2016 RETALIATION CLAIMS IN EMPLOYMENT LAW UPDATE

First Run Broadcast: May 19, 2016

1:00 p.m. E.T./12:00 p.m. C.T./11:00 a.m. M.T./10:00 a.m. P.T. (60 minutes)

Retaliations claims are commonplace in employment litigation and on the rise. Whether alleged

as a standalone claim or when a substantive claim of harassment or discrimination fails,

employers frequently confront claims of retaliation. But the scope of an employee’s protected

conduct – whistleblower activity, requests for accommodation, and many other forms of activity

– is not limitless. There are also complicated questions of what exactly constitutes an adverse

action by an employer and the causal connection between the employee’s protected activity and

the adverse action. This program will provide you with a practical review of recent case law and

other developments impacting each of the elements of an actionable retaliation claim and best

practices to avoid liability.

Review of case law developments impacting elements of retaliation claims – protected

conduct, adverse action, and causation

Developments related to the scope of “protected conduct,” including requests for

reasonable accommodation

Determining what constitutes adverse action by the employer – and when action must be

taken

Knowledge standards for establishing causal link between protected conduct and adverse

action

Relationship of harassment, discrimination and ADA claims to retaliation claim

Speaker:

Cameron W. Fox is of counsel in the Los Angeles office of Paul Hastings, LLP, where she

represents employers in all aspects of employment and law and labor relations. She represents

employers against claims of discrimination, harassment, retaliation, and wrongful termination,

and in cases involving allegations of stolen confidential information and trade secret

misappropriation. She also has a robust practice advising employers on a wide variety of labor

and employment issues, including sensitive issues, such as workplace investigations,

transitioning and transgender employees, workplace violence, and theft of intellectual property

and restrictive covenants. Ms. Fox earned her B.S. from Northwestern University and her J.D.

from the University of California, Davis.

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2016 Retaliation Claims in Employment Law Update Teleseminar May 19, 2016 1:00PM – 2:00PM

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By: Kenneth W. Gage and Cameron W. Fox

1

2016 RETALIATION CLAIMS UPDATE

2AGENDA

Background

Recent developments in the law

Who is protected?

What is protected?

What is an adverse action?

What proof of causation is necessary?

Practical tips on mitigating whistleblower risks

3AN ALREADY CHALLENGING PARADIGM

Retaliation claims arise from:

Disagreement/dispute over compliance issue;

An adverse employment action; and

A perception that one caused the other.

Person asserting the claim does not have to be legally correct

about the compliance issue, just reasonable in her perception

4THE CURRENT ENVIRONMENT

Government relies on whistleblowers

Broad statutory protection

Survey of Federal Whistleblower and Anti-retaliation Laws

(April 22, 2013, Congressional Research Services

http://www.fas.org/sgp/crs/misc/R43045.pdf (last visited 5/17/16)

More to come?

Increasing publicity for significant economic incentives—

“bounties”

Dodd-Frank whistleblower awards

False Claims Act cases

Among fastest growing category of claims

Retaliation claims were 44.5% of all EEOC charges in FY ‘15

SEC Office of Whistleblower received 3,640 tips in FY ‘14 (more

than 20% increase over FY ‘13)

5THE EMPLOYER’S CHALLENGE

Whistleblowers almost always are employees or former employees

Some are motivated by money, some by principle, and some have ulterior motives

All whistleblowers should be taken seriously, regardless of motivation

But employers should be justifiably wary because retaliation cases are among most difficult to defend

Personnel challenges abound

Performance management

Expectations management

Confidentiality

Risk to be managed is two-fold

Understanding and, if necessary, mitigating the risk in the matter complained-of

Understanding and, if necessary, mitigating the risk of potential retaliation claims from the whistleblower

6RECENT DEVELOPMENTS IN THE LAW

Heffernan v. City of Paterson, 578 U.S. ___ (April 26, 2016)

EEOC’s New Proposed Enforcement Guidance on Retaliation

and Related Issues

Is the person protected?

Sarbanes-Oxley: Lawson v. FMR, 134 S. Ct. 1158, 188 L. Ed. 2d

158 (2014), and its progeny (SOX) (employees of contractors of

public companies are protected by SOX anti-retaliation provision;

how far does that go, to babysitters of public company CEO’s?)

Gibney v. Evolution Marketing Research, LLC, 25 F. Supp. 3d

741 (E.D. Pa. 2014) (applying Lawson; “the specific shareholder

fraud contemplated by SOX is that in which a public company –

either acting on its own or acting through its contractors – makes

material misrepresentations about its financial picture in order to

deceive its shareholders”)

7RECENT DEVELOPMENTS IN THE LAW

Is the person protected?

Dodd-Frank: Does the anti-retaliation provision protect people

who only complain internally and do not go to the SEC?

Compare Asadi v. G.E. Energy (USA) LLC, 720 F.3d 620 (5th

Cir. 2013) (internal whistleblowers not protected)

with Berman v. NeoOgilvy LLC, 801 F.3d 145 (2d Cir. 2015)

(same).

8RECENT DEVELOPMENTS IN THE LAW

Is the activity protected?

