With the inclusion of anti-retaliation provisions, Congress protected the rights granted in several employment related statues. An anti-retaliation provision prohibits any adverse employment action taken against an employee because that employee either opposed a practice prohibited by law or participated in the enforcement of a right provided by law. Some statutes provide both “opposition” and “participation” protections such as the Americans with Disabilities Act (ADA) 42 U.S.C. § 12203(a), 42 U.S.C § 1981, USERRA 38 USC § 4311(b), American Discrimination in Employment Act (ADEA), Federal Labor Standards Act (FLSA) and Title VII of the Civil Rights Act of 1964. Some statutes include only a “participation” protection such as the Family Medical Leave Act 29 U.S.C. § 2615(a)(1)-(2).
To prove retaliation, an employee can either present overt (also known as direct) evidence of the employer’s intent to retaliate. Or, the employee can provide circumstantial (also known as indirect) evidence, which can then be rebutted by the employer. In order to establish the basis or “prima facie” circumstances, an employee must prove the following: (1) that she engaged in statutorily protected conduct, (2) that she suffered an adverse employment action, and (3) that a causal connection exists between the two.
The ADEA, ADA, FMLA and Title VII require a “but for” causal connection not just the lesser “motivating factor”. For FMLA claims, the employee must first prove that he was eligible and entitled to FMLA leave before proving the remaining parts of the prima facie case.
Once the employee has established a prima facie case, the burden shifts to the employer to articulate a non-discriminatory reason for the adverse action. If the employer does so, the burden shifts back to the employee to demonstrate that the employer’s proffered reason was pretextual by presenting evidence sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision.
An “adverse employment action” is any type of action that would have made a reasonable employee reluctant oppose the practice or participate in the enforcement of the law. Adverse actions take many forms. These include, but are not limited to, termination of employment, demotion, failure to hire or rehire, failure to promote, reduction or denial of benefits, etc. While valid business decisions will necessarily require some of these adverse actions, the employer must demonstrate that its reasons are indeed valid and not pretext for retaliation.
The devil is really in the details when it comes to pretext. Some of the most common tell-tale signs are: suspicious timing, inconsistent reasons, comments that call stated reason into question, conflicting evidence such as citing poor performance but having no record of discipline, among others.
Remedies available to an employee who is successful on a claim of retaliation would be entitled to extensive damages.
John Doe is a manager who attempts to be efficient at his job. He understands that personnel management requires a certain diplomacy and finesse. But when he speaks to in-house counsel Jane Smith about a recent EEOC charge filed against their company she is quick to give him several rigid rules to avoid the perilous pitfalls of performance appraisals:
If it’s bad, say so
A performance appraisal is immediately evidence in an employment law case. Thus, whenever, and I mean each and every time that a performance appraisal is being conducted, managers must give their honest assessment. If performance is bad, then managers must make that clear in writing during the appraisal. This writing should state the standard to be attained, should delineate how the employee has failed to meet the requisite standard and lastly, what the employee must do to cure the error.
For instance, during unemployment insurance benefit appeals before the Georgia Department of Labor, where misconduct is alleged, the evaluations if done properly could demonstrate that the employee was aware of the standard to be met, did not meet the standard, was given an opportunity to cure the deficiency and did not do so.
2. Don’t ignore a litigation hold notice
A litigation hold is a written directive advising custodians of certain documents and electronically-stored information (“ESI”) to preserve potentially relevant evidence in anticipation of future litigation. Performance appraisals are frequently relevant in wrongful termination cases, especially those cases in which the employer alleges poor performance as the non-discriminatory or non-retaliatory reason for termination of employment. These evaluations are thus frequently the subject of discovery requests. Medical records are another class of usually relevant documents especially in a disability discrimination case. Several types of documents fit the bill depending on the issues raised in the suit.
Once an employer receives notice of a potential legal claim, it does have a duty to preserve the relevant documents, failing to do so could trigger an adverse inference that the documents would have favored the employee. Also, sanctions could be levied against the employer and its legal counsel.
3. Educate managers to apply objective standards uniformly
Performance appraisals are generally governed by employer policies; there are no federal or state laws determining how or when a performance appraisal must be conducted. However, there are laws implicated by the manner in which employers carry out performance appraisals. For instance, Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, national origin, sex, etc., the Age Discrimination in Employment Act prohibits discrimination on the basis of age, the Americans with Disabilities Act prohibits discrimination on the basis of a real or perceived disability. Each of these laws could be violated if the employer scores the employee negatively because of one or more of these protected categories.
