Lawyers for employees who have complained about some form of discrimination often tell their clients to be on the lookout for any sort of retaliation.
The hope is that the employer will mess up and punish the employee. Then the attorney can add retaliation to the lawsuit. That raises the stakes considerably, because employees can lose the discrimination claim and still collect big bucks for retaliation.
It should come as no surprise that employees look for subtle as well as blatant retaliation. In one recent case, the employee thought that being asked to fill in (without being paid extra) for another employee who was on was retaliation for her own discrimination complaint.
Recent case: Roselyn Martin worked for the Metropolitan Transportation Authority for years. She and her bosses often disagreed about the quality of her work performance and her classification.
Then she took medical leave. After returning to work, she was asked to fill in for another employee.
Martin asked her manager for extra pay. He turned her down, explaining that everyone was expected to pitch in, and no one gets extra pay for doing so. She sued, alleging that assigning her extra work without extra pay was retaliation.
The court tossed out her case, concluding that such a minor matter was not enough on which to base a lawsuit. It pointed out that others had covered for Martin when she was out. (Martin v. MTA Bridges & Tunnels, No. 06-CV-3125, SD NY, 2009)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Investigate even when employee complains belatedly
- Be wary of disciplining employees soon after union activities
- Don't ignore ergonomics: Risks remain, OSHA can still fine
- Don't treat pregnancy-related absences differently than other medical absences