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Limiting the Retaliation Claim: ADR Promotes Efficient Resolution and Preserves Corporate Culture

Limiting the Retaliation Claim: ADR Promotes Efficient Resolution and Preserves Corporate Culture

Source: Corporate Counsel
Date: June 1, 2017

Mary Beth Kelly, Retired Justice, Michigan Supreme Court
An employer’s decision to dis- miss or demote an employee can be met with any number of retaliation claims in response to the decision, however justi- fied, documented, or vetted the decision may be within the company. An employee having a hard time accepting the bad news may believe the decision was in response to some pro- tected attribute or activity on his or her part. A claim for wrongful discharge now often has a retaliation claim attached to it. Retaliation claims usually take the form of discrimi- nation claims under Title VII: Claims that one was terminated on the basis of age, race, sex or another protected class attri- bute. Whistleblower claims form another common class of retalia- tion claims: Allegations that one was dismissed for disclosing ille- gal or wrongful conduct on the part of another in a position of authority at the employer, often regardless of the motive for the disclosure. When other employees choose to identify with the discharged or aggrieved employee, some of the very core values the employ- er has managed to instill with- in its company, such as team work, empathy, and sense of loyalty could now threaten the very scope of the retaliation liti- gation the employer is defend- ing. Other employees may sense other oversights, passed up pro- motions, perhaps inappropriate behavior. Before long, others feel aggrieved based on the treat- ment their terminated co-worker received and collective action against the employer could be in the works. Retaliation litigation particularly challenges those core corporate values in any given case. Retaliation claims are difficult to prove, but must be taken seriously. Retaliation claims under Title VII require traditional but-for causation, “[t]his requires proof that the unlawful retalia- tion would not have occurred in the absence of the alleged Limiting the Retaliation Claim: ADR Promotes Efficient Resolution and Preserves Corporate Culture corpcounsel.com | Thursday, June 1, 2017 PRESENTED BY JAMS Mary Beth Kelly, Retired Justice, Michigan Supreme Courtwrongful action or actions of the employer.” University of Texas Southwestern Med. Ctr. V Nassar , 570 U. S.-- , 133 S. Ct. 2517, 2531- 34. Retaliation claims can sur- vive dismissal of a discrimination claim or a discharge claim. Many employment agree- ments include bilateral arbitra- tion agreements of employment disputes, which limit class action or concerted action. While it is generally believed the National Labor Relations Act, 29 U.S.C. S 151 et. seq. (NLRA) upholds these agreements, unsettled law at present among several circuits on the issue of whether class action waivers often contained in such employment agree- ments are enforceable awaits review by the Supreme Court. See Epic Systems Corporation v Jacob Lewis and Ernst & Young LLP v Stephen Morris, et. al, (cert granted). This issue affects a siz- able portion of employment liti- gation. According to Aron Velling in Law360, in 2015, 8,954 FLSA (“Fair Labor Standard Act,” 29 U.S.C. S. 201, et seq) cases were filed, many of which were collec- tive actions. These collective actions come at great expense. The combined Amici Brief submitted in the Epic Systems Corporation v Jacob Lewis matter by the National Association of Manufacturers, the Coalition for a Democratic Workplace and the National Retail Federation surveyed the cost of the class actions in the employment context for 350 companies involved in those 8,954 FLSA cases filed in 2015. The 350 companies spent approximately 462.8 mil- lion in response to the sam- pling of cases. See 2015 Carlton Fields Jorden Burt Class Action Survey. Early resolution of retaliation claims is the best approach to confine the matter to a single issue and maintain confidenti- ality. ADR of a retaliation claim can take many shapes: neutral evaluation of an asserted or filed claim; facilitation, media- tion or arbitration. Each of these methods have advantages and particularly early resolution keeps the case confidential. Maintaining the dispute to a single employee and a single issue minimizes the risk of dam- age to the public reputation of the employer while the dispute is resolved. A resolution as sim- ple as offering a neutral evalua- tion for future employment has resolved a matter. Creative, early ADR efforts bear fruit in this cor- porate arena. Mary Beth Kelly, Retired Justice, Michigan Supreme Court is a neu- tral with JAMS, based in Detroit. Prior to being elected to the Michigan Supreme Court, she served as Chief Judge, Wayne County Circuit Court, where she remains the sole woman to hold the position. During her tenure, she led efforts to improve the racial diversity of the jury system. You may reach her at mbkelly@jamsadr.com. Thursday, June 1, 2017 Reprinted with permission from the June 1, 2017 edition of CoRpoRate Counsel © 2017 alM Media properties, llC. this article appears online only. all rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or reprints@alm.com. # 016-06-17-12