California Public Agency Labor & Employment Blog

California Public Agency Labor & Employment Blog

Useful information for navigating legal challenges

Category Archives: Retaliation

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U.S. Supreme Court Issues New Public Employee Free Speech Decision – Compelled Employee Testimony Can Be Protected

Posted in First Amendment, Retaliation
On Thursday, June 19, 2014, the U.S. Supreme Court in Lane v. Franks held that the First Amendment protects a public employee who provides truthful sworn testimony, compelled by subpoena, outside the scope of his or her ordinary job responsibilities.  In so holding, the Court overturned precedent from the U.S. Court of Appeals for the … Continue Reading

Looking Back: Highlights of Changes to Employment Laws That Affect Employer Policies

Posted in Employment, Retaliation
This blog post was authored by Steven Tang As we enter the last quarter of this fiscal year, many employers begin to look ahead to new budgets, new agreements with employee organizations, and new opportunities for agency success.  While looking ahead to consider and weigh priorities and objectives, employers may also want to look back … Continue Reading

Labor Code Section 1102.5: Its “Whistle” Just Got Bigger And Louder

Posted in Employment, Retaliation
When Labor Code section 1102.5, generally referred to as the “whistleblower” statute, was enacted in 1984, the Legislature intended to encourage employees to report violations of state and federal laws by their employers without fear of retaliation.  The statute endured for nearly 20 years before it was first amended in 2003.  It has now been … Continue Reading

Employers – Update Your Policies to Reflect ACA’s Anti-Retaliation Provisions

Posted in Healthcare, Retaliation
This blog post was authored by Jessica R. Frier Employers should update their whistleblowing, anti-harassment and anti-retaliation policies to reference new protections provided to employees by the Affordable Care Act (“ACA”).  What is Prohibited?  ACA’s anti-retaliation provisions prohibit an employer from retaliating against an employee who: Receives a health insurance tax credit or subsidy through … Continue Reading

Genetic Information: A Protected Classification for the 21st Century

Posted in Discrimination, Harassment, Hiring, Personnel Issues, Retaliation
In the 1997 science fiction film Gattaca, the main character Vincent lives in a futuristic world where success is based on an individual’s genetic profile instead of experience or education.  Because Vincent’s genes are considered inferior, he assumes the identity of a genetically superior man in order to avoid discrimination based on his genetics.  While … Continue Reading

The Ninth Circuit Addresses What Constitutes an Adverse Employment Action

Posted in Discrimination, Employment, Retaliation
Determining what constitutes an “adverse employment action” is critical when an employee sues for retaliation and/or discrimination.  In order to be able to sustain a claim for either retaliation or discrimination, an employee must sufficiently prove that he/she suffered an adverse employment action.  This issue was recently addressed by the U.S. Ninth Circuit Court of … Continue Reading

Ninth Circuit Decision Reaffirms The Difficulty Members Of Law Enforcement Can Face In Asserting First Amendment Claims

Posted in Constitutional Rights, First Amendment, Public Safety Issues, Retaliation
Update: On December 11, 2012, the U.S. Court of Appeals for the Ninth Circuit decided to re-hear Dahlia v. Rodriguez en banc. Accordingly, public agencies can no longer rely on the three-Judge panel opinion discussed below. A panel of eleven Judges will re-hear the appeal. The opinion of that en banc panel of the Ninth Circuit will likely … Continue Reading

Court Finds Unlawful Intent Is Missing From Jury Instructions On Retaliation, But Is It Missing From Instructions On Disability Discrimination, As Well?

Posted in Disability, Discrimination, Retaliation
The California Court of Appeal recently highlighted a fundamental flaw in the California Civil Jury Instructions (“CACI”) on a cause of action for retaliation in violation of the Fair Employment and Housing Act (“FEHA”).  The instruction is missing the element of retaliatory intent or animus.  This flaw has not been brought to the forefront previously … Continue Reading

Supreme Court Recognizes That The “Ministerial Exception” Under The First Amendment Precludes Retaliation Claim Brought Under The ADA

Posted in Discrimination, Education, First Amendment, Retaliation
This post was co-authored by Michael Blacher On January 11, 2012, the U.S. Supreme Court decided Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, No. 10-553, in which the Court recognized for the first time the existence of the “ministerial exception” to employment discrimination laws.  That exception allows religious organizations, including religious schools, to make employment … Continue Reading

U.S. Supreme Court Considers Limits Of Ministerial Exception

Posted in Discrimination, Education, First Amendment, Retaliation
This post was co-authored by Michael Blacher God said “Be fruitful and multiply.”  But does that make a math teacher at a religious school a “minister?”  The United States Supreme Court will soon decide. On October 5, 2011, the U.S. Supreme Court heard oral argument in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a … Continue Reading

Documentation Of Poor Work Performance Defeated Claims Of Discrimination And Retaliation In Violation Of The ADA

Posted in Disability, Discrimination, Retaliation
How many times have you heard LCW attorneys tell you to timely and accurately complete performance evaluations?  You likely hear this advice at every Employment Relations Consortium training you’ve attended.  A recent case reminds us all how crucial honest performance evaluations and other forms of progressive discipline can be. In the case of Dickerson v. … Continue Reading

Public Employee Right To Petition Claims Must Satisfy A “Public Concern” Requirement – Just As Employee Free Speech Claims Must

Posted in First Amendment, Retaliation
This guest post was authored by David Urban The United States Supreme Court just added another important chapter to its continuing interpretation of the First Amendment rights of public employees.  In Borough of Duryea v. Guarnieri, decided Monday, June 20, 2011, the Court held that public employees cannot assert retaliation claims based on the First … Continue Reading

Coworkers Who Simply Cannot Get Along Do Not Expose Employers To Liability For Hostile Work Environment Or Retaliation

Posted in Employment, Harassment, Retaliation
Does it ever feel like managing the workplace can be like keeping the peace between children fighting in the back seat of the family car?  This was the feeling in a recent out-of-state case where a Court held that an employer was not liable for the alleged hostile work environment created amongst bickering co-workers or … Continue Reading

Oral Complaints Of FLSA Violations Protected Against Retaliation; But Oral Complaints To Whom?

Posted in FLSA, Retaliation, Wage and Hour
The United States Supreme Court’s recent decision in Kasten v. Saint-Gobain Performance Plastics, Corp. makes clear that an employee need not make a written complaint, but can make an oral complaint, in order to be protected against retaliation for filing a complaint regarding violations of the Fair Labor Standards Act (FLSA).  However, did the Supreme … Continue Reading

U.S. Supreme Court’s Expansion Of Title VII Protections To Third Parties Is Just Business As Usual For California Employers

Posted in Discrimination, Harassment, Retaliation
The Supreme Court’s recent ruling in Thompson v. North American Stainless has caused some commentators to sound the alarm warning employers of employee friendly courts and impending lawsuits as a result of the decision.  Hans Bader of the Washington Examiner wrote that the Thompson decision shows the Supreme Court is not pro-business.  Tim Gould of … Continue Reading

Ninth Circuit Holds That Behavioral Issues Warrant Fitness For Duty Examination

Posted in Discrimination, Retaliation
On how many occasions have you found yourself asking whether you can lawfully send an employee for a fitness for duty evaluation?  At one time or another you may have been faced with an employee whose ability to perform their job is questioned.  Sometimes these situations are clear: the employee is actually failing to perform … Continue Reading