Employers Need To Be Aware Of Potential Retaliation Claims

Most employers are well aware that they cannot make employment decisions based upon a person’s race, disability, sex, age, national origin, religion and other classes protected under federal, state or local law. However, many employers seem to run afoul of the employment discrimination laws not because they engage in discriminatory conduct based upon a person’s membership in a protected class, but rather by retaliating against the individual for raising a possible discrimination issue.  In fact, the U.S. Equal Employment Opportunity Commission recently announced that in over 45% of the workplace discrimination charges it received in 2016 involved, at least in part, a claim of retaliation was raised by the complaining party.  https://www.eeoc.gov/eeoc/newsroom/release/1-18-17a.cfm

Therefore, it is extremely important that in addition to immediately commencing an investigation into any discrimination allegation, the employer must take appropriate steps to safeguard the complaining party from retaliation. The employer’s personnel policies should make clear that retaliation will not be tolerated and this should be reiterated to all individuals involved in the alleged discrimination. Generally, taking any adverse action against a complaining individual is not a good idea.  However, for reasons totally unrelated to the fact that the employee raised a complaint of discrimination, it is sometimes necessary to terminate an employee who has complained about discrimination.  This decision should only be made after consultation with competent legal guidance, as the employer will need to demonstrate that the adverse employment decision was not motivated by retaliation or discrimination.   The closer the “temporal proximity” is between the complaint of discrimination and the adverse employment action, the harder it will be for the employer to satisfy its burden.

Again, terminating an employee after he/she has raised a complaint of discrimination is generally ill-advised. It is important to remember that even if the underlying complaint of discrimination turns out to unsubstantiated, the retaliation claim will not disappear and will have to be addressed.

For more information on retaliation claims, please contact Scott A. Mirsky at (301) 664-7710 or samirsky@mirskylawgroup.com.
Disclaimer: The content of this blog is intended for informational purposes only. It is not intended to solicit business or to provide legal advice. Laws differ by state and jurisdiction. The information on this blog may not apply to every reader. You should not take any legal action based upon the information contained on this blog without first seeking professional counsel. Your use of the blog does not create an attorney-client relationship between you and Mirsky Law Group, LLC.

Employment Policies Cannot Prohibit Employees from Discussing their Wages with their Co-Workers

A new Maryland law went into effect on October 1, 2016 that prohibits employers from making pay decisions based upon an employee’s sex or gender indemnity.  In furtherance of the purpose of the newly enacted Maryland Equal Pay for Equal Work Act of 2016 (“Act”), an employer cannot restrict their employees from talking about their salaries.   In particular, an employer is not allowed to prohibit its employees from inquiring about, discussing, or disclosing their wages or the wages of any other employee.  Pursuant to the new law, any efforts by the employer to take an adverse action against an employee because he/she has exercised his/her rights to discuss wages and/or to inquire about his/her wages, is a violation of the Act.

However, the Act does allow the employer to take steps to protect the integrity of the work environment.  Specifically, an employer can institute a written policy that establishes reasonable workday limitations on the time, place, and manner for inquires about or the discussion of disclosure of employee wages but these limitations need to be consistent with standards adopted by the Commissioner of Labor and Industry and all other state and federal laws.

Now is the time to review employment policies to ensure compliance with the new Act.

For more information on Maryland’s new Equal Pay for Equal Work Act of 2016, please contact Scott A. Mirsky at (301) 664-7710 or samirsky@mirskylawgroup.com.

Disclaimer: The content of this blog is intended for informational purposes only. It is not intended to solicit business or to provide legal advice. Laws differ by state and jurisdiction. The information on this blog may not apply to every reader. You should not take any legal action based upon the information contained on this blog without first seeking professional counsel. Your use of the blog does not create an attorney-client relationship between you and Mirsky Law Group, LLC.