Know that a whistle blower does have rights! Recently, three former aerospace employees were awarded $45.3 million when they were fired after reporting flaws in the construction of aircraft. Courts have awarded whistle-blowers their actual wage loss until they find another job, the difference between their wages for a reasonable time in the future, lost benefits, reinstatement in the previous job, attorney’s fees, and punishment, or “punitive,” damages. The major question is whether and how to blow the whistle.
Laws Preventing Retaliation
State and federal laws protect whistle-blowers employed by either public or private employers. The subject of the whistle- blowing must be a legal right or duty that is truly in the “public interest” originating in a constitutional or statutory provision. For example, it is improper for an employer to retaliate against an employee who complains about safety rules, fraud or government contracts, illegalities, discrimination laws, or refusal to obey any other law established in the public interest. Federal laws do riot cover every situation and state laws are not all consistent. Evaluation of the applicable law must be on a case¬by-case basis.
Reasons to Become a Whistle Blower
I. Duty to the public: Civic duty to the public at large often compels an employee to disclose improprieties about the employer.
2. Duty to licensing authority: An employee’s own license might require non-participation in illegal actions and disclosure to proper authorities. Failure to do so could subject the employee to discipline or loss of license.
3. Duty to employer: Complaining to upper management about improprieties of lower management may be the duty of the employee pursuant to the company policy or handbook. One may he placed in the awkward situation of complaining to the supervisor’s boss about the supervisor. Loyalty of the employee should be to the company that determines the master policy and issues the payroll check.
4. Employee’s own conscience: Simply trying to do “what is right” has often been the incentive for the whistle blower.
5. Protection against personal liability: Involvement in illegalities or improprieties may subject an employee to personal civil or even criminal liability. The immediate need to receive wages is a weak excuse for an employee who participates as a co-conspirator with other personnel involved in illegal action by the employer if the result could be personal civil or criminal liability. People who understand the consequences of these actions are more willing to complain about improprieties.
6. Improve job security: In some situations, the whistle blower can even help secure an employment position. This is especially true if the employee is already on the list” for layoff or termination. Blowing the whistle on the employer might make it very difficult for the employer to terminate the employee for fear that a claim for retaliatory termination might be made.
7. Financial gain: Not only are appropriate whistle blower activists protected in their employment, they also can earn, as “finder’s fees,” 15 to 30 percent of any recovery for fraud against the government that they uncover. In one case, a whistle blower was awarded $7.5 million in a lawsuit alleging his former employer padded Pentagon contracts.
Reasons Not to Blow the Whistle
I. Alienation in the workplace: Even though there are procedures by which to complain anonymously, if it should become known, the employee is often alienated in the workplace.
2. Loss of trust: The management of the company looks at whistle-blowers as “traitors” to their cause. Any trust or camaraderie that formerly existed is often lost.
3. Substantial delays: Resolution of disputes seldom happens promptly in the judicial system or through government channels. Delays for many years are not uncommon.
4. Blacklisting: The reputation of a whistle-blower often becomes known in the industry. Problems are caused when an employer deliberately encourages others not to hire the employee, spreads lies or simply fails to give enthusiastic support about an employee’s loyalty and performance to a prospective employer. Being a whistle blower may cause self- imposed blacklisting by the employee who is now forced to truthfully admit to future prospective employers that the reason for loss of employment was because of whistle blower actions. Few employers feel comfortable hiring an employee who has such a reputation.
How to Become a Whistle Blower
I. Gather evidence: Document in writing all evidence of the violation of public policy.
2. Confirm witnesses: Confirm any witness support for the claim. Note home addresses and telephone numbers.
3. Prove illegality: Gather all necessary information to prove the impropriety. Some states provide protection even if the company’s action is not illegal as long as the employee reasonably thought that it was.
4. Anonymous complaint: Consider making a complaint to proper authorities in an anonymous manner. The advantage of doing this is that it might limit the retaliation against the employee.
5. Public complaint: If it would be obvious who made the complaint anyway, the employee might be better off disclosing the source of the complaint to claim the legal rights against retaliation. It must be shown that the employer had knowledge of the complainer.
6. Document retaliation: It is not enough to prove an illegality once the employer knew of the whistle- blower. Actual retaliation must be proven by evidence of harassment; double standard, unwarranted disciplined; or retribution through loss of benefits, demotion or termination. A daily diary is helpful to record retaliation as it happens.
7. Complain to the appropriate party: Many states require that the complaint be made to the appropriate government agency. Some states give employees substantial rights against retaliation even if the complaint is made to higher management.
