Post on 01-Apr-2015
SPEAKERS:
Patricia L. Holland(919) 424-8608Patricia.holland@jacksonlewis.com
M. Robin Davis(919) 424-8609Robin.davis@jacksonlewis.com
Ann H. Smith(919) 424-8610Ann.smith@jacksonlewis.com
SPEAKERS:
Patrick H. Flanagan(704) 940-3419pflanagan@cshlaw.com
Norwood P. Blanchard(910) 332-0944nblanchard@cshlaw.com
Ryan D. Bolick(704) 940-3416rbolick@cshlaw.com
RETALIATORY EMPLOYMENT
DISCRIMINATION ACT (REDA)
RETALIATORY EMPLOYMENT DISCRIMINATION ACT (REDA)
Enacted in 1992
N.C. Gen. Stat. § § 95-240 to 249
Enforced by Employment Discrimination Bureau of NC DOL
ELEMENTS OF A REDA CLAIM
In order to establish a claim against an employer under REDA, the employee must show:
1. He/She exercised a right to engage in a protected activity;
2. He/She suffered an adverse employment action; and
ELEMENTS OF A REDA CLAIM
3. A causal connection exists between the exercise of the protected activity and the alleged retaliatory action. (Close temporal proximity.)
(Smith v. Computer Task Groups, Inc., 568 F.Supp. 2B 603, M.D.N.C. 2008)
WHAT IS A PROTECTED ACTIVITY?
REDA provides that no person shall discriminate or take retaliatory action against an employee who in good faith takes action or threatens to:
File a complaint
Initiate any inquiry, investigation, inspection, proceeding, or other action, or
Testify or provide information to any person regarding the following matters:
WHAT IS A PROTECTED ACTIVITY?
Workers’ Compensation Act
Wage and Hour Act
Occupational Safety and Health Act
Mine Safety and Health Act
Sickle Cell or Hemoglobin C trait
Genetic Testing or Genetic Information
National Guard Service
Domestic Violence Proceedings
Juvenile Justice Proceedings
WHAT IS AN ADVERSE EMPLOYMENT ACTION?
Discharge
Suspension
Demotion
Retaliatory relocation
Other adverse employment action in the terms, conditions, privileges and benefits of employment
Constructive Discharge?
Prior to July 2005, NC DOL position was yes
NC common law does not recognize a constructive discharge as a tort claim.
Whitt v. Harris Teeter, Inc., 359 N.C. 625, 614 S.E.2d 531 (July 1, 2005).
WHAT IS AN ADVERSE EMPLOYMENT ACTION?
WHAT IS A “CLOSE TEMPORAL PROXIMITY”?
One Day – Lilly v. Mastec N. Amer., Inc., 302 F.Supp. 2d 471, 482 (M.D.N.C. 2004).
WHAT IS A “CLOSE TEMPORAL PROXIMITY”?
Less than one month – Martin v. Nationwide Mutual Insurance Company No. 1: 99CV00956, 2001 W.L. 604192 8-9 2001U.S. Dist. LEXIS 9038 24-25 (M.D.N.C. April 20, 2001)
WHAT IS A “CLOSE TEMPORAL PROXIMITY”?
Six years – Tarrent v. Freeway Foods of Greensboro, Inc., 163 N.C.App. 504, 511, 593 S.E.2d 808, 813 (2004)
Avoid:
Asking questions like: Will you behave? You’re not going to fall again are you?
Telling employee that her workers’ compensation claims cost a lot of money.
WHAT IS THE ABSENCE OF A “CLOSE TEMPORAL PROXIMITY”?
2 ½ months – Salter v. E & J Healthcare, 155 N.C.App. 685, 575 S.E.2d 46 (2003)
81 days – Brown v. Sears Automotive Center, 222 F.Supp. 2nd 757 (N.D.N.C. 2002).
3 months – Shaffner v. Westinghouse Elec. Corp., 101 N.C.App. 213, 216 398 S.E.2d 657, 659 (1990)
PRACTICAL TIPS AND DEFENSES
The Good Faith Requirement
Statute of Limitations DOL Charge cannot be filed more than 180 days after last alleged discriminatory or retaliatory act.
Right to Sue Employee must file lawsuit within ninety (90) days of receipt of a Right to Sue letter from the Department of Labor.
PRACTICAL TIPS AND DEFENSES
N.C.G.S. § 95-241 provides a complete defense to any REDA claim.
It states: It shall not be a violation of this Article for a person to discharge or take any other unfavorable action with respect to an employee who has engaged in protected activity as set forth under this Article if the person proves by the greater weight of the evidence that it would have taken the same unfavorable action in the absence of the protected activity of the employee.
If the decision maker did not know that the employee engaged in a protected activity, this fact if proven provides a complete defense Brown v. Sears Automotive Center, 222 F.Supp. 2d 757 (2002).
PRACTICAL TIPS AND DEFENSES
PRACTICAL TIPS AND DEFENSES
In order to file a civil action against an employer, an employee must exhaust administrative remedies.
PRACTICAL TIPS AND DEFENSES
Employee must file a Charge with the Department of Labor.
The Department of Labor has the power to investigate the allegations including obtaining documents from the employer as well as subpoenaing witness.
The Department of Labor may then file suit on behalf of the employee or issue a Right to Sue letter to the employee.
Employer has an opportunity to present a position statement in defense of the employee’s allegations.
WHAT REMEDIES ARE AVAILABLE UNDER REDA? Injunction to stop the continuing violation of REDA. Reinstatement of the employee to the same position held
before the retaliatory action/discrimination or to an equivalent position. Reinstatement of full fringe benefits and seniority rights.
Compensation for lost wages, lost benefits, and other economic losses that were proximately caused by the retaliatory action /discrimination.
If the court finds there was a willful violation of REDA, the court can triple the amount awarded from compensation.
Assess the respondent costs and expenses including attorneys fees for bringing the action.
Questions?
SPEAKERS:
Patrick H. Flanagan(704) 940-3419pflanagan@cshlaw.com
Norwood P. Blanchard(910) 332-0944nblanchard@cshlaw.com
Ryan D. Bolick(704) 940-3416rbolick@cshlaw.com
SPEAKERS:
Patricia L. Holland(919) 424-8608Patricia.holland@jacksonlewis.com
M. Robin Davis(919) 424-8609Robin.davis@jacksonlewis.com
Ann H. Smith(919) 424-8610Ann.smith@jacksonlewis.com