Retaliatory Termination

[Mitchell!]

What is the name of your state (only U.S. law)? NY

Would it be considered a 'retaliatory termination' if an employer fires an employee who is supporting a former employee that is suing the company? By supporting I mean helping/providing (in writing or otherwise) truthful and accurate evidence of the former employees claims against the company.

 

[You Are Guilty]

What is the name of your state (only U.S. law)? NY

Would it be considered a 'retaliatory termination' if an employer fires an employee who is supporting a former employee that is suing the company? By supporting I mean helping/providing (in writing or otherwise) truthful and accurate evidence of the former employees claims against the company.

Nope (unless you have an employment contract prohibiting it, or are in a union).

 

[KJHOOK13]

Crawford v. Metropolitan school district

Actually, the Supreme Court recently found that it is in fact retaliation to take a negative employment action against an employee who participates in an investigation, interview, affidavit, deposition, etc of a protected action. See Crawford vs. Metropolitan School District Nashville, N

 

[eerelations]

KJHOOK13, I think this situation is slightly different from the case you cite.

In the case you're citing, the Supreme Court was talking about employees who are called for interviews or depositions, and whose truthful answers to questions posed to them during these meetings happen to support the plaintiff's evidence.

In this situation here, I think the employee is providing information to the plaintiff as a favour - not because he's being officially asked/ordered to do so. In this instance, it would be perfectly legal to fire this employee.

 

[Mitchell!]

I found this online - it sounds like it answers my question...or does it?




Title VII of the 1964 Civil Rights Act SEC. 704. (a) It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed, any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.

 

[Mitchell!]

KJHOOK13, I think this situation is slightly different from the case you cite.

In the case you're citing, the Supreme Court was talking about employees who are called for interviews or depositions, and whose truthful answers to questions posed to them during these meetings happen to support the plaintiff's evidence.

In this situation here, I think the employee is providing information to the plaintiff as a favour - not because he's being officially asked/ordered to do so. In this instance, it would be perfectly legal to fire this employee.

What if the employee is interviewed by the company about what they have said in support of the former employee's claims? Does that count as being officially asked/ordered? I'm confused now. The language in 704 (a) sounds like it would apply if the employee was just doing the former employee a favor...it isn't really specific in its language.

 

[eerelations]

Probably not. Please see my post above.

Who is the plaintiff (in relation to you), what is he/she suing about, and why are you giving him/her information about your employer for his/her court case? Because you're his/her friend? Because you share a common hatred of your employer? Because you're being asked for the information by an official investigator? Because the court is ordering you to provide the information?

The answer to the above questions will determine whether or not your employer can legally fire you for doing this.

 

[KJHOOK13]

Clarify

I think what Eerelations was counseling me on is that there is a difference between a current employee writing out true and accurate facts to help a former employee with a lawsuit - versus - the EEOC investigator making an official inquiry based on the terminated employee making a charge that the firing was due to a reason prohibited by state or government law, i.e, discrimination due to race, gender, religion, age, disability, etc.

Is that the case?

 

[eerelations]

Just read the rest of your post...sorry for missing the last bit.

If the company is doing the interviewing, and assuming that the company is the defendant, then yes, it would be legal for the company to fire you for providing unsatisfactory responses - no matter how truthful those responses may be.

You are only protected if you're being interviewed by the plaintiff's attorneys or investigators, or by an official representative of the EEOC or other regulatory body.

 

[Mitchell!]

I think what Eerelations was counseling me on is that there is a difference between a current employee writing out true and accurate facts to help a former employee with a lawsuit - versus - the EEOC investigator making an official inquiry based on the terminated employee making a charge that the firing was due to a reason prohibited by state or government law, i.e, discrimination due to race, gender, religion, age, disability, etc.

Is that the case?

The current employee's statements can help provide proof of the 'differential treatment' the former employee experienced. Essentially, the story is this:

Both the current and former employees in question did the same thing on different occasions, but only one was terminated for their actions. The other was not disciplined at all. Several other current (and former) employees also did the same thing as the terminated employee in question (none of whom were terminated or disciplined for it), and their statements to that effect can assist the terminated employee with their claim.

The bottom line is that the terminated employee experienced 'differential treatment' because she is female, and all the other employees who did the same thing and were not terminated or disciplined for it are male.

It sounds like the current employees willing to help the terminated one would only be protected depending on who they talk and give the information to.

 

[cbg]

While I understand the distinction that eerelations is making, I'm kind of leaning in Kjhook13's direction. Depending on state law, I think there might be a public policy issue here.

 

[eerelations]

They are only protected if they're required to give the information to a court of law or the plaintiff's attorney.

Please note the word "required" as it is extremely important here.

I'm assuming that the female has made an EEOC complaint. If the EEOC asks the males for information, then they cannot legally be fired for providing it. However, if they provide the information to the EEOC without being officially asked for it, then they can be legally fired.

So it's not a matter of who they talk to but why they talk at all about this case.

 

[eerelations]

While I understand the distinction that eerelations is making, I'm kind of leaning in Kjhook13's direction. Depending on state law, I think there might be a public policy issue here.

I don't think that employees who provide anti-employer information to their colleagues who are suing said employer without being officially asked for said information are protected.

 

[Mitchell!]

They are only protected if they're required to give the information to a court of law or the plaintiff's attorney.

Please note the word "required" as it is extremely important here.

I'm assuming that the female has made an EEOC complaint. If the EEOC asks the males for information, then they cannot legally be fired for providing it. However, if they provide the information to the EEOC without being officially asked for it, then they can be legally fired.

So it's not a matter of who they talk to but why they talk at all about this case.

Wow that is interesting. So its almost like they can't appear to be TOO willing to provide any information that would provide proof of the claim, and if they do, they have to be approached for it, they can't be the one's doing the 'approaching', if you will.

So the terminated female would first have to make an EEOC complaint. Then, if/when the EEOC asks the males for their info, they then cannot legally be fired for doing so. Ok, well it sounds like my friend is going about this a bit backwards. She hasn't made an EEOC complaint as of yet, but she does have several people willing to talk (as long as they can't be fired for it).

What did 'cbg' mean when he/she mentioned 'public policy issues'?

 

[cbg]

In most, but not all states, there is what's called a "public policy" exception to employment at will. What that means, essentially, is that you cannot be fired for executing a right that is protected under the law. Specifically what rights are protected under the law vary with the states.

I have no idea whether providing testimony in a co-worker's lawsuit is protected or not in any given state, or whether, as eerelations says, it is only protected when it is required, but I think it would at least be worth a look. It may come to nothing. It may not.

Edited to add: Wait, never mind. NY is one of the few states that does not recognize the public policy exception to at-will employment. Forget I said anything.