8. Complain about retaliation in a timely manner: Complaints must be made timely. Some states require complaints to be made within an extremely short time period, such as 30 days, to the appropriate government agency. Some states have other deadlines such as a one-year period.
9. Make sure: Given the consequences of whistle-blowing and the variety of laws throughout the nation, an employee should first consult with the appropriate state or federal agency that enforces the non-retaliation rules or see an attorney.
Weighing the Options
Even though some whistle-blowers have recovered substantial amounts in court, many others have ended up with nothing or had their careers or lives ruined. One must be able to prove the illegality, knowledge of the employer of the whistle-blower and resulting retaliation—and feel confident that the chance of success is worth the possible consequences.
Former chief executive of Japan’s Olympus Corp. has resigned from the board in light of several allegations of a whistle blower. Michael Woodford, who worked at Olympus for three decades, was fired in October after …
Walter Biggins, an industrious chemist for Hazen Paper Company, often took work home and fiddled with solvent formulas in his kitchen sink. By all accounts, Mr. Biggins’ concoctions allowed Hazen Paper Company to reduce its releases of hazardous fumes and increase sales. Biggins, because he had substantially enriched the company’s bottom line, thought he deserved a hefty salary increase from $44,000 to $100,000. Thomas and Robert Hazen, cousins who ran the family company, proposed giving Biggins stock in the company instead. As time passed, the shares didn’t materialize, and the relationship between the chemist and the principals of the company deteriorated. The 68-year¬old Biggins was fired shortly before he qualified for a pension, and replaced by a 35-year-old. Biggins’ attorney, John Egan, felt that the owners of I lazen Paper Company had violated the federal pension- protection statute by dismissing Biggins specifically to deny him retirement money. A suit alleging age discrimination was filed. Six and one- half years after Biggins was fired, the case of Hazen Paper Company u. Biggins was brought before the Supreme Court. Biggins was perplexed by all the commotion. “All I wanted was a damn pay raise,” he said.
Thirty years after becoming the first female partner at Chicago’s Baker and McKenzie, Ingrid L. Beall became the first female partner to sue the firm. According to the com¬plaint filed in court, Ms. Beall’s income had fallen 64 percent in the previous three years because she was denied assignments and shunted aside, in violation of the firm’s partnership agreement. Beall acknowledged that the decision to sue was difficult, but she felt she had no choice. “You can’t be a wimp and walk away from a bad situation,” she said “It’s important for the people behind me.”
According to the Dec. 8, 1992, issue of The Wall Street Journal, age- discrimination inquiries to the American Association of Retired Persons surged by 156 percent from 1990 to 1991, The Equal Employment Opportunity Commission and similar state agencies have been deluged, too. According to the Journal report, nearly 22,800 age- discrimination complaints were filed with the Commission and state agencies in the first half of fiscal 1992, equaling the total number of com¬plaints filed in 1985.
When attorney Don Sessions began practicing law in 1976, he rep-resented both employers and employees in work-related issues. Then, in the mid-80s, Sessions’ practice experienced a noticeable rise in the employee requests for legal assistance. The case that made Sessions want to discontinue corporate representation and concentrate solely on the employee perspective involved a man who was fired a year and a half into a long-term employment contract. According to Sessions, his client had discovered some illegalities in the company’s operation, but when he reported these to his boss, he was told to keep his mouth shut. Soon after that, the man was fired.
The employee’s complaint, which contained sensitive company information. was eventually settled out of court for half a million dollars.
Very few lawyers practice this specialty, says Sessions. “Most people have a tough time finding someone to help them pursue work¬place justice,” Sessions observes, “because these suits can he time- consuming and costly.”
For Sessions, this kind of work has become more than a way to earn money. Each story is different and each is loaded with emotion. Many of his clients break clown in tears as they describe their situations. “I have been extremely busy helping people,” says Sessions. “Because each case presents an employee grievance, I often feel like an employee advocate.”
Sessions offers the following ten- point guide as a brief introduction to employee law—bit he cautions: “Labor law is extremely complex. constantly changing, and subject to different interpretations. Do not rely on a magazine article or short seminar to determine your best legal avenues.”
I. The right of an employer to fire an employee “at will” is limited.
The right of an employer to terminate an employee at will, with or without cause, was confirmed by the courts in the late 1800s and rein¬forced by subsequent statutes and court rulings. This is the main defense employers use against terminated employees. Yet an employer’s right to terminate a worker can be limited by an oral or written contract between the employer and employee. If the person who hired you, or a representative of the company, made promises to you, either in writing or orally, then the company must abide by those promises.
