Retaliation

Spell out FMLA intermittent leave timing in handbook—or risk a million-dollar mistake

03/30/2009

The 4th Circuit Court of Appeals has upheld a verdict of more than $1 million in an FMLA intermittent leave case involving a foreign adoption. The sad fact is that the employer could have avoided the entire problem by studying up on intermittent leave and adoption.

OK to transfer without fear of retaliation suit—if new job is substantially similar

03/30/2009

Ever since 2006, when the U.S. Supreme Court’s Burlington Northern and Santa Fe Railroad Co. v. White decision made it easier to prove retaliation, employees are trying to push the envelope on what constitutes retaliation. Slowly, employers are getting answers.

Set up correspondence log tracking all incoming mail, faxes and e-mails

03/26/2009

It’s common sense: You can retaliate only if you know about whatever it is you are supposedly retaliating against. If you can show you never knew an employee was engaged in an alleged protected activity, it becomes impossible for an employee
to win a retaliation claim.

Don’t promise FMLA leave if you’re not required to comply

03/26/2009

In Pennsylvania, employers that make a promise that an employee reasonably relies on may be liable if that promise isn’t fulfilled and the employee suffers harm as a result. This quasi-contract theory has FMLA implications …

Stop retaliation against workers who tip off drug use

03/20/2009

Remind managers not to punish or otherwise retaliate against employees who report suspected drug use by fellow employees. Such tip-offs may constitute protected activity, and retaliation may lead to a lawsuit.

Crack down on association discrimination—especially if there are threats of violence

03/18/2009

Employers, beware: More employees are suing over so-called association discrimination, claiming their friendships or other relationships with black employees have resulted in discrimination against them, in addition to their acquaintances. Recently, the 6th Circuit came up with guidelines for when employees can sue based on their relationships with black employees.

Documentation key to stopping that 2nd suit!

03/13/2009

Congratulations! You’ve settled a case. Now make sure the same employee doesn’t sue you again. Remind managers and supervisors to treat the employee exactly like they treat all other employees in the same position.

Transfer—without penalty—won’t make a retaliation suit

03/13/2009

An employee who files a discrimination complaint is protected from retaliation. But that doesn’t mean employers can’t make everyday moves—such as transferring someone who once complained of bias—without risking a lawsuit.

Think twice before firing workers’ comp applicant

03/12/2009

Minnesota employees are protected from being fired in retaliation for filing a workers’ compensation claim. That means employers have to think twice before discharging such an employee for anything but the most solid reasons.

Coincidental timing alone does not make a retaliation claim