Employment Law Bits

Employer caution: beware taking action that may entice a former employee to file a retaliation claim

A recent Massachusetts Supreme Judicial Court decision has expanded the scope of potential retaliation claims under the Massachusetts Fair Employment Practices Act. In Psy-Ed Corp. v. Klein, the court held that an ex-employee can bring a retaliation claim against a former employer for actions taken after the termination of employment, and that instituting baseless litigation against an ex-employee can serve as the basis for a retaliation claim.

The court reasoned that the statute did not require that an employment relationship exist "at the time of the wrongful conduct, or at any other time." The court also concluded that filing baseless litigation could serve as the "adverse action" sufficient to support a claim for retaliation. 

The Psy-Ed ruling opens the door to new types of retaliation claims against Massachusetts employers based on alleged conduct that occurs long after the end of the employment relationship. Employers could be subject to post-employment retaliation claims for things such as giving a negative job reference or informing a former employee's new or prospective employer about the former employee's protected activity. 

An employee may prevail on a retaliation count without a finding of discrimination, making retaliation claims particularly problematic for employers.To protect themselves from liability employers should implement strong anti-retaliation policies. While employers may be tempted to file a counterclaim against a former employee who has initiated a lawsuit, they should always ensure that a solid evidentiary basis exists to support the claims bring and damages they seek. Filing a baseless claim against a former employee could also result in a retaliation claim.

 

Photo credit: Microsoft

 

OSHA to expand whistleblower protection program

The whistleblower provisions laws enacted by Congress prohibit employers from retaliating against employees who raise various protected concerns or provide protected information to the employer or the government. “The ability of workers to speak out and exercise their legal rights without fear of retaliation is crucial to many of the legal protections and safeguards that all Americans value.”

Currently, the Occupational Safety and Health Administration (OSHA) enforces the whistleblower statutes that protect employees who report violations of various work place safety, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. As part of a continuing effort to improve the Whistleblower Protection Program, on August 1, 2011 OSHA announced that it is implementing additional measures to strengthen the program and is releasing a detailed review. These measures are anticipated to significantly strengthen OSHA’s enforcement of the whistleblower laws. 

The changes include several different measures. The first measure is restructuring to improve the administration and statute of the program. This includes requiring that the Whistleblower Protection Program will report directly to the assistant secretary instead of being housed in the Directorate of Enforcement, as well as increasing the number of investigators. Another measure is increasing training by holding a national whistleblower training conference, as well as offering other investigator training events. 

OSHA will also issue a new edition of the Whistleblower Investigations Manual that updates current procedures and includes information on the new laws that have been enacted since the last update in 2003. The new manual will provide further guidance on the enforcement program to ensure consistency and quality of investigations. Lastly, the data collection system has been modified and the audit program strengthened and expanded to ensure complaints are handled in a timely manner. 

 

Photo credit: Microsoft

Employers must beware retaliation claims by former employees as well as current ones

A Massachusetts’ Supreme Court decision from May 2011 made it clear that employers are liable for retaliation against former employees. This decision established that employees are protected from retaliation even when the alleged misconduct occurs years after the employment has been terminated.
The court’s decision will affect employees’ ability to file claims against previous employers. Employees and their attorneys will be able to look for illegal conduct in places they may previously have ignored. 

Employers should be able to prevent suit, however, by following the same rules they should have been following before the court’s decision was issued, which has made it clear that both discrimination and retaliation will not be tolerated. 

Employers should abide by a common sense approach to problems that do arise. They should address any discrimination complaint thoroughly and never take a negative job action against an employee involved in a discrimination complaint without first consulting with an employment law attorney.  

In the May 2011 case, retaliation was alleged by a former worker who supported the discrimination complaint of a fellow employee. He alleged that a buy-out agreement he had entered into with the employer was wrongly terminated nearly two years after his employment ended because of his involvement in the discrimination case. A trial court judge dismissed the retaliation complaint after concluding that post-employment retaliation was not prohibited by Massachusetts law. In its reversal of that decision, the Massachusetts Supreme Court found that the law contains no such limitation on retaliation suits.

 

Photo credit: Microsoft