From the Los Angeles Daily Journal

"Retaliation Response --
A company must show that an action against a worker was unrelated to his or her protected action" by Richard S. Rosenberg and Christine T. Hoeffner

One of the most vexing employee claims of all is the claim of retaliation. A close cousin of the so-called whistle blower claim, the essence of a retaliation claim is that some adverse action befell the employee because the employee either engaged in some activity protected by law or helped a coworker do the same. These claims are especially difficult to defend as they turn entirely on the firm's motivation. In essence, the jury is asked to determine why the firm did (or in some cases did not) do what it did.


Recent cases demonstrate how even seemingly trivial and unconnected employment actions or events can be strung together later on to form the building blocks of a retaliation claim. Ray v. Henderson (9th Cir. July 7, 2000) 2000 Daily Journal D.A.R. 7393. Invariably, the employee will point to some alleged comment or action either by their supervisor or someone else in management which the employee asserts reveals the raison d'etre for whatever is at issue. While the burden of proving the requisite retaliatory motive always remains with the employee, judges are reluctant to throw out a motive case on summary judgment if the employee presents any evidence which might tie the employer's actions to the alleged retaliatory motive. Technical burdens of proof provide little consolation to the firm that has to shoulder the expense and inconvenience of a jury trial. In the end, the firm must be able to convincingly demonstrate that whatever happened to the employee had nothing whatsoever to do with the employee's earlier protected action.


Statutory Retaliation. Virtually every employment law has an anti retaliation provision prohibiting adverse action against an employee because the employee asserted a claim under the statute or helped another do so. Government Code Section 12940(f); 42 U.S.C. Section 2000e-3(a). These statutes also prohibit the firm from taking adverse action against an employee merely for taking advantage of some right afforded under a statute (e.g., taking a maternity leave) or voicing opposition to some action by the employer toward the employee or a coworker that the employee views as across the line (e.g., protesting a sexual advance or the firm's minority hiring practices). Interestingly, the employee does not have to be legally correct in their assessment of the matter. It is enough that the employee reasonably believes that the action being challenged was illegal. Trent v.Valley Electric Association, Inc. (9th Cir. 1994) 41 F.3d 524, 526.


Statutory retaliation claims also can be made when the firm takes action against an employee who has initiated a claim against the firm with a government agency or in court, or helped a coworker do so. This could be over something as routine as terminating the insurance benefits of an employee who is out on a long term workers' compensation leave of absence, or something more complex like not giving a raise at annual review time to the salaried paralegal who has filed an overtime pay claim with the Labor Commissioner.


Public Policy Claims. This form of retaliation claim sounds vaguely like a whistle blower claim. In this fact pattern, the employee suffers some adverse action after voicing concern over a perceived illegal or unethical practice. Or, the employee is actually asked to participate and negative consequences occur when the employee refuses. For example, a notary in the office is asked to attest to a signature he did not actually witness and a short while later is rated as "uncooperative" and "not a team player" during his annual review. Or, an associate is reassigned to a less prominent department of the firm, and eventually passed over for partner, after accusing a partner of unethical billing practices. Notably, these retaliation claims do not have to be hinged on the employee asserting a right under an employment statute. Rather, these claims are premised upon generalized notions of public policy. All that is needed is that the action has a foundation in a statute. The California Supreme Court has made it clear that it is never legal to require an employee to violate the law or participate in an employer's effort to do the same. When this occurs, the employee can file a common law public policy claim and seek the full array of tort damages. Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167. This is so, even if the statute does not independently provide a right of recovery. Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66. And, although the federal and state job bias statutes have statutory prerequisites for recovery, these statutory limitations do not preempt or bar the employee from seeking common law recovery based upon a violation of these laws. Stevenson v. Superior Court (1997) 16 Cal.4th 880; Rojo v. Kliger (1990) 52 Cal.3d 65. Also, these claims are not limited just to termination. The California Supreme Court made clear several years ago that lesser actions (e.g., demotion) also may form the foundation of a claim. Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454. Thus, before taking action, the firm ought to inventory whether the employee has ever made such a claim and be prepared to demonstrate that this was not a factor in the decision.


Harassment. Many employment laws expressly prohibit workplace harassment on the basis of one's sexual orientation, race, gender, religion and national origin. Government Code Section 12940 et seq., Title VII, 42 U.S.C. Section 2000 et seq. In this type of claim, the employee alleges that a series of bad things happened because the employee took advantage of a statutory right, e.g., taking a family leave or resisting a supervisor's sexual advances. The employee will then allege that the firm (or a particular supervisor) engaged in a series of bad acts directed at him or her in retaliation for having taken refuge in the law. One recent case extended this action further by holding that retaliatory acts by (non-management) coworkers could form the basis of a retaliation claim. Fielder v. UAL Corp., (9th Cir, July 10, 2000) 2000 Daily Journal D.A.R. 7495.


