When “getting back” an employee becomes illegal retaliation

EVERY now and then, our law firm receives calls from persons who inform us that supervisors reduced their hours, or suspended them for a trump up charge, in order to “get back,” or get even with them for “talking back,” or telling the supervisor he was wrong. The aggrieved employee then asks if they can sue for retaliation.
The law on retaliation is concerned primarily with protecting an employee when the employee engages in a “protected activity.” Such activity may include complaining about a violation of a legal right, or reporting a violation of the law by the employer. Anti-retaliation laws encourage people to speak up to enforce the law and protect their rights. These laws prohibit employers from deterring employees in asserting complaints in good faith.
The U.S. Supreme Court has set an objective test for retaliation complaints.  In order to succeed in a claim for retaliation, the employee must prove all of the following:
1) The employee engaged in a protected activity, such as claiming wages due, reporting discrimination, testifying as a witness, or some other action to help enforce the law. Filing a grievance, contacting the media, refusing to perform illegal assignments, and other forms of standing up against violations of the law are also protected.
2) The employer knew or believed that the employee engaged in such protected activity.
3) The employee suffered an adverse employment action, such as a discharge, demotion, formal discipline, and denial of overtime, promotion, or benefits.
4) The employee’s protected activity caused the employer to take adverse action.
Demonstrating whether a claim is in fact retaliation may be complicated. Consider the following two real cases in California reported by the Daily Journal:
First is the case of Jose Juarez, who worked at Radio Shack for nine years as a sales associate and then as a manager. Radio Shack hired a “wireless expert” to increase sales at Juarez’s store. Later, after some customers complained about the new employee, Juarez reported the new employee to the district manager for poor customer service and unethical and possible illegal transactions. However, during Radio Shack’s investigation about Juarez’s report on the “wireless expert,” Juarez himself was questioned about some minor incidents he was involved in, including a discount he had previously given a customer. Shortly after the investigation, Juarez was fired. In July 2011, Juarez sued Radio Shack for wrongful termination based on his disclosure of unethical and illegal practices taking place at his store.
After trial, the jury found in favor of Juarez and awarded him $7,383,100 in damages. The jury found that Juarez’s internal complaint of illegal, fraudulent, or unethical practices were a substantial motivating reason for Radio Shack’s decision to terminate him.
The second case concerned Aaron Miller, who worked as a police officer for the City of Oceanside. Miller sued the city, claiming his employer retaliated against him for a race/national origin complaint he filed involving his superior officer. Miller was transferred from an investigations unit to a patrol unit and received a four-day unpaid suspension. When he complained this transfer as retaliatory, Miller said the city further retaliated against him and denied a transfer back to the investigations unit. He claimed loss of salary, physical injury and emotional distress.
The employer denied Miller’s claims and said that Miller was properly disciplined for failing to report the misconduct of his partner in violation of police department policy. After a four-week trial, 10 of the 12 jurors found in favor of the employer. Miller lost.
Despite the complexity that may surround a retaliation claim, employees who have engaged in protected activity and have suffered for it, are well-advised to consult with experienced counsel.

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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.  Atty. Sayas’ Law Office is located at 500 N. Brand Blvd. Suite 980, Glendale, CA 91203. You can contact the office at (818) 291-0088 or visit  www.joesayaslaw.com.  

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C. Joe Sayas, Jr., Esq. is trial attorney who has obtained several million dollar recoveries for his clients against employers and insurance companies. He has been selected as a Super Lawyer by the Los Angeles Magazine, featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements, and is a member of the Million Dollar-Advocates Forum.