2. Employers cannot terminate employees for discriminatory reasons such as race, color, gender, religious beliefs, pregnancy, age, physical handicap, veteran status, national origin and marital status.
An action is discriminatory when an employer has practiced a double standard within a given group and the employer’s actions have vio¬lated a Constitutionally protected area, such as race, age or religion. (It is not discrimination for an employer or supervisor to say, “I don’t like short people or bald people.”) Some discriminatory and statutory practices are well publicized and more recognizable.
• Sex discrimination. One of Sessions’ clients was a female vice president in a company in which the male president of the company— because he wanted to get to know his executives better—played golf with the male vice presidents. Yet he never invited the female vice president (who was an excel¬lent golfer) to join them. He, therefore, denied the female executive an opportunity that was given the male executives. That, Sessions says, is sex discrimination.
Another one of his clients, a female office manager, was subjected to her employer’s vulgar jokes and gestures, manhandling and indecent photos of himself. Her employer’s actions created tremendous stress for her, so she quit her job. She had been a victim of sexual harassment and discrimination. The determined financial settlement was generous.
• Age discrimination. While it is understandable that companies may need to lower expenses, layoffs based on age and salary alone are not lawful. Sessions’ age-discrimination cases have usually involved employees with careers of 30-plus years, as well as excellent reviews throughout. Employees in their late 50s and early 60s are often in the higher salary bracket. There is little chance, he says, that they will find comparable employment elsewhere.
• Racial discrimination. Another of his clients was a Caucasian engineer who helped an Asian company set up in the United States. The company grew to be a multimillion-dollar enterprise. More Asian employees were hired and promoted, but the engineer who participated in the setup of the company was overlooked and finally terminated. The engineer pursued his rights—and won!
Punitive damages are based on the wrongfulness of the acts committed and the relative wealth of the employer. If the claim is projected to include the anticipated salary through retirement, the damages can be astronomical.
3. Employers cannot retaliate against you for doing what you have a legal right to do.
Remember, society and the courts are interested in your legal rights. Society, Sessions says, doesn’t care whether you and your boss had a blowout over throwing the Christmas party at the Ritz
Carlton or the local high school gymnasium, but society does care about Constitutionally protected issues, such as unsafe working conditions or your obligation and right to serve on a jury.
• An employer cannot retaliate against an employee who reports illegal activities of the company. For instance, an employee who discovers that his or her employer is under-reporting earnings to the Internal Revenue Service can complain to the employer and/or the IRS without fear of reprisal.
• Employers cannot force employees to act illegally. One of Sessions’ clients worked for a tour bus company. The owner of the company was telling the drivers that they had to work 100-hour weeks. That is against Department of Motor Vehicle regulations. “Would you want to put your well-being in the hands of a driver who had been working a 100-hour week?” Sessions asked. “The drivers who complained were fired. They have a good case.”
• Employees cannot be forced to work in unsafe conditions. The Occupational Safety and Health Administration (OSHA) has rules and regulations that
govern the workplace and are designed to minimize risk of injury. For instance, according to Sessions, it is the responsibility of the employer to insist on safety glasses, steel-toed shoes and helmets when needed; to properly ventilate the work area; and to keep cords out of walk-ways or secured within them. An employee cannot be forced to work under risky conditions. Employer-violation cases are often settled quickly out of court because a public lawsuit would broadcast company shortcomings. Out-of-pocket and punitive damages are considered in these cases.
4. An employer cannot breach the contract.
At-will termination, discrimination and retaliation, while claims in themselves, may also constitute breach of contract. Promises regarding discrimination/retaliation are often made in the company manual. Other times, Sessions says, these promises are implied throughout the working relation-ship or established by the usual practice of the employer.
For instance, if an employer has a policy of annual reviews or one to three disciplinary warnings before dismissal, then the employer must apply that policy to all employees. Sessions: “My favorite question to ask at seminars is, ‘How many of you have had an employee evaluation recently?’ Most haven’t. The policy for most companies, often mentioned in the company manual, is to give annual performance reviews.”
