New York Employment Lawyer Blog

The LawMemo Employment Law Blog is a great source to keep track of new developments in employment law. It recently provided a a summary of retaliation cases now pending before the U.S. Supreme Court - here are the issues now facing the Court:

1. Are Oral Complaints Enough?

The anti-retaliation law makes it illegal for an employer to retaliate against an employee for making a complaint about potential illegal conduct. In this case, the employee made an oral complaint about the company's time keeping practices. The company fired the employee after he made the complaint. The lower court dismissed the employee's retaliation case because his complaint was oral. The employee never filed a written complaint. The US Supreme Court will now decide if an oral complaint is sufficient or if a written complaint is necessary. I suspect that the Court will find that an oral complaint is enough. The Court's prior retaliation cases have favored employees as the Court believes that strong anti-retaliation laws are important. For more details on this case please see the LawMemo here.

2. Are Relatives and other Third Parties Also Protected from Retaliation?

In another case under review, a husband and wife both worked for the same company. The wife filed a sex discrimination charge against the company with the EEOC. The husband was fired about week after his wife filed her discrimination complaint. The husband then sued the company for retaliation. But the husband's case was dismissed by the lower courts because the husband did not file the discrimination complaint - the lower courts found that only the wife was protected by the retaliation laws. The US Supreme Court will now decide whether the husband is also protected. My prediction is that the Court will extend the reach of retaliation laws to spouses because the purpose of the retaliation laws is to encourage people to file complaints. For more information on this case, see the LawMemo here.

This video sets out the facts of typical retaliation case.  Retaliation is common and retaliation is often easier to prove than discrimination.  We like retaliation cases at our firm.   Here are the top three signs that retaliation has occurred:

1.  An employee complains about illegal workplace conduct such as discrimination, sex harassment, failure to pay overtime or other wages. 

2.   Soon after the complaint is made, the employer takes adverse employment action against that employee such as firing, demotion, assignment to less desirable work, or any other action that would tend to punish or deter others from making such complaints

3.  There were no other pre-existing disciplinary actions or issues prior to the employee’s complaint such that the employers conduct is clearly and directly linked to the employee’s complaint. 

Good retaliation cases are usually simple.   At our firm, for example we recently  represented an employee who worked for a large company and complained that her boss was sexually harassing her.   The company immediately began a campaign of retaliation by reducing her ranking on her annual evaluations and subjected her to unfounded performance complaints and ultimately the company drove this employee to quit.   We proved that this employee was retaliated against after she complained about sex harassment and she was awarded a substantial sum of money.  

One of the most common issues we hear about from workers is their fear of retaliation if they file a claim against their employer or even make an informal complaint to their employer.  New York City has a very strong anti-retaliation law that protects people.   Here is a summary of the law.

A company cannot fire, threaten to fire, demote, suspend or take any adverse action against an employee who engages in “protected activity.”   Some examples of "protected activity" under the Labor Code include:

1. Filing or threatening to file a claim or complaint with the Labor Department.
2. Taking time off from work to serve on a jury or appear as a witness in court.
3. Disclosing or discussing your wages.
4. Using or attempting to use sick leave to attend to the illness of a child, parent, spouse, domestic partner, or child of the domestic partner.
5. For complaining about safety or health conditions or practices.
6. Complaining about sex harassment or employment discrimination. 

Suppose you and your spouse work for the same company and your spouse is one of those rebel rousing whistle blower types.   First, consider finding a new job or a new spouse.  But if you can’t do either, then you should carefully track the outcome of Thompson v. North American Stainless.  

That case is pending before the U.S. Supreme Court and it involves a man who was fired shortly after his fiancee filed an EEOC charge against their common employer.   The Court will decide if the anti-retaliation provisions of Title VII extend to third-parties like husbands and wives and the like.     Thanks to Ross Runkel at the Law Memo for reporting this development. 

Retaliation cases are probably the easiest cases for employees to win. To help you understand what kind of facts can lead to a retaliation case, I will set out the 3 basic elements here. It is pretty simple.