All told, employers need good counsel to create performance appraisal templates, to educate supervisors and managers on its use and to maintain compliance in the event of a dispute.
How do I complete a background check?
There are several ways for employers to gather information on the background of an applicant for employment. An employer can embark upon the task solo, with the prevalence of online data contact information for alleged previous employers, social media posts, previous and pending civil actions, are all available online. Most frequently however due to the convenience, accuracy and time constraints, employers hire third-party vendors to conduct background checks on applicants.
Background checks reveal important information. However, there are legal limitations on employers obtaining and using this type of information. When employers hire a third party to conduct a background check, or obtain reports from outside agencies, such reports are subject to the federal Fair Credit Reporting Act (FCRA) and state laws. Also, in Georgia, employers must comply with laws concerning criminal background checks and driver’s record information.
The Fair Credit and Reporting Act (FCRA) sets the standards for employment screening for non-public information. Prior to doing a background or credit check, employers must request and receive written permission from the applicant to complete a background check. In the event the employer elects not hire the applicant, the employer is required to provide the applicant with a copy of the report(s) that were utilized in the employer’s decision not to offer employment.
Title VII of the Civil Rights Act prohibits discrimination in employment on the basis of several grounds, including race. Thus, employers must request background checks of all applicants equally and employers are prohibited from utilizing the information to discriminate against applicants.
Under Georgia law, private individuals and businesses may request criminal history records by submitting fingerprints of the person whose records are requested or a signed consent form with the person’s full name, address, Social Security number, and date of birth to the Georgia Crime Information Center (GCIC). Except as specifically authorized by law for certain offenses, the GCIC will not release records of arrest or charges that did not result in a conviction, or sentences for certain first offender crimes, or for crimes where the individual was later exonerated, or the charges were discharged without court adjudication of guilt O.C.G.A. 35-3-34 (2010).
Employer requirements for the Family Medical Leave Act (FMLA) may seem straightforward, but managing them, including keeping up with current government regulations and handling all the necessary administration is challenging and overwhelming. The FMLA is filled with legal implications that companies must completely understand. The paperwork alone can be overwhelming for the human resources and benefits departments. Moreover, federal and state laws often overlap, which further complicates the administration of the FMLA. A company that fails to comply with the FMLA subjects itself to costly litigation. Furthermore, there have been cases in which a direct supervisor was personally sued by an employee for failing to comply with FMLA laws.
Therefore, it is important to have the knowledge and resources to monitor and understand the applicable laws to ensure that the company is in compliance with the FMLA. The following ten best practices will help your company ensure compliance with the FMLA.
1. Stay updated on the laws.If a company operates in more than one state, the company must ensure that in addition to being in compliance with the federal version of the FMLA, the company must also be in compliance with the state law version of the FMLA.
2. Establish FMLA procedures and consistently apply them.One of the biggest mistakes companies make is delegate several people within the company to administer the company’s family medical leave practices. Therefore, ongoing training and having specific procedures in place for how your company will manage the FMLA can help alleviate these issues.
3. Require medical certification from the health care provider to validate that the leave is necessary. Under the FMLA laws, employers have the right to require that the employee secure a medical certification. Employers must allow employees at least 15 days to obtain the proper medical certification and provide it to the employer. Without a completed medical certificate, FMLA requested leave can be denied.
4. Document everything.Every interaction, including every telephone call with the employee who is out on leave should be documented. This practice reduces confusion as to policies and sets forth what information has been shared with the employee.
5. Educate management.The company supervisors must understand their role when one of their employees’ requests leave under the FMLA. Companies should also consider “just in time knowledge.” This just in time practice requires that supervisors immediately notify the benefits manager when an employee requests FMLA.
6. Consider allowing supervisors to directly communicate with employees while they are on leave.Allowing a supervisor to reach out to an employee who is out on FMLA has huge benefits. For example, it builds morale as this practice demonstrates that the manger cares about the well being of the employee and their situation. Consequently, this sets up the employee to feel good about returning to work.
7. Gather the stakeholders. The company is responsible for following FMLA laws. Although the responsibility primarily falls within the duties of the human resources and legal teams, payroll, finance and benefits also have an important role and all of these teams should meet periodically to assess how the program is being administered.
8. Review your company’s leave policies regularly. At least once per year, the company needs to review their policies and the relevant paperwork associated with the administration of the FMLA.
9. Maintain confidentiality. It is illegal for employers to share any information about the employee’s medical condition.
10. Consider outsourcing. An outside firm can assist your company determine employee eligibility and to review the associated paperwork.