An employee who is selected for layoff, or terminated because of poor performance, and who has not had a company-mandated review can simply counter that it’s impossible to correct or improve without someone pointing out what’s being done wrong, according to Sessions. And, even if there is at-will language in the employment application, handbook or other employer policies, the at-will stipulation may not excuse the employer for violating promises made about the term of employment. All employment contracts, he says, contain an implied promise of good faith and fair dealing. Fair dealing is expected in the employer/employee relationship. The statute of limitations on a claim of breach of contract is usu¬ally longer than the statute for retaliation or discrimination. It is an easier claim to prove because it can be supported by actual written or oral representation or witnesses.
5. The charge of wrongful termination is often accompanied by additional claims.
According to Sessions, as a wrongful-termination case is pursued, additional charges may give the employer the incentive to resolve the issues. These claims include:
• Invasion of privacy. If there have been improper actions or inquiries that intrude into the employee’s private life, the employer can be liable for invasion of privacy.
• False imprisonment. Often, when an employer is pushing for a settlement agreement, the employee may be pressured into remaining in the room. This is a form of
false imprisonment.
• Fraudulent inducement to change jobs. If an employee accepts a position and move to another city encouraged by the promise of a vice presidency, luxury car, lavish expense account and company-provided housing, and these perks do not materialize, the employer may be using fraudulent means. Fraudulent inducement is a serious charge. Many states allow for multiple damages in these cases. Depending on the state, misleading an employee with false promises may even be a crime.
• Libel and slander. Libel is the intentional misrepresentation of an employee in writing. Slander is the intentional misrepresentation of an employee orally. Many states provide multiple levels of damages, and even criminal damages, against employers who make inappropriate statements about an employee’s work performance. Sessions remembers one client, an airline repair technician who had complained about safety violations. He was accused of “slowing production” and “having bad relations with the management.” But, when used alone, these true statements misrepresented the situation. These selected statements harmed the employee’s chances of getting another job.
The fact is, an employer can commit libel and slander with-out even uttering a word. “Let’s say an employee, who is innocent, has been accused of taking money from the register
and is subsequently fired,” Sessions says. “While pursuing other jobs, the employee will be haunted by that accusation of stealing. As an applicant and interviewee, the employee will anticipate the dreaded question: ‘Why did you leave your last position?’
“A truthful applicant will answer, ‘They accused me of stealing…but it’s really not true.’ But, by saying this, the employee defames him- or her-self. If an employer gives you a reason for termination, it must be valid. Otherwise, the employer becomes an accomplice, assisting the employee In defaming him- or herself.”
6. Find out what your ex- employer is saying about you.
It’s always a good idea to find out what kind of reference your former employer is giving you. Sessions recommends private investigation services which specialize in reference documentation. The investigator contacts his client’s former employer and asks the same questions that any prospective
employer would ask. The responses to questions such as “What kind of employee was he or she?” and “Why did he/she leave the company?” are transcribed and verified under penalty of perjury.
Any response can actually benefit the former employee. If the company representative says terrible things about the person or comments on why the employee left, that could be grounds for a slander suit. If the former employer speaks of the person in glowing terms and it differs from what was said at the exit interview, that will work in favor of the employee. If the reference gives a neutral response, then the employee can sleep well at night knowing his former employer Isn’t sabotaging his or her job search effort.
7. Do you have a good case?
Attorneys evaluate a case by weighing three factors, according to Sessions: One, can a case of liability against the employer be established? Two, what are the damages? Three, can an award be collected against this employer? It would be senseless, for instance, to bring even a good claim against an employer who has declared bankruptcy.
8. What are your options? Sessions suggests the following:
• Do nothing. Court cases can be time-consuming, costly and stressful. Some people decide to waive their rights and get on with life.
• Employer internal grievance procedure. A company-established grievance procedure may help you remedy the situation.
• Informal negotiation. It can’t hurt to negotiate a settlement yourself. If you discover that you are not being taken seriously, you can always hire an attorney.
• Union procedures. Members of a union must follow established union procedures with breach-of-con-tract claims. It is not mandatory to follow union procedures with other claims.
• Governmental agencies. Federal and state agencies have been established to handle claims of discrimination. While representation is free, it often takes months to get the case started and years to settle. Recovery is often limited because these agencies will focus on discrimination alone and not include related claims.
• Small-claims court. A small- claims lawsuit can be quick and very inexpensive, but the limit on recovery in many states is $5,000. If the employee wins, the employer can appeal in superior court where lawyers represent the litigants. Since an attorney can be very expensive and the recovery still limited to $5,000, even winning could mean losing!
• Attorney negotiation. A specialist in employment law immediately recognizes employer violations and knows which buttons to push. An employer has a good incentive to avoid the bad press and potential liability that accompanies litigation, so most cases can be settled out of court.