SOX:

Compare Nazif v. Computer Sciences Corporation, No. 13-

cv-5498, 2015 WL 3776892 (N.D. Cal. June 17, 2015)

(granting summary judgment to defendant; no reasonable

person would have considered the allegedly improperly

booked revenue to be material and, therefore, shareholder

fraud)

with Rhinehimer v. U.S. Bancorp Investments, Inc., 787 F.3d 797

(6th Cir. 2015) (affirming jury verdict for plaintiff who

complained of unsuitability fraud; adopting “the employee's

reasonable belief is a simple factual question requiring no subset of findings that the employee had a justifiable belief

as to each of the legally-defined elements of the suspected

fraud.”)

9RECENT DEVELOPMENTS IN THE LAW

Is the activity protected?

Title VII:

Compare Boyer-Liberto v. Fontainebleau Corp., --- F.3d ----,

2015 WL 2116849 (4th Cir. 2015) (en banc) (reversing

summary judgment for employer on retaliation claim;

supervisor’s use of the term “porch monkey” on two

occasions)

with Yazdian v. ConMed Endoscopic Technologies, Inc., No. 14-

3745, 2015 WL 4231698 (6th Cir. July 14, 2015) (affirming

summary judgment on discrimination claim but reversing as

to retaliation claim; supervisor forwarded article concerning

ancient Persia and commented about Muslim dietary

restrictions; employee terminated for insubordination)

10

Is the activity protected? FLSA:

Greathouse v. JHS Sec. Inc., No. 12 4521, 2015 U.S. App. LEXIS 6457 (2d Cir. Apr. 20, 2015) (holding that the Supreme Court in Kastenoverturned Lambert v. Genesee Hosp., 10 F.3d 46, 56 (2d Cir. 1993), which had held that internal oral complaints to a supervisor were not protected activity under the FLSA; remanded to determine whether complaints were "sufficiently clear and detailed for a reasonable employer to understand it" as an assertion of rights under statute).

Rosenfield v. GlobalTranz Enters., Inc., 2015 WL 8599403 (9th Cir. 2015) (a human resources director, fired after repeatedly telling her superiors the company was not complying with the FLSA, may pursue an FLSAretaliation claim; 2-1 decision; plaintiff gave the company “fair notice” she was making an FLSA complaint despite her managerial status).

Marcotte v. City of Rochester, Case No. 6:14-cv-6128(MAT) (W.D.N.Y. Mar. 1, 2016) (applying Kasten and granting summary judgment on FLSAretaliation claim; plaintiff, an architect, had complained that as exempt employee she was being required to use sick or personal time to cover 90 minutes she left work early; no reasonable employer would have understood this complaint as assertion of rights under FLSA, since the architect is an exempt employee not entitled to protections of the act; the great weight of authority holds that charging partial-day absence to an employee’s paid leave account does not defeat exempt status).

11RECENT DEVELOPMENTS IN THE LAW

Has there been a sufficiently adverse employment action?

Burlington Northern & Santa Fe Railway Co. v. White Ry. v. White, 548 U.S. 53 (2006)

Halliburton, Inc. v. Admin. Review Bd., 771 F.3d 254 (5th Cir.

2014) (applying Burlington standard under Title VII to SOX,

holding that disclosure of SOX whistleblower identity to

coworkers is adverse action)

Implications for investigations and litigation holds?

12RECENT DEVELOPMENTS IN THE LAW

No adverse action found

Kimble v. Donahoe, 511 F. App’x 573, 575 (7th Cir. 2013)

(rescinded suspension and letter of warning)

Arnold v. Columbus, 515 F. App’x 524, 531 (6th Cir) (internal

investigation in response to false accusation against co-worker)

Rester v. Stephens Media, LLC, 739 F.3d 1127, 1131-32 (8th Cir.

2014) (supervisor screaming and cursing)

Kuntz v. Tangherlini, No. 2:14-cv-00152, 2015 WL 1565910

(W.D. Wash. Apr. 8, 2015) (failure to provide assistance in

transitioning projects)

13RECENT DEVELOPMENTS IN THE LAW

Finding adverse action

Lavalais v. Vill. Of Melrose Park, 734 F.3d 629, 633-34 (7th Cir.

2013) (denial of lateral transfer request off of midnight shift)

Thomas v. Cnty. Of Riverside, 763 F.3d 1167, 1169, 1170 (9th

Cir. 2014) (removal from paying teaching assignment, rescinding

previously approved vacation)

Rodiguez-Vives v. P.R. Firefighters Corps, 743 F.3d 278, 284-85

(1st Cir. 2014) (denying firefighter opportunities to go out on

calls, delegating cleaning and cooking tasks)

Green v. Donahoe, 760 F.3d 1135, 1146-47 (10th Cir. 2014

(placing an employee on unpaid leave and ultimately paying in

full)

14RECENT DEVELOPMENTS IN THE LAW

Is there a requisite causal connection between the protected activity and the adverse employment action?