1. Protected Activity

First, you need to have engaged in protected activity. This means that you need to have made a complaint to someone in the company (like your boss or HR) about a potential violation of your rights such as employment discrimination (age, gender, pregnancy etc...), sexual harassment or overtime violations. You don't have to prove that a violation occurred, you just have to complain about a possible violation.

2. Adverse Employment Action

Next, you have to prove that your employer did something bad to you after you complained. In New York City, the bad thing can be just about anything negative such as lowering your performance rating, transferring you to a less desirable job, changing your hours, taking away any kind of perk - pretty much anything that would reasonably deter others from making complaints will be enough. The anti-retaliation law in New York City is very broad.

3. Causal Connection

The last element of a retaliation claim is proving that your complaint (protected activity) was the cause or motivation for the adverse employment action. The point here is to show that your company did the bad thing to you soon after you complained. The closer in time the better. For example, if you complain to your boss about sexual harassment on Monday and get fired the next day, then you probably have a great retaliation case. Typically you want to see no more than a few months between the the complaint and the adverse action. But some cases have allowed 14 months to pass between the events.

These are the basics of retaliation at work in New York City. Of course, each case if different, but these are the general rules. You can see a short video regarding a typical retaliation case at our website here. Retaliation cases are also known to produce some of the highest verdicts.

Right now I am working on a case that involves New York City's anti-retaliation law. This law was recently amended to expand it's protection of employees who report or file an employment discrimination or sexual harassment claim. Check out our website to see a video of a typical retaliation case.

The goal of the amended City law is to encourage employees to report and prosecute civil rights violations at work. The City law prohibits employers from taking any type of adverse action that might reasonably deter a person from reporting civil rights violations. This is a very broad law that appears to outlaw virtually any type of retaliatory conduct by employers. This marks a real expansion of anti-retaliation law. In the past, anti-retaliation laws required some kind of substantial retaliatory conduct such as a demotion, reduction in pay or even termination of employment. Now, almost any kind of retaliatory conduct is prohibited. This is good for New York City employees and bad for employers. At our law firm, retaliation cases are fast becoming our favorite cases.

A former New York Knicks executive was awarded $11.6 million after a New York federal court jury found that Thomas and Madison Square Garden sexually harassed Browne Sanders, but it decided only MSG and chairman James Dolan should pay for the harassment and retaliation. Ms. Browne Sanders said that this was a "wake-up call" for corporate America as well as sexually harassed women.

"I hope it has an impact ... for employers across industry to take heed and pay attention and take responsibility for the workplace," Anucha Browne Sanders said on ABC's "Good Morning America." She added that she hoped her case also would embolden women to speak up about sexual harassment.

"Silence never makes change," she said.

Browne Sanders said she believed most employers understood what constituted unacceptable behavior, but she thought the verdict would serve as "a wake-up call to those environments that aren't civil."

Madison Square Garden owes $6 million for condoning a hostile work environment and $2.6 million for retaliation. Dolan, the CEO of Garden owner Cablevision Systems Corp., must pay an additional $3 million.

The jury of four women and three men needed roughly two days to decide on the allegations, but only about an hour to pile on the damages at the close of a three-week trial rife with accounts of crude language and sexual escapades behind the scenes of a storied franchise. Jurors declined to talk about their deliberations as they left the courthouse amid a media frenzy.

A New York Court recently held that a retaliation case could proceed to trial. The court applied the new broad standard set forth in Burlington Northern and Santa Fe Ry Co. v. White 126 S.Ct. 2405 (2006).
The plaintiff in that case, Moore v. Consolidated Edison Co. 00 Civ. 7384, complained that her boss made racially and sexually offensive comments to her from 1997 to 2000. She complained several times to her superiors - but she refused to cooperate with internal EEO investigations. Each investigation found that no violations had occurred.

After she complained, things began to change at work. Her performance evaluations became mediocre and then negative and finally a warning of termination. Finally she was fired in 2003. The company cited her difficult and combative behavior and that her conduct had damaged the morale of the department. The court found that there was "no question" that Moore made out a prima facie case of retaliation.

Continue reading "New York Retaliation Case Goes to Trial" »