Partner and Trial Practice Group Co-Chair Brent Hannafan served as...
The De Niro Verdict: A Q&A with Brent Hannafan
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Retaliation Law
Which Employer Actions Qualify as “Adverse Employment Actions” for a Retaliation Claim?
Rarely when faced with an employee’s opposition to discrimination or other unlawful activity do employers fire the employee by telling them, “I am firing you because of your opposition to my unlawful activity.” Employers are usually subtler when they want to stop employees from speaking up. For example, they may change an employee’s job duties,[1] place a negative letter in an employee’s file,[2] or move an employee’s office to a less desirable location.[3] Most people would think these negative consequences are serious and would give rise to a claim for retaliation. Unfortunately, these issues are less straightforward than they should be because courts seldom reflect the views of most people. Under Title VII and other employment laws, an employer cannot “discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice[.]” 42 U.S.C.§ 2000e-3(a). An employee alleging retaliation under Title VII must therefore show that “(1) she engaged in a protected activity; (2) her employer was aware of this activity; (3) the employer took adverse employment action against her; and (4) a causal connection exists between the alleged adverse action and the protected activity.”[4] In a previous blog post, I […]
How the Ninth Circuit’s Decision in A.B. v. Hawaii State Department of Education Recognizes the Reality of Title IX Litigation
In one of few recent victories for Title IX plaintiffs, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit Court ruled in favor of four student athletes at James Campbell High School. The Ninth Circuit held that the district court erred in rejecting the plaintiffs’ request for class certification on their Title IX retaliation claims. A. B. v. Hawaii State Department of Education signals a major shift for plaintiffs in Title IX cases wishing to avail themselves of the benefits of class action lawsuits against educational institutions. What Does Title IX of the Education Amendments of 1972 Prohibit? Title IX of the Education Amendments of 1972 prohibits colleges, universities, and schools that receive federal funding from engaging in gender discrimination. Class action lawsuits are a useful tool for Title IX plaintiffs seeking relief for both the individual harm they experienced and on behalf of fellow students who also experienced harm from Title IX violations. To bring a class action, plaintiffs must satisfy the general requirements of Federal Rule of Civil Procedure 23(a): (1) the proposed class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to […]
Labor Law Amendment Grows and Extends Whistleblower Protections for New York Workers
Great news for workers in the State of New York: Governor Kathy Hochul recently signed into law an amendment to the New York Labor Law that dramatically expands safeguards against and remedies for employers’ whistleblower retaliation. Historically, New York has “not recognize[d] the tort of wrongful discharge,”[1] including “for firings that violate public policy such as . . . discharge for exposing an employer’s illegal activities.” Lobosco v. N.Y. Tel. Co./NYNEX, 96 N.Y.2d 312, 316 (2001) (citing Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 297, 301 (1983)). Although the Empire State is home to some of the most employee‑friendly laws (like the antidiscrimination New York City Human Rights Law), it has trailed other states that have long recognized a common law tort of wrongful termination in violation of public policy. E.g., Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 72–73 (1980); Tameny v. Atl. Richfield Co., 27 Cal. 3d 167, 178 (1980). Instead, New York courts have deferred to the state legislature to protect workers who pipe up about illicit or unsafe activities. The State has codified its antiretaliation principles across several statutes, including ones that specifically defend the whistleblowing of employees in the public sector and particular industries. See, e.g., N.Y. Civ. Serv. Law […]
Update to States-The Final Frontier: the Ninth Circuit Addresses Calif. AB 51
On September 14, 2021, the co-authors of this blog post published an article entitled “States – The Final Frontier: How State Law and State Courts Can Provide Avenues for Justice and Resist the U.S. Supreme Court’s ‘Lochner Lite’ Anti-Employee and Anti-Consumer Agenda.” In that article, we discussed states’ efforts to provide protection from hostile federal arbitration jurisprudence—including enactment of laws that would prevent employers from imposing forced arbitration on their employees under certain circumstances.[1] We noted that when employees sue in court on their underlying legal claims, and rely on these state protections to avoid arbitration, they will inevitably face legal arguments that these laws are preempted by the Federal Arbitration Act (FAA). While states may not categorically exempt particular claims from arbitration, the question of whether the state law will survive the challenge generally depends on the wording and effect of the particular statute at issue.[2] On September 15, 2021, one day after our article was published, the Ninth Circuit addressed one such challenge to a state law—Cal. Lab. Code § 432.6, referenced in our article, and other statutory provisions enacted through AB 51—in Chamber of Commerce of U.S. v. Bonta, 13 F.4th 766 (9th Cir. 2021). Accordingly, we follow […]
Threatening Employees Based on Their Immigration Status Can Constitute Unlawful Retaliation Under Wage and Hour Laws