• Lawsuit. With a lawsuit, liability and damages must be proved. It takes time and money to pursue.
• Workers’ compensation. An employee who is unable to work because of a work-related injury and who has a doctor authorized leave is eligible for workers’ compensation.
• Unemployment compensation. An employee who is laid off or terminated for reasons other than intentional misconduct qualifies for unemployment compensation. However, a dis-charged employee cannot apply for workers’ compensation and unemployment compensation at the same time.
9. Take action now! File now!
There is a time limit for filing a wrongful-termination claim and related claims, Sessions says. Very often, the deadline is one year from the wrongful act—which may be sooner than the termination date. For some union, government- employee claims and claims to a government agency, the deadline is 30 days or less. Some claims based on federal law must be filed within 90 days, while other claims are allowed two to four years.
10. Protect yourself on the job.
If you are now working in an uncomfortable situation and if you sense you may be wrongfully terminated, Sessions says to take these steps to protect yourself:
• Keep the company employee handbook at home. Read it.
• Maintain a log of discriminatory incidents.
• Keep the phone numbers and addresses of friends from work at home.
• File written complaints with your employer and keep copies of the complaints at home.
• Keep copies of your employee file and important work documents at home.
For further information on wrongful termination, purchase one of the recently published books on the topic. Your local Bar Association can recommend an employment specialist or the local Yellow Pages can offer a list of attorney specialists who understand employment law.
Orange County Wrongful Termination News
Judge dismisses wrongful termination lawsuit against Chula Vista http://t.co/85XCwL9u
Question by i2mbecca: wrongful termination or defamation of character? I was terminated and after talking with friends and family they believe I may have a case of wrongful termination or defamation of character.
Wrongful termination at work is when a company has finished or let go a staff member, along with the legal rights of the worker were violated. Several states have included a job at will policy that states a company can eliminate …
A clip from PBS/DPTV show Due Process. Host Henry Baskin and guests Megan Bonanni (Pitt, McGehee, Palmer, River & Golden [plaintiff]) and Margaret Carroll Alli (Ogletree, Deakins, Nash, Smoak & Stewart, PLLC [defense]) discuss the issue. What is cons…
As an employee rights attorney, the most popular question asked of me is “Do I have a case?”
Most disgruntled present or former employees who believe an injustice has been done, have in fact had legal rights violated and do indeed “have a case.” The question really is if such violation of rights justifies the time, effort, money and risk necessary to seek legal recourse. In other words, is the case good enough?
Evaluation of a case includes the following:
1. Liability
Employer responsibility for a wrong must be proven. In employment cases, such wrongs usually are (1) broken promises, (2) discrimination or (3) retaliation for whistle- blowing or refusal to commit illegal acts. Liability is established through employee handbooks, supervisors’ manuals, written information of employment terms, witnesses, performance appraisal, statistical data or even one person’s word against another. Of course a case in which there is a 90 percent chance to prove liability is better than one with a 10 percent chance. Comparison with other cases decided by the courts or statutory law clarifies the level of proof required and possible outcomes. Liability is the logical center of any case.
2. Damages
If liability is an appeal to logic or the brain, then damages seek out emotion or the heart, Damages determine the “tears” in a case and the more tears there are the better the case. Damages are shown by an employee’s wage loss, humiliation, lost opportunity, psychological trauma and future impact. Sometimes the full extent of damages is not known for months or years after the wrongful event. A wrongfully terminated employee who finds a better job two months later does not have as convincing damages as one who may never find comparable employment.
3. Collectability
Understanding the employer is absolutely essential to the evaluation of an employee’s case. The employer must be financially stable enough to pay for a judgment if a case is won. It
certainly does no good to recover a million-dollar judgment if the employer is about to go bankrupt.
Unfortunately, most employment claims are not covered by the employer’s insurance. Because of this fact, many employers Ire more motivated to resolve these types of cases promptly because of the expense of litigation and risk of defeat. The expense of litigation and possible adverse judgment will come directly out of the employer’s own pocket.
Another factor is the attitude or willingness of the employer to resolve the dispute. Even if liability and damages are not substantial, a case may still be promptly resolved because of embarrassing or sensitive facts which could ruin an employer through bad publicity or through government sanctions. This is especially true in cases involving retaliation against an employee because of complaints about or refusal to do illegalities.
