New York Employment Lawyer Blog

On January 24, 2011, in Thompson v. North American Stainless, LP, the United States Supreme Court held that an employee who does not directly engage in a protected activity can still assert a claim for retaliation under Title VII of the Civil Rights Act as someone who falls within the "zone of interests" of protection afforded by the statute. More specifically, the Court found that an employee who was fired after his fiancé filed a sex discrimination charge with the EEOC could bring a claim for unlawful retaliation under Title VII.

In this case, the Plaintiff and his fiancé both worked for Defendant. The Plaintiff's fiancé filed a charge of discrimination with the EEOC, and three weeks later, the Defendant terminated Plaintiff's employment. The Plaintiff thereafter brought a lawsuit under Title VII, claiming that he was fired in retaliation for his fiancé filing her complaint. The Defendant argued that only the employee who actually complained could sue - not the complaining party's fiancé.

The Supreme Court held that "Title VII's anti-retaliation provision must be construed to cover a broad range of employer conduct." The statute "prohibits any employer action that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." The Court then noted, "We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired." In other words, the purpose of Title VII's anti-retaliation provision would be undermined if an employer could simply fire a third party to punish an employee who complains about discrimination.

The Court determined that an employee is thus eligible to bring a Title VII claim when that person "falls within the 'zone of interests' sought to be protected by the statutory provision." Since Title VII was meant to protect employees from unlawful actions by their employers, and the Plaintiff was an employee of Defendant, the Plaintiff was protected by the statute.

However, the Court also stated: "Although we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VII. . . . Given the broad statutory test and the variety of workplace contexts in which retaliation may occur, Title VII's anti-retaliation provision is simply not reducible to a comprehensive set of clear rules." In layman's terms, there is no bright line test for determining who is protected from retaliation under Title VII.

As we now know that third parties have standing to sue for retaliation under Title VII, it's more important than ever for employers to consult with a New York employment attorney before taking any adverse employment action against a spouse, fiancé, or family member of an employee who recently complained.

Under the Occupational Safety and Health Act of 1970 ("OSH Act"), employers are responsible for providing safe and healthy workplaces for their employees. Section 11(c) of the OSH Act, which is enforced by the Occupational Safety and Health Administration ("OSHA"), prohibits retaliation against employees for filing a health or safety complaint or for exercising a wide range of other rights afforded to them by the OSH Act. Basically, it protects an employee's right to file a complaint with OSHA or to bring health and safety issues to the attention of his or her employer without fear of termination or other retaliation.

On October 14, 2010, OSHA announced that it obtained a consent judgment ordering The John Galt Corp. and two of its former managers to compensate a worker who was fired for raising a health and safety issue during an asbestos removal project that the company oversaw in New York City.

In this case, the worker alleged that he had been fired after requesting additional respirator cartridges for himself and for fellow workers performing asbestos removal at the site. OSHA brought a legal action, and as a result, the defendants signed a consent judgment that orders them to pay the worker $55,000 in back wages and expunge all references to suspension or dismissal from his personnel file. The judgment also prohibits the defendants from discriminating against employees who file a complaint with OSHA, participate in an OSHA inspection or otherwise exercise their rights under Section 11(c) of the OSH Act.

On October 20, 2010, OSHA announced that it filed a lawsuit against Promesa Systems Inc., a New York City nonprofit organization providing care to individuals with developmental disabilities, for allegedly firing an employee who voiced workplace safety and health concerns and filed a complaint with OSHA. A few days after the employee advised the defendants that she would consult OSHA regarding an assignment that they had given her, the defendants suspended her during an internal investigation which included a review of her on-the-job performance. At the end of the company's investigation, the employee was fired. OSHA found evidence that the internal probe was used as a pretext to terminate the employee for her whistleblower actions.

The complaint seeks a judgment ordering all appropriate relief for the worker, including reinstatement, back pay with interest and compensatory damages, as well as prohibiting the defendants from future violations and having them post and comply with a workplace notice that they will not discriminate against employees who engage in protected safety and health activities.

It is always smart for employers to consult with a New York City employment attorney before terminating or disciplining an employee who has recently complained.

As most employers are aware, New York is an "employment-at-will" state. This means that without a contract (or collective bargaining agreement) restricting the reasons for termination, an employer has the right to discharge an employee at any time for any reason, even if that reason seems completely arbitrary and unfair. In fact, an employer may even terminate an employee for no reason at all. On the same note, employees in New York are equally free to quit their jobs at any time without being required to explain or defend their decision.

