Wrongful Termination

Rob Wiley: My name is Rob Wiley, and today I’m going to be speaking with Austin employment lawyer Colin Walsh about retaliation in the workplace. Now in a perfect world, you would go to human resources or you’d go to your manager and you, you’d discuss a problem that is happening in the workplace, and people would come together and they would try and solve it, but all too often, we see an employee go make a complaint and then it’s like they get a target painted on them, and inevitably they experience retaliation, so Colin, what is retaliation and do we have laws that prohibit that in the workplace?

Colin Walsh: Yes. We do have laws that prohibit retaliation, and retaliation is taking any kind of adverse action against an employee because they engaged in protected activity.

Rob Wiley: And protected activity could be a complaint of discrimination, sexual harassment, not being paid overtime or minimum wages, there is a dangerous condition in the workplace that threatens worker safety. Those are examples of the kinds of things that are then protected complaints. Is that correct?

Colin Walsh: Yes. That’s correct, and often, we will even have retaliation claims that are stronger than the underlying complaint.

Rob Wiley: And I think that one of the reasons for that is what you have to prove on a retaliation claim. Sometimes on claims you’ve got to show how similarly situated employees were treated or you’ve got to show that somebody actually qualified, having a disability or something like that. You never have to prove that for retaliation. Typically there’s just three elements you have to prove, and what are those?

Colin Walsh: Yes, so the three elements that you’d have to prove is that you engaged in protected activity, so you made that complaint. Then you suffered an adverse action, such as being fired, and the one thing, that the protected activity caused the adverse action.

Rob Wiley: That’s right, and what happens with retaliation claims a lot of times when we see them is that of the three elements, we’ve already got two proven, so the fact that someone went and made a complaint of, say sexual harassment, there’s no dispute about that.

Colin Walsh: Yes.

Rob Wiley: The fact that they got fired, there’s no dispute about that, so we only have that third element left, causation. Was it the complaint that then caused them to be fired? And so obviously it’s easier to prove something if you only have one element that’s left. I think the other thing is that judges and juries get retaliation – the idea that somebody makes a complaint and then the employer turns around. I know that temporal proximity is one of the things that you look for in a retaliation claim. What does that mean?

Colin Walsh: Temporal proximity would be the length of time between the adverse action and the protected activity, so what, we’ve seen cases where people come in and they say they complained and 24 hours later, they’re fired, they complain on a Friday and then that following Monday, they’re fired. That kind of temporal proximity is really strong evidence that that complaint caused their termination.

Rob Wiley: But I would say that retaliation is, is something that we see very often but sometimes I wish that the person had come to talk to us sooner because if you’re going in to talk to HR, if you’re going to complain to your supervisor and there’s the possibility of retaliation, it’s probably a good thing to get a lawyer ahead of time.

Colin Walsh: Yes. We we can definitely provide better help for an employee who is not yet retaliated against, not yet suffering that adverse action, ensure that they get that complaint in, ensure that they’re touching everything that needs to be said in order to protect their rights.

Rob Wiley: Yes, the situation that I would want to avoid is someone goes to their supervisor and makes a complaint and then we pick up the case after they’ve been fired, and you’ve got the supervisor saying, oh, I never got that complaint. I never heard that. And then so then it’s no longer an issue of having two of the three elements proved and that would’ve been something that would’ve been so easy to do if, if that person would’ve come to us sooner. We could’ve sent a letter to the general counsel for the company, made sure that there’s something documenting this in writing, and either maybe headed off the retaliation before it happened or built a good record so that if they were retaliated against, we can do something about it after they’ve gotten fired.