Protected Activity Anti-Retaliation Provisions

News & Analysis as of

Can Employers Discipline Employees for “Self-Help Discovery”? Massachusetts Decision Raises More Questions Than Answers

Employers know all too well that employees sometimes help themselves to documents the employer would like to keep confidential. This is precisely why many employers require employees to sign confidentiality agreements and...more

Massachusetts High Court Paves Way for Employees to Engage in ‘Self-Help’ Discovery

The highest court in Massachusetts has ruled that, in certain instances, an employee can access and obtain an employer’s records in order to support a claim of employment discrimination. Verdrager v. Mintz Levin, No....more

Court-Sanctioned Employee Theft? Self-Help Discovery May Be Protected Activity In Discrimination Cases

Recently in Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., No. SJC-11901, 2015 WL 10937776 (Mass. May 31, 2016), the Supreme Judicial Court of Massachusetts held, as a matter of first impression, that...more

Employee’s Self-Help Discovery May Be Protected Activity Under Massachusetts Anti-Retaliation Law

On May 31, 2016, the Supreme Judicial Court of Massachusetts held in Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. that an employee’s accessing, copying and forwarding of an employer’s confidential documents...more

The New California Regulations Part IV: Support Animals in the Workplace

The California Office of Administrative Law recently approved regulations drafted by the California Fair Employment and Housing Council. These new regulations, covering the entire gamut of employment law topics within the...more

Blowing the Whistle on Food Safety: OSHA Issues a Final Rule Related to FDCA Complaints

On April 18, 2016, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced that it has issued procedural rules for enforcement of whistleblower complaints alleging violations of the...more

Employee Benefits & Executive Compensation Advisory: The ACA: New Concerns for Employer Plan Sponsors Under the Fair Labor...

The Affordable Care Act (ACA) anti-retaliation provisions have been in effect for several years, but have so far largely gone unnoticed. Now that employees can get financial assistance through the Health Insurance...more

EEOC Guidance on Retaliation: An Unprecedented Interpretation of Federal EEO Law

This next installment of our ongoing series takes a closer look into the U.S. Equal Employment Opportunity Commission’s (EEOC) Proposed Enforcement Guidance on Retaliation and Related Issues. Last week, we discussed the...more

EEOC Guidance on Retaliation: Make it Easier for Employees to Prove Their Case

This installment of our ongoing series on federal regulatory actions impacting employers examines the U.S. Equal Employment Opportunity Commission’s (EEOC) Proposed Enforcement Guidance on Retaliation and Related...more

EEOC Retaliation Guidance Ups the Stakes for Manufacturers

I ended my January 21 “employment law predictions” post by writing, “One thing I can count on as these ‘Years of Change’ continue, expect something unexpected.” The EEOC made that prediction come true the same day when it...more

EEOC’s Updated Retaliation Enforcement Guidance Seeks to Expand the Reach of its Anti-Retaliation Laws

Effectively responding to employee discrimination complaints by current employees without running afoul of federal and state anti-retaliation laws presents a slippery slope for all employers. In fact, retaliation complaints...more

EEOC Ratchets Up Focus On Retaliation: EEOC Publishes First New Enforcement Guidance on Retaliation In Nearly Two Decades

The EEOC seeks public comment on its new Enforcement Guidance on Retaliation and Related Issues, which will supersede the agency’s last-issued guidance on the topic from 1998. The updated guidance addresses several...more

Labor and Employment News: Retaliation Claims Are Difficult to Defend: Redux

A few weeks ago, we reported on a retaliation judgment in U.S. District Court, Connecticut, Summerlin v. Almost Family, Inc. ("Retaliation Claims Difficult to Defend"). The retaliation case discussed below did not cost the...more

Litigating Environmental Whistleblower Claims Under OSHA Procedures

The federal government is allocating more time and resources to whistleblower programs. Now, more than ever, companies need to take steps to minimize exposure to whistleblower claims. When a whistleblower case is filed, it...more

N.D. Ill. Expands Definition of Protected Activity Under Ill. Whistleblower Act

On October 29, 2015, the Northern District of Illinois concluded that an employee who called police regarding suspected shoplifting—in violation of company policy—succeeded in proving a claim under the Illinois Whistleblower...more

OSHA Whistleblower Retaliation Complaints Are on the Rise - Is Your Company Ready?

Many employers are surprised to learn that the Occupational Safety and Health Administration (OSHA) is responsible for investigating whistleblower retaliation complaints under 22 separate federal statutes, not just the...more

California Enacts a Raft of New Employment Legislation

The latest legislative session has just ended, and, true to form, the California Legislature has added more than a dozen new laws affecting employers doing business in the nation’s largest state.  These statutes are in...more

ARB Rules That Secret Recording of Workplace Conversations Can Be Protected Whistleblowing Activity

On September 28, 2015, the U.S. Department of Labor Administrative Review Board (“ARB”) held that the recording of workplace conversations can be protected whistleblower activity under the Energy Reorganization Act of 1974...more

A Review of Recent Whistleblower Developments

Second Circuit Splits from Fifth Circuit on Whistleblower SEC Reporting Obligations On September 10, 2015, the Second Circuit in Berman v. Neo@Ogilvy LLC, 2015 U.S. App. LEXIS 16071 (2d Cir. 2015), ruled that...more

N.D. Illinois Grants Summary Judgment Against SOX Whistleblower

On August 26, 2015, the U.S. District Court for the Northern District of Illinois granted summary judgment on a whistleblower retaliation claim under Section 806 of SOX, holding that Plaintiff Ivor Hill failed to establish a...more

Fourth Circuit Decides Rule Exempting Certain Management Professionals from Retaliation Lawsuits Not Applicable under Title VII

Employers in the Fourth Circuit states of Maryland, North Carolina, South Carolina, Virginia and West Virginia must now be mindful that employees who deal with complaints of discrimination and harassment can point to that...more

Fourth Circuit Rejects “Manager Rule” in Title VII Cases

In an important recent decision, DeMasters v. Carilion Clinic, the Fourth Circuit determined that the so-called “manager rule” exception to federal anti-retaliation laws does not apply to employment cases filed under Title...more

E.D.N.Y Denies Motion For Summary Judgment In FCA Retaliation Case Based On Finding Of Pretext

The U.S. District Court for the Eastern District of New York recently found that two former employees of Eihab Human Services (Company) raised a genuine issue of material fact as to whether they were discharged in retaliation...more

An Unsolved Problem? Claims of Post-Employment Retaliation by the (Formerly) Problem Employee

Most employers know that various employment laws prohibit retaliation against employees who engage in protected activity, such as those who complain of discrimination, report purportedly unlawful conduct, or support fellow...more

The Fourth Circuit Expands the Implied Certification Theory to Anti-Retaliation Claims

On January 8, 2015, the Fourth Circuit determined that, amid a circuit split, the “implied certification” theory of liability under the False Claims Act (“FCA”) was viable in the Fourth Circuit. United States v. Triple...more

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