When an employee complains about an employer’s violation of wage and hour laws, anti-retaliation protections often kick in to protect the employee from being punished for complaining. Obvious examples of retaliation include firing or demoting the employee who complains. However, an employer’s retaliatory actions may also extend beyond the workplace. In some cases, the employer may try to use the employee’s immigration status as a tool to dissuade them from pursuing their claims. Fortunately, several courts have found that this kind of conduct can constitute unlawful retaliation. Many courts across the country have held that federal and state wage and hour laws prohibit employers from using an employee’s immigration status to threaten them after they complain. Courts have held that the following actions by an employer can give rise to a claim for retaliation: Reporting former employees to the Immigration and Naturalization Service (“INS”) and making false allegations to the government that they were “terrorists” after learning that they had filed a lawsuit under the Fair Labor Standards Act (“FLSA”). Centeno-Bernuy v. Perry, 302 F. Supp. 2d 128, 136 (W.D.N.Y. 2003 Reporting an undocumented employee to the INS after the employee filed a wage claim against the employer with the state […]
Section 806 of Sarbanes-Oxley: Protecting Those Who Complain of Fraud at Work
In the wake of the Enron and Arthur Anderson scandals, Congress enacted the Sarbanes-Oxley Act of 2002 (“SOX”) to address “a culture, supported by law, that discourage[s] employees from reporting fraudulent behavior not only to the proper authorities, such as the FBI and the SEC [Securities and Exchange Commission], but even internally.” S. Rep. No. 107–146, at 4–5 (2002).Section 806 of SOX prevents publicly traded companies—in addition to any subsidiary or affiliate whose financial information is included in the consolidated financial statements of such company—from terminating, harassing, or discriminating against any employee who reports (1) mail fraud, (2) wire fraud, (3) bank fraud, (4) securities fraud, or a violation of (5) any rule or regulation of the SEC or (6) any provision of federal law relating to fraud against shareholders, to a federal or law enforcement agency, Congress, or an internal supervisor. See Digit. Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 772 (2018); 18 U.S.C § 1514A(a)(1)(C). Section 929A of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 extended SOX’s protection to employees of public company subsidiaries and nationally recognized statistical rating organizations, employees of private contractors and subcontractors serving public companies, as well as the personal employees of […]
Banning Bans on Competition: DC Passes Sweeping Prohibition on Non-Compete Agreements in the District
This blog was co-authored by Leigh Anne St. Charles and Kaitlin Leary. Mayor Muriel Bowser recently signed into law a new Ban on Non-Compete Agreements Amendment Act of 2020 for the District of Columbia. The new law, which will go into effect following a 30-day congressional review period, offers sweeping and unprecedented employee protection from restrictive workplace policies designed to prevent employees from engaging in employment deemed “competitive.” In a time when employees are facing widespread terminations and lay-offs, legislation focused on stemming employer interference with the ability to earn a living is not, in itself, surprising. Indeed, DC’s neighbor Virginia passed its own ban on non-compete agreements for low wage employees eight months before DC, in April of 2020. However, the District’s new non-compete ban goes far beyond the new Virginia law, and applies the ban on non-competes to virtually all employers “operating in the District.” Once it goes into effect, DC’s new law is poised to become one of the broadest bans on non-compete agreements in the country. What Is a Non-Compete Agreement? A non-compete agreement is a contract between an employer and an employee that prohibits the employee from working for a competitor of the employer for a certain period of time. […]
Does Title VII Provide Any Protections If Your Employer Fires You for Advocating for Diversity, Equity, and Inclusion?
As long as there has been discrimination in the workplace, courageous employees have spoken up about it. In the past year, employees have pushed hard for workplace equity, as examples from the Audubon Society, Google, Pinterest, and elsewhere show. Unfortunately, many employers have reacted with retaliatory firings. The story of AI Ethicist Timnit Gebru at Google is perhaps the most recent, well-publicized example of an employee being fired for speaking up. As “one of 1.6% Black women at Google” who felt “constantly dehumanized” by her managers and faced “constant fighting” when she tried to challenge Google leadership, Gebru captured the feeling of countless others in her situation: “It’s just never been peace of mind. Imagine somebody’s shooting at you with a gun and you’re screaming. And instead of trying to stop the person who’s shooting at you with a gun, they’re trying to stop you from screaming. That’s how it felt. It was just so painful to be in that position over and over and over again.” In this kind of culture, it can be hard to delineate whether employer actions are discriminatory, retaliatory, just plain unfair, or all of the above. Title VII of the Civil Rights Act provides a framework with which to […]
Victim of a Biased HR Investigation? You’ve Got Rights!
The “Human Resources” or “HR” department of an organization typically performs various employee management functions, such as overseeing compliance with labor law and employment standards, administration of employee benefits, organizing employee files with documents for future reference, recruitment, and employee onboarding and offboarding. At their best, HR departments provide critical support to both employers and employees and facilitate a mutually satisfying relationship between and for both. Unfortunately, however, HR processes can be abused. Take the facts alleged in Vasquez v. Empress Ambulance Service, Inc., 835 F.3d 267 (2d Cir. 2016), a case decided by the Second Circuit Court of Appeals in 2016. Andrea Vasquez worked as an emergency medical technician for an ambulance company. After receiving unsolicited sexual photographs from Tyrell Gray, a co-worker, Ms. Vasquez did exactly what she was supposed to do: she promptly informed her supervisor and filed a formal complaint of sexual harassment with HR. Within a few hours, however, Mr. Gray learned of Ms. Vasquez’s complaint against him. He provided HR with false documents purporting to show that Ms. Vasquez had solicited an inappropriate sexual relationship with him. Relying on those documents, a member of HR told Ms. Vasquez that HR had heard from Mr. Gray about the matter and that HR […]