A recent 7th Circuit Court of Appeals retaliation case demonstrates that employees must adhere to certain levels of decorum. After receiving a settlement proposal he thought was insultingly low during an Equal Employment Opportunity Commission ("EEOC") mediation, Michael A. Benes reportedly stormed into a room occupied by his employer's representatives "and said loudly: 'You can take your proposal and shove it up your ass and fire me and I'll see you in court.'" Benes v. A.B. Data, Ltd., 119 Fair Empl.Prac.Cas. (BNA) 509, 2013 WL 3838112 (7th Cir.2013). When the employer did, in fact, fire Mr. Benes, he sought protection from the firing through the anti-retaliation provision of Title VII of the Civil Rights Act of 1964. However, the Court found that his outburst during mediation was not protected. The Court of Appeals upheld the District Court's granting of summary judgment to the employer and indicated "[s]ince §2000e-3(a) does not create a privilege to misbehave in court, it does not create a privilege to misbehave in mediation."
In Lawrence v. City of Youngstown, Supreme Court Case No. 20120Ohio-4247 (September 20, 2012), the Ohio Supreme Court recently resolved a longstanding dispute among the Ohio district courts of appeals as to when an employee is required to deliver a 90-day notice of workers' compensation retaliation letter to an employer to comply with R.C. 4123.90. Prior to this decision, some courts held that the notice letter must be delivered to the employer within 90 days after the date of discharge. Other courts held that the notice letter must be delivered within 90 days after the employee receives notice of his discharge.
Yesterday, the Ohio House joined the Senate in unanimously passing a bill to set up a fraud tracking system for fraud reported to the Ohio Auditor and extend whistleblowing protections to those who report the fraud. State Representative Ross McGregor, the bill's sponsor, has been pushing for a whistleblower protection law like this for several years.
In Part One of this series, I discussed the qui tam provisions under the federal False Claims Act (FCA) and compared it to Ohio's whistleblower statute. This post addresses the retaliation provisions.
The Federal False Claims Act ("FCA") creates a whistleblowing cause of action for an employee who feels retaliated against for "blowing the whistle" on the employer's illegal activities. Additionally, Ohio has a whistleblower statute and provides protections to at will employees under the public policy laws. But what do these protections really mean? Many employees misunderstand the protections of the FCA and Ohio's laws. This post will address the protections afforded to employees under the FCA's qui tam provisions and compare it to Ohio's whistleblower statute. My next post will address retaliation for making such reports. Finally, I will discuss Ohio's public policy exception to at will employment.
Often times, employees believing they are being discriminated against by their employer because of their age, gender, religions, race, or disability tell their employment attorney, "my boss said that I was too old" or "my boss was telling racists or sexist jokes all the time." Then, when I ask them what evidence they have to support their claim, they realize they have none but their own word. That is when I tell them (assuming they have not been separated from the company yet) to consider record their conversations with their employers, so long as no Company policy exists prohibiting recording. "I can do that?" The answer is - yes!
In Luri v. Republic Services, Inc., the jury awarded "the largest retaliatory discharge jury award in Ohio history-over $46 million." In this retaliation case, the plaintiff was part of a protected class only by virtue of his refusal to follow a directive from his supervisor to fire three employees on the basis of their age. Shortly after pointing out that two of these individuals had strong performance evaluations and refusing to fire them without cause might lead to a lawsuit, his supervisor downgraded his performance evaluations. Luri was then placed on a performance improvement plan that led to his termination.
Recently, the Supreme Court interpreted the complaint provision of the Fair Labor Standards Act (FLSA), which deals with minimum wage and overtime. 29 U.S.C. § 201 et seq. In Kasten v. Saint-Gobain Perf. Plastics Corp., the Court addressed the phrase "filed any complaint" and determined that this included oral, as well as written, complaints.