One of my favorite references to the Shirley Sherrod fiasco last week came from Peter Sagal, host of National Public Radio’s weekly radio broadcast “Wait, Wait, Don’t Tell Me.” “Wait, Wait, Don’t Tell Me” is an entertaining quiz show based on the week’s news. When Sagal was discussing USDA Secretary Tom Vilsack’s firing of Sherrod based on his viewing a two-minute video segment from Sherrod’s 45-minute speech, Sagal quipped:
“This explains why Agriculture Secretary Tom Vilsack thinks that the Wizard of Oz is a black and white film about a farm girl in Kansas.”
Sagal’s comment made me think of some employers I’ve represented and the risks associated with firing someone without getting the employee’s side of the story. First, the employer’s conclusions about what happened will often be wrong. Second, if the employee later sues for discrimination or retaliation, the employer’s not getting the employee’s side of the story makes it look like the employer was acting out of a discriminatory or retaliatory motive. The employee, now turned plaintiff, will argue that the employer did not get the employee’s side of the story because the truth did not matter — what was really motivating the discharge was the employee’s race, age, sex, protected activity, etc.
Employers getting the employee’s side of the story before taking any disciplinary action make better and safer decisions.
The Americans With Disabilities Act turns 20 on July 22nd. To celebrate, the EEOC will sponsor a panel of ten civil rights experts discussing the landmark law. I wish I could attend the Washington D.C. event, which is described here. We’ve been expecting the final regulations under the ADAAA this month. I wouldn’t be surprised if the EEOC brings them to the birthday party on Thursday!
Thanks to the Employment Law Group for a thorough summary of the whistleblower provisions in the new financial services reform bill passed by the senate. The article, including a link to the new law, can be found here.
Some of the new provisions of the law include:
- Section 922 provides for remedies including, among other things, double back pay with interest;
- Section 1057, which provides whistleblower protection for financial services employees, permits employees to prevail in a lawsuit if they can prove that protected activity was a “factor which, alone or in connection with other factors, tends to affect in any way” in an employer’s decision to take unfavorable action regarding the employee unless the employer can show by clear and convincing evidence that the action would be taken in absence of the protected activity; and
- Section 929 expands Sarbanes-Oxley coverage by making clear that the law applies to “employees of any subsidiaries of publicly-traded companies whose financial information is included in the consolidated financial statements of [a publicly] traded company” even when the company “has few, if any, direct employees, and instead employs most of its workforce through non-publicly traded subsidiaries.”
Whistle blower cases can be difficult cases for employers. Juries and judges find it easy to believe that someone, i.e. an employer, retaliates against someone, the employee, for complaining that the employer’s actions are unlawful or for going to an oversight agency or body. As a result, after someone engages in whistleblowing activity, any adverse action an employer takes is suspicious. And the closer the adverse action is to the whistleblowing activity, the more it appears retaliatory. In addition, juries and judges do not like retaliation and, when they find that an employer retaliated for whistleblowing activity, they often award large judgments. This new law continues the recent trend of laws expanding whistleblower protections to more employees under more circumstances
In typical fashion, now that we have passed July 4th, summer has arrived. Nothing beats summer in Seattle.