The significance of this distinction is perhaps most relevant to individual managers and supervisors who are named as individual defendants in the employee's claim. The California Supreme Court ruled last year that individual supervisors cannot be held personally liable under the Fair Employment and Housing Act for their acts of discrimination, but left unanswered whether they can be personally liable for their acts of harassment. Reno v. Baird (1998) 18 Cal.4th 640; Carrisales v. Department of Correction (1999) 21 Cal.4th 1132. The line between what is harassment and discrimination is blurred when acts of retaliation by a supervisor are claimed to be part of a pattern of harassment.


In examining potential retaliation claims, the firm should ask the following questions:


? Has the employee asked for time off and been refused? Employee medical leave is regulated under the Fair Employment and Housing Act, the Moore-Brown-Roberti Family Rights Act (Government Code Sections 12945.1, 12945.2) and the Federal Family and Medical Leave Act (29 U.S. C. Section 2601). Leaves for pregnancy and child birth related matters are also regulated by FEHA (Government Code Section 12495(b)(2)) and the federal job bias statute Title VII (42 U.S.C. Section 2000e(k)). Leaves for alcohol and drug rehabilitation are regulated under Labor Code Section 1025. State and federal disability laws also could be implicated in the case of alcoholism. Government Code Section 12926; 42 U.S.C. Section 12114(c); 29 C.F.R. Section 1630.16(b)(4).


? Has an employee experienced an adverse employment action after taking advantage of the numerous time off laws? An employer may not punish an employee who takes time off as permitted by statute.


? Does the firm sponsor social functions that employees are encouraged to attend? If so, injuries occurring at those functions may be covered by workers' compensation laws. Labor Code Section 3200(a)(9). Also, some of the most embarrassing or difficult to justify events may occur during off-hours social functions. Drinking and socializing often lead to horseplay, off-color comments, and other behavior that would not generally occur during regular office hours. Remember, with motive being the key element, all communications come under scrutiny. Also, the fact that troublesome behavior may occur outside of normal business hours (and off premises) does not prevent an employee from relying on and emphasizing it in litigation, especially where the social event is sponsored by the employer. The loose, and at times ill considered behavior during social events often is the "smoking gun" in an employee's sexual harassment, discrimination, or retaliation claim.


? Does the employee have a disability, injury, or illness, or has the employee filed a workers' compensation claim? Employers cannot take adverse action against an employee because the employee made a workers' compensation claim, or testified in another employee's claim. In addition to monetary penalties, to do so is a crime. Labor Code Section 132a. Under the federal and state family leave laws, employees have the right to take off up to twelve weeks per year for their personal illness and the firm must hold their job open in all but the most extraordinary of circumstances. The disability discrimination provisions of the FEHA and the federal Americans with Disabilities Act (42 U.S.C. Section 12112), require reasonable accommodation of employee disabilities (including time off) unless the employer can demonstrate an unreasonable hardship.


? Has an employee asked for access to his or her personnel file and been denied? Employees are entitled to access to their personnel files at reasonable times. Labor Code Section 1198.5. Has the employee received negative verbal or written evaluations following some protected behavior? Has their promotional or career path been altered? Has the individual's compensation been adversely affected? These are often claimed to be "adverse employment actions" in support of a retaliation claim.


? Has the employee raised questions about wages, benefits, unions, ethical issues, business practices, billing practices, safety issues, discriminatory practices, business compliance issues of any sort, or claimed that someone in the firm was engaged in illegal or other improper activities? Employers are prohibited from punishing employees for asserting wage, benefits, or overtime issues. Labor Code Section 200 et seq.; Phillips v. Gemini Moving Specialists (1998) 63 Cal.App.4th 563. Employers are also prohibited from punishing employees for raising issues as to whether the firm has violated statutes, regulations, or other laws. Tameny. A recent decision of the National Labor Relations Board holds that employees may insist upon the presence of a coworker during any investigatory interview where discipline might result. Epilepsy Foundation of Northeast Ohio 331 NLRB No. 92. (July 10, 2000).


? Has the employee complained about his or her own treatment or the treatment of another employee? An employer is prohibited from retaliating against an employee who complains of behavior the employee believes to be discriminatory or harassing, and as to others as well. Government Code Section 12940(f); 42 U.S.C. Section 2000e-3(a). Nor may an employer take action against an employee because the employee has raised a safety issue. Labor Code Section 6310; Hentzel v. Singer (1982) 138 Cal.App.3d 290.


? Has employment been denied or has an employee been denied an advantage or adverse action taken because a person is perceived to have a health problem? The ADA and recent amendments to FEHA now prohibit employers from discriminating based on a perceived disability or covered medical condition.


Richard S. Rosenberg is a founding partner of the Universal City management labor law firm Ballard, Rosenberg, Golper & Savitt. Christine T. Hoeffner, a Certified Appellate Specialist, is a senior associate with the firm

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