Protecting employees from retaliation when they report misconduct

Q: AS a newly hired employee, I have seen discriminatory practices against women and older persons in the company. I reported these to upper management and I was told something would be done. After following up on my report, I was told I was fired for “not being a team player.” What are my rights?

A: You are to be commended for speaking up on behalf of your co-workers. An employee who asserts his or her rights under the law, or who challenges an employer’s illegal conduct may, however, face demotion or termination. In this case, the employer’s conduct constituted unlawful retaliation.

In a retaliation claim, an employee must prove that she/he engaged in protected activity.

Engaging in “protected activity” means that the employee must complain or oppose a practice which is forbidden by law (e.g. sex, race, or age discrimination). The complaint may be internal and made to managers or officers in the company. Or the complaint could be external and made to government agencies.

Additionally, courts have held that “protected activity” includes complaints or opposition to conduct the employee “reasonably” and in “good faith” believes to be unlawful, even if the conduct is not actually prohibited under the law.

When engaging in a protected activity, such as requesting wage payments due or complaining about safety issues, employees should document their complaints or claims.

Some employees may think that anonymity protects them. However, the opposite is true.

Presenting complaints in writing, even by email, if expressed in a professional manner, will make it harder for the employer to ignore. More importantly, it creates a record of communications that at a future time will be reviewed to determine the true reasons why any action was taken against the employee.

It is true that employers generally have the power to terminate employees at will. However, employers must not be motivated by a discriminatory or retaliatory reason for doing so. In this instance, the termination becomes unlawful, and may subject the employer to liability for damages. Employees who prove they were retaliated and wrongfully terminated may recover loss of earnings, emotional distress, and in certain cases, attorneys’ fees and costs, and punitive damages.

Consider this case reported by the Daily Journal:

Debra Loveless was hired by Kaiser Permanente to be the manager for its Equal Employment and Opportunity Investigations Unit in Southern California. Her unit investigated claims of discrimination and harassment at Kaiser. As manager, Loveless insisted that her investigators conduct more thorough investigations regarding these complaints. Loveless also challenged her superior when he asked an older employee about her age and when she planned to retire. Loveless lobbied for a gender and race equity raise for an investigator who was being paid approximately $10,000 less than her male Caucasian counterpart. On another matter, she objected to the proposed misclassification of an administrative assistant employee.

Loveless was later suspended and eventually fired while she was out on medical leave. The employer justified her termination as due to poor performance and inability to lead her team. However during her tenure, she received three performance reviews ranging from excellent to exceptional and was never disciplined for anything.

Loveless sued her employer for wrongful termination based on retaliation and claimed economic losses and emotional distress from the employer’s conduct. The case went to trial, and the jury found in Loveless’ favor, awarding her a total of $366,813 for both economic and non-economic damages.

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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com or our Facebook page Joe Sayas Law. [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is the recipient of PABA’s Community Champion Award for 2016.]

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