However, although it's an at-will state, it is nonetheless so important, when disciplining or terminating an employee, for employers in New York to provide that employee with a coherent and consistent explanation for the adverse employment action taken.

Why? Because any inconsistent or conflicting reasons given in the future will only strengthen an employee's claim for discrimination or unlawful retaliation. And believe me when I say that plaintiffs' attorneys jump all over this and will exploit the inconsistencies to the end.

In order to prove discrimination, the employee must first establish a prima-facie case by demonstrating that: (1) she is a member of a protected class; (2) her job performance was satisfactory; (3) she suffered an adverse employment action; and (4) the action occurred under conditions giving rise to an inference of discrimination. If the plaintiff makes out a prima-facie case, the burden shifts to the employer to provide a legitimate, non-discriminatory reason for the action. If the employer makes such a showing, the burden shifts back to the employee to show that the employer's proffered reason is pretextual.

Pretext generally refers to a reason that is false and offered to cover up the true motives or intentions. Pretext can be established by showing that the employer's explanation for termination is not credible. And here's the kicker - New York courts have held that an employee may show pretext by demonstrating inconsistencies, incoherencies, or contradictions in the employer's proffered "legitimate" reasons for its action. It is thus reasonable for a jury to find the proffered reason(s) unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.

As a New York City employment attorney, I always advise employers in New York to decide on a reason for termination, give that reason to the employee at the time of termination, and never contradict or change that reason in the future. By neglecting to give the employee any reason for the termination, employers only leave the door open for that employee to allege discrimination in the future.

On July 7, 2010, the Occupational Safety and Health Administration (OSHA) announced the launching of a new website that provides information for employees who complain about health and safety violations in the workplace.

Under the Occupational Safety and Health Act (OSH Act), employees may file complaints with OSHA if they believe their employer has retaliated against them for raising their rights pursuant to the OSH Act. These rights include filing health or safety complaints with OSHA, seeking an OSHA inspection, participating in an OSHA inspection, participating or testifying in any proceeding related to safety or health, or reporting an injury or illness to their employer.

OSHA also enforces the whistleblowing provisions of eighteen other statutes, protecting employees who report violations related to air carrier safety, commercial motor carriers, asbestos in school, consumer products, environmental safety, corporate fraud, health care reform, nuclear energy, pipeline safety, public transportation, railroad safety, and securities laws.

A person filing a complaint of retaliation with OSHA will be required to show that he or she engaged in a protected activity, the employer knew about that activity, the employer subjected him or her to an adverse employment action, the protected activity contributed to the adverse employment action, and the adverse employment action occurred within the last 30 days (some deadlines differ depending upon the statute alleged to have been violated).

An adverse employment action is generally defined as any action that would dissuade a reasonable employee from engaging in the protected activity. According to the site, examples include:

• Firing or laying off
• Blacklisting
• Demoting
• Denying overtime or promotion
• Disciplining
• Denial of benefits
• Failure to hire or rehire
• Intimidation
• Reassignment affecting prospects for promotion
• Reducing pay or hours

Now that OSHA is making an active effort to encourage employees to complain to them about health and safety violations and unlawful retaliation, it's more important than ever for employers to make sure there are comprehensive complaint procedures in place so that disputes get resolved internally before their employees decide to file with OSHA.

As a New York whistleblower attorney, the new whistleblower protections contained in The Dodd-Frank Wall Street Reform and Consumer Protection Act ("Act"), signed into law by President Obama, are of special interest to me. The new law includes a number of provisions designed to protect employees who report fraud and securities law violations to the U.S. Securities and Exchange Commission ("SEC") and commodities board.

These sections close loopholes in the anti-retaliation provisions in the Sarbanes-Oxley Act of 2002 ("SOX"), a corporate whistleblower law, by covering subsidiaries of publicly traded companies. Until now, most courts have interpreted those provisions as applying only to the parent entity and not to its subsidiaries. Also important is the fact that it gives whistleblowers a private cause of action for damages stemming from any illegal retaliation.

The Act also includes a qui-tam provision that provides monetary rewards for whistleblowers who disclose original information that the government did not know about concerning major fraud in the commodity and stock exchanges. Under the Act, the SEC will pay whistleblowers cash rewards of between 10% and 30% percent of any monetary sanctions in excess of $1,000,000 that the government, as a result of the whistleblowers' assistance, recovers through either civil or criminal proceedings.

Lastly, the Act also prohibits mandatory arbitration on Wall Street related whistleblower claims, permits jury trials under SOX, requires the SEC to establish a whistleblower protection office, and sets a three-year statute of limitations for retaliation cases under the False Claims Act.