Title VII retaliation claims: 42 U.S.C. § 2000e-3 (“…because of…”)

SOX retaliation claims: 49 U.S.C. § 42121(b) (contributing factor by preponderance of the evidence, same decision defense by clear and convincing evidence)

Wiest v. Tyco Electronics Corp., Case No. 15-2034 (3d Cir. Feb. 2, 2016) (3d Cir. 2016)

False Claims Act retaliation claims: 31 U.S.C. §3730(h) (“… because of…”)

United States ex rel. Hamrick v. GlaxoSmithKline, Case No. 15-1434(1st Cir. February 17, 2016) (employee, discharged after telling co-workers he was thinking about killing specific managers, had no triable False Claims Act claim of retaliation; lower court did not err in not conducting an in camera review of 56 communications between the company and its legal counsel that the employee argued were not privileged because attorneys were acting as decision-makers; the “line between legal advice about what to do and business advice whether to do it is more abstract than concrete”).

15MITIGATING AND BALANCING THE RISKS

Managing investigation of the underlying complaint

Protecting the privilege, if applicable, and

Protecting confidential information

Without interfering with employee rights

Understanding the facts and, if necessary, correcting/disclosing

the problem

Simultaneously, assessing and managing the retaliation risk

Is the person “protected”?

Is her activity “protected”?

Has there been a sufficiently adverse employment action?

Is there a requisite causal connection between the protected

activity and the employment action?

Regardless of whether there is an underlying problem, there

may still be retaliation risk

16MITIGATING AND BALANCING THE RISKS

Engaging outside counsel to conduct investigation

Pros

Cons

Protect privilege and confidentiality

Upjohn warnings

Exchange Act Rule 21F-17 (SEC/KBR Settlement)

NLRB Rulings on employer confidentiality rules

Don’t forget the litigation hold

Assess whistleblower’s relationship to alleged wrongdoers

Impact on credibility of witnesses

Impact on possible interim reassignment of whistleblower

Be mindful that this is your opportunity to write the story

Look for ways to make it less appealing to a plaintiff’s lawyer

17KEY CONTACTS

Kenneth Gage is a partner in the Employment Law Department of Paul Hastings and Chair of the Workplace

Retaliation and Whistleblower Defense practice group. He is based in the firm’s New York and Chicago offices.

The Legal 500 lists him in tier one in the categories of Labor and Employment Litigation and Workplace and

Employment Counseling, and he is rated "AV Preeminent" by Martindale-Hubbell®. Mr. Gage represents employers in a

wide range of federal and state employment litigation matters, from pre-litigation counseling through trials and appeals.

His litigation experience includes defendants’ verdicts in several jury trials involving race, age, sex, and disability

discrimination claims, retaliation claims, and state common law claims, as well as numerous summary judgment rulings

and injunction proceedings in restrictive covenant litigation matters.

Mr. Gage has successfully defeated class certification in a pattern and practice race discrimination case under Title VII,

as well as conditional certification in federal wage and hour cases. He has successfully argued several appeals in state

and federal courts. In addition, with his extensive litigation experience, Mr. Gage regularly counsels employers on

litigation avoidance and best practices.

Kenneth Gage | Partner | Employment Law Department

New York

75 East 55th Street

New York, NY 10022

T: +1.212.318.6046

F: +1.212.230.7646

kennethgage@paulhastings.com | www.paulhastings.com

18KEY CONTACTS

Cameron W. Fox is of counsel in the Employment Law Department of Paul Hastings and is based in the firm’s Los

Angeles office. Ms. Fox represents employers in all aspects of employment law and labor relations.

An experienced trial lawyer, Ms. Fox represents employers against claims of discrimination, harassment, retaliation, and

wrongful termination, and in cases involving allegations of stolen confidential information and trade secret

misappropriation. Ms. Fox has successfully defended employers in arbitrations, jury and bench trials, and on appeal.

She has tried tens of cases to verdict, including cases involving claims of harassment, retaliation, discrimination,

constructive termination, breach of employment agreement, trade secret violations, and related business torts.

Ms. Fox also represents employers in traditional labor matters, including collective bargaining and responding to unfair

labor practice charges, election petitions, and organizing campaigns. Ms. Fox has a robust advising practice as well.

She counsels employers on a wide variety of labor and employment issues. Ms. Fox has extensive experience advising

employers on particularly sensitive issues, such as workplace investigations, transitioning and transgender employees,

workplace violence, and theft of intellectual property and restrictive covenants.

Cameron Fox | Of Counsel | Employment Law Department

Los Angeles

515 South Flower Street

Twenty-Fifth Floor

Los Angeles, CA

T: +1.213.683.6301

F: +1.213.996.3301

cameronfox@paulhastings.com | www.paulhastings.com

PROFESSIONAL EDUCATION BROADCAST NETWORK

Speaker Contact Information

2016 RETALIATION CLAIMS IN EMPLOYMENT LAW UPDATE

Cameron W. Fox

Paul Hastings LLP – Los Angeles, California

(o) (213) 683-6301

cameronfox@paulhastings.com

Kenneth Gage

Paul Hastings, LLP – New York

(o) (312) 499-6046

kennethgage@paulhastings.com