Employee Rights Attorney Engagement Conclusion
In reviewing all these factors, the very best case is one with high liability, damages, and collectability. Even if a case is not strong in all three areas, it does not necessarily mean that the case is not a good one. Many attorneys would be very interested in a case with virtually assured liability but questionable damages. Even though the recovery may be small, there will not be much of a fight to get it. If a case has questionable liability but very high damages, again, the case may be a very good one.
Even though there may be problems in winning the case, if there is a recovery it would be so substantial that it is worth the risk. If any one of the three factors is extremely low, it may destroy the value of the case. The best recommendation for a wronged employee is to have rights immediately evaluated by an attorney who is familiar with these cases before the passage of any statute of limitations deadline so the proper course of action can be determined.
Federal employees who believe they have been subjected to unlawful pay discrimination should contact a federal sector employment law attorney, who will protect their rights by filing an EEO complaint or a civil suit on their …
Any Ohio resident who believes they have been subjected to workplace discrimination should consider speaking with an experienced Cincinnati employment law attorney for an assessment of individual circumstances and …
Q: The company I work for has both hourly and salaried employees. We all work 8½ hours per day, but since we receive a paid hour for lunch, we have been told that we are not entitled to any breaks.
Is this legal?
A: Nonexempt employees are entitled to a paid break of 10 minutes in the first and second half of an 8-hour shift. The breaks should fall in the middle of those periods. In addition, the employer is required to give the employee at least an unpaid break of half an hour in the middle of the workday for lunch.
In your situation, it does not matter whether you are paid hourly or earn a salary. Many people make the mistake of thinking that if they are salaried, they do not deserve the protection of these laws.
Being salaried is only one of many requirements to be exempt from these rules. You also must be a manager, a professional or an administrator, and perform these duties for more than half of your work time.
If you believe the breaks are important, you should certainly insist on them. However, it appears that if might be more profitable for you to remain silent. You have been given an hour lunch period when the legal requirement is only half an hour. In addition, your employer is paying you for the full hour lunch break, which also is not required.
You are making more money for the hour break than you would be making for the two 10-minute breaks in the morning and afternoon.
Q: Our employer would like to eliminate the employee morning and afternoon breaks. We do not work for four continuous hours, so the employer says we don’t need the break. We have an hour lunch break; however, the employees are under the assumption that if we work an eight-and-one-half hour day with an hour for lunch, we are still entitled to a 15-minute morning and afternoon break. Is this correct?
A: Employment law specialist Don D. Sessions, of Mission Viejo, provides this answer: “Most employees are subject to the wage-hour and other workplace rules enforced by the California Labor Commissioner’s office. Under such rules, you are not totally right, but you are more correct than the employer.
“The employer is required to provide you with paid, 10-minute breaks in the morning and afternoon. Ideally this should come in the middle of each work period.
“By failing to provide you with this break, your employer can be fined $50 per employee per violation. It also could be in breach of the employer’s contract with you to follow applicable laws.
“It is improper to retaliate against you if you complain about this illegal situation.”
Q: I was laid off after my employer lost a major account. I was the first person to be hired to work on this account, am in good standing with my employer and have been told I will be rehired at the first opportunity.
However, I am upset because two men who were hired long after me have been retained to work on other accounts. I was told off the record by one of the managers that since I am married and my husband makes a good salary, management decided to lay me off and keep the two men.
Of course, I have no way of proving the manager stated this. Do I have any recourse?
A: “Discrimination based on your marital status is illegal. Your challenge is to prove that you were terminated for this improper reason.
“Call the manager who told you about the discrimination and arrange for a witness to listen in on your conversation. Try to get that manager to repeat what he said to you previously.
“Compare your job status with the two men who were retained. How do your performance statistics compare with theirs? Do you have charts from the company comparing sales productivity, especially for the months prior to the layoff?
“Examine the company handbook for layoff policies. Many employer handbooks give priority to longer tenured employees.
“Review your employee file-it’s your legal right-to see if it contains comments about why you were chosen for a layoff. You might arrive at the company unannounced and ask to review your file to reduce the chance that the company would “sanitize” the file.
“Try to determine any differences in formal evaluations that you and the two men received. You might ask them how they were rated on their most recent review. Your case would be strengthened greatly if you were rated higher than they, especially on recent performance reviews.
“If you feel that you have a case for discrimination because the company retained the two men, consider filing a claim with the state Department of Fair Employment and Housing.
“Be careful not to delay. The statute of limitations expires one year after the date of termination.”
