is going to be shared by the service member and his family, and the employer who will have to deal with the occasional tours of duty.
Employers have to post USERRA rights notices. As with other discrimination statutes, retaliation for exercising rights or standing up for other employees’ rights is actionable.
Posted by marykeating on October 19, 2009 under Uncategorized, Wage and hour issues |
The Fair Labor Standards Act requires hourly employees to be paid for time worked, and for time during which the employer “suffers or permits” the employee to work. Many disputes arise over the right to payment for time spent putting on protective clothing, reaching the workplace (for example, going through security and walking to the timeclock), and waiting time. Some rules are clear, and others still await court clarification. But today I’m going to discuss the right to be free from retaliation for complaining about a practice that may violate the law.
As defined in the FLSA retaliation means “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter.” 29 U.S.C. § 215 (a)(3). To show that retaliation, the employee has to first establish that the complaint falls within the narrowly defined range of activities. In practical terms, this means that it is not enough to complain to human relations that employees are not being paid overtime, for example. The employee has to filed a complaint with the Department of Labor or a court.
This standard is stricter than the rules for race and sex discrimination and harassment. A victim of sexual harassment can meet the protected activity definition by complaining to management of the behavior, and stating clearly that she finds it offensive and unwelcome.
In addition to showing that the protected activity is, indeed, protected by the law, a victim of retaliation has to show “adverse action.” In our area, that is usually held to mean that the employee has been fired, demoted, or denied a promotion. In extreme circumstances the courts will consider the kind of behavior that most of us recognize as “retaliation:” ostracism, snickering, relocation to a smaller office, assignment to worse tasks (or no tasks). But beware, often the kind of treatment that makes life in the workplace really unpleasant does not suffice for a retaliation claim.
Finally, the plaintiff has to establish that the adverse action was caused by the protected activity.
Though these three burdens may appear difficult, retaliation claims often are received well in court. Sometimes employers are so outraged that someone dared to complain that the retaliation is clear and unambiguous. In addition, courts may not always agree that certain behavior indicates racial bias, for example, but they do take offense at an employer retaliating against someone exercising his rights in good faith.