Martin Luther King would have turned over in his grave had he read Herdie Baisden’s article, “Advice for Unemployed Black Professionals” in a recent issue of this publication.
Mr. Baisden, a consultant hired by companies, essentially encourages employees to focus on future jobs, to eliminate anger toward their former employers, to not dwell on past job discrimination and to not pursue their rights against employers who discriminate against them.
As an attorney who exclusively represents employees, my advice to victims of job discrimination would be far different.
1. Understand your anger. Rather than simply “moving on” with your life, first understand the anger that causes such anxiety. If your termination really had nothing to do with improper discrimination, then Mr. Baisden’s advice would be appropriate. However, if discrimination was an issue, ignoring the injustice won’t solve the problem. If anything, failure to understand and demand your rights will cause you to suffer financial losses, further insecurities and a lack of confidence in subsequent employment.
2. Determine if there was discrimination. You need to find out whether discrimination was, in fact, involved in your employment or termination. To do so, you can consult self‑help books, available at any bookstore; the U.S. Equal Employment Opportunity Commission (which offers free advice, investigation and resolution of discrimination issues); state agencies that offer services similar to the EEOC’s; private support groups focusing on particular types of discrimination (such as race, sex or age); or local bar association or newspaper telephone help‑lines that review discrimination laws. Also, many attorneys offer free or inexpensive initial consultations to evaluate discrimination claims. Knowledge of your rights, or lack of them, will bring you power to control your feelings.
3. Determine the strength of your case. You’ll likely conclude that discrimination may have played a role in your employment problem or termination. Most people have a theoretical “case.” The key is whether it’s strong enough to justify the investment of time, money and stress necessary to pursue your rights. When evaluating a case, attorneys look at several factors:
a. Liability. Can you prove-through witnesses, biased statements, documentation or evidence of a “double standard”-that discrimination was a factor in an improper employment action against you?
b. Damages. Even if you’re confident you can win, it may not do any good if the employer’s improper actions have caused you little harm. Evaluate your current and future wage loss and emotional distress. A weak case of liability can be offset by a strong case of damages, and vice versa.
c. Sensitivity. Even without a lawsuit, cases that involve “sensitive” or embarrassing facts about the employer usually are resolved quickly.
d. Collectability. Even if you win your case and are awarded a large amount of money, it does you no good if you can’t collect it because the employer has financial problems.
e. Other factors. You must consider a long list of other important issues, many of which have nothing to do with law: such as your cash needs, re‑employment options, stress and potential for harm to your reputation.
4. Consider your options. Mr. Baisden’s article discourages you from pursuing a “long, drawn‑out legal battle” or trying to “milk” the employer because it distracts you from your real task of finding a new job. The real task should be both finding a new job and evaluating all your rights and options, as follows:
a. Employer’s internal grievance procedure. The employer’s system for addressing grievances, if any, is usually a prompt method you can follow. You should fully evaluate your case first to determine the appropriate settlement amount.
b. Informal negotiation. A disgruntled employee certainly can confront the employer personally and make a demand for a resolution. The worst the employer can do is say no. However, in most cases, the employee doesn’t really know what to ask for or how to “push the right buttons” to make things happen. Thus, he won’t be taken seriously.
c. Government agency. The EEOC and various state agencies provide investigation and resolution of discrimination complaints without charge. The disadvantage is that it often takes a year or more to go through the process and the agencies limit their investigation to this issue.
d. Small claims lawsuit. You don’t need a lawyer and the case can be wrapped up in a matter of weeks or months, but you’re limited to a nominal award, such as $5,000. Also, even if you win, the case can be appealed to a higher court with attorneys present.
e. Attorney negotiation. Most companies would prefer this option over resolving employee disputes through litigation. It’s estimated that the average cost to defend these types of cases in court is more than $100,000, giving the employer a strong incentive to resolve legitimate discrimination claims.
f. Lawsuit. Not all lawsuits are long, expensive and drawn‑out. Many courts throughout the country have prompt, expedited procedures. Also, prompt arbitration is becoming more popular. Some attorneys take these case on a contingent‑fee basis, in which most or all of the fee is paid only if you win.
g. Seek job transition income. The stress of financial pressures during job transition can be lessened by unemployment compensation, workers’ compensation or money recovered from pursuing your rights against the employer. Although nothing can eliminate the hurt of discrimination, money helps.
Back in the ’60s, Martin Luther King said his unforgettable words, “I have a dream.” Although we have a long way to go, much of his dream has become reality with new laws against discrimination. Ignoring your right to fight discrimination in the workplace makes his efforts meaningless. Understanding his dream and making it reality is the true cure for employment discrimination and the financial trauma and anger it causes.
Q: “How do you prove age discrimination? If you’re applying for jobs and you sense you’re being screened out for being overqualified, is that legal? After a career in the private sector, I want to work in the public sector, but I’m afraid all people see is my age on the application. Is there a recourse?”
A: “Proving age discrimination is often very difficult, especially when hiring is involved. Discrimination against present employees is easier to prove because you often have a history of a ‘double standard,’ as well as willing witnesses to support your claim.
“On way to document where you stand, in a hiring situation, is to compare yourself with the other applicants for the position by striking up a conversation with them in the waiting room before or after your interview. Also, ask anyone you know who actually works for the employer to give you feedback about the identity and qualifications of the person who ultimately gets the job.
“If you think that the prospective employer is not considering you because of your age, you could file a complaint with the California Department of Fair Employment and Housing or the Federal Equal Employment Opportunity Commission. They have the ability to require the employer to provide all relevant information regarding the job. As an alternative, you can get further information by filing a lawsuit.
“You can try to prevent discrimination by not emphasizing age factors. Instead of putting down the dates of previous employment, you might consider being more general. If the application asks questions about your age or requires your photograph, from which age can be determined, the employer may be in violation of law. On the other hand, some employers, especially in government, might be required to ask you questions regarding your age, or for that matter race, to comply with affirmative action programs.
“Keep in mind that in regard to hiring or promotions, it may not make any difference whether the person selected for the job is, in factor, better qualified than you. The law protects your chance to try out for a position. If you have been denied that opportunity for discriminatory reasons, then you may recover damages.”
Q: “I have been employed by a major corporation for over 30 years, the last 27 years in a management position in one department. I have received glowing annual performance ratings from various supervisors who have headed the department.
“Recently I found out that very quietly, without any announcement, about 50% of my peers in the department have been upgraded to the next highest management level. I am 57 years old. Everyone upgraded is younger and very few, if any could match my continuously high performance rating, my varied skills and experience level.
“This obvious choice of youth and disregard of over three decades of outstanding service clearly indicates an orchestrated effort by the current managers to force the ‘old timer’ into an early retirement.
“Are we talking age discrimination here? Are any labor laws broken? Do I have any legal recourse?”
A: “It is illegal to discriminate against any employee on the basis of age.
“Your challenge is to show that age was the reason that the others were promoted. You should evaluate all other possible factors for the promotion of those other employees. Compare your salaries, job responsibilities, and performance.
“Your case would be stronger if peers who were not promoted are in your age category. It hurts your case if some are younger.
“If it was an orchestrated effort to force you into retirement, however, it’s difficult to understand why such a move would have been made quietly, as you said. It would have made more sense for them to show favoritism outwardly, or to criticize you in your annual reviews.
“Regardless, if you can prove discrimination, you have legal recourse through the Department of Fair Employment and Housing, Equal Employment Opportunity Commission, the company’s internal grievance procedure, or an attorney.”
Q: “I am more than four months’ pregnant. My doctor has put me on bed rest because of extremely high blood pressure, passing out, dizziness and vomiting. Can my employer terminate me because of “hardship to the company” or when I return to work, reduce my pay and job responsibilities-even if I have a full release from my doctor to return to work with no restriction?
“I am an accounting clerk. The company has about 50 employees but the company is moving out of state in May.”
A: “According to federal law, employers cannot discriminate against pregnant employees if the employer has 15 or more workers. According to state law, if the employer has at least five employees the employer cannot so discriminate and must give you up to four months of leave for a pregnancy related illness. Such leave does not need to be taken at one time.
“Additionally, other federal and state legislation has provided another four months’ worth of leave to care for yourself or your family. In total, a pregnant person might claim eight months of leave.
“Upon your return to your work, the employer must return you to your former job unless your job has been eliminated for reasons other than your leave or there is a reasonable hardship for the employer to hold your job open rather than leaving it either unfilled or filling it with temporary employees.
“The employer’s finances and size may be a factor in deciding what is in fact a reasonable hardship. If the employer cannot return you to your former job, you must be returned to a substantially similar job unless one is not available or if one is available, given such a job to you would again be a reasonable hardship. Often it is very difficult for the employer to justify not giving you such a job.
“If the company is moving out of the state, the employer has to give you the same opportunities to move with the company that it gives its other employees who are not pregnant.”
