Articles Posted in Workplace Retaliation

Ileana Bermudez’s termination was retaliatory, rules a Massachusetts Appeals Court. After a 2013 on-the-job injury, Bermudez collected workers’ compensation benefits from a staffing agency that placed her at Dielectrics, a Massachusetts-based manufacturer of medical devices. According to Bermudez’s claim, multiple sheets of metal fell on her foot because Kevin Ramos, a Dielectric employee, was negligently operating a forklift. The accident caused a fracture to her right foot, and she was unable to return to work for approximately eight weeks.

When Bermudez filed the workers’ comp claim, she named the staffing agency, Career Group, as her employer. As a result, the benefits came from Career Group’s insurer. After returning to work, Dielectrics hired Bermudez as a full-time employee. Less than two years later, she filed a lawsuit against Dielectrics and Ramos, the forklift operator, alleging negligence and respondeat superior. Shortly after receiving notice of the lawsuit, Dielectrics fired Bermudez with the following notice:

“It is important to Dielectrics that when we promote an employee to a supervisory position the employee has a belief in the [c]ompany and behave[s] with the [c]company’s best interests at heart. Our supervisors need to support Dielectrics in that way so that we can entrust them to spread those same values to their subordinates. When you sued Dielectrics after being compensated for your injury by workers’ compensation, we had little choice but to conclude that you don’t believe in the company and don’t have its best interests in mind. This adversely affects the department you’ve been entrusted to supervise and the company as a whole. As such, we have decided to terminate your employment effective immediately.”

Retaliatory Termination?

In response to her termination, Bermudez sued Dielectrics for retaliatory termination. Because Dielectrics was not technically her employer when the forklift incident occurred, a judge ruled that the medical device manufacturer couldn’t be sued for retaliation. The same judge did, however, give her 20 days to amend her complaint by adding a claim of public policy violation, which she did. A Boston workers’ comp lawyer can help you determine how to proceed if you’ve been injured in a work-related accident.

But Bermudez voluntarily dismissed her claim, then appealed, contending that she had a right to her third-party negligence claim. In response, Associate Justice James R. Lemire stated that a 1971 act “abolished the necessity for an election between filing a workers’ compensation claim and an action against a negligent third party.” Lemire went on to say that the act was again amended in 1991 and that, “the language in the first sentence of the 1971 statute, abolishing the need for an election between remedies, remained the same for the 1991 statute. At the time of Bermudez’s injury, an employee was entitled to pursue a third-party action against any person responsible for her injury after collecting benefits under the act.”

Dielectrics wasn’t convinced. The company argued that the act was created by common law and, thus, didn’t give Bermudez the right to sue. The Appeals Court disagreed, however, holding that state law prohibits retaliatory termination against an employee who exercises a right provided by this particular act. Since Bermudez was exercising such a right when she filed the lawsuit against Dielectrics, and because there is sufficient evidence that her termination was retaliatory in nature, Dielectrics’ move to dismiss the amended complaint was vacated. A MA workers’ comp attorney can help you protect your rights if you’ve been injured on the job. Continue reading

Many employees worry that filing a workers’ comp claim will cause them future problems; they fear termination, employer retaliation, or even the inability to get hired at another company. Fortunately, there are legal protections available to injured workers. Although workers’ comp laws vary from state to state, most states prohibit the termination or demotion of an employee in retaliation for filing a workers’ comp claim. Massachusetts is no exception.

Some states specifically prohibit employers from refusing to hire someone due to a past workers’ comp claim. In Alaska, for example, employers “may not discriminate in hiring, promotion, or retention policies or practices against an employee who has in good faith filed a claim for or received benefits [for workers’ compensation].” Similar provisions exist in Louisiana, Oregon, and Vermont. Although MA and many other states don’t have such specific language with regard to the hiring process, other protections are available to protect workers from being refused employment based on prior workers’ comp claims.

Americans with Disabilities Act (ADA)

The Americans with Disabilities Act (ADA) prohibits any type of discrimination as it relates to the employment process. This includes hiring. As such, if you believe you were refused employment based solely on having previously received workers’ comp benefits, you may have a legal claim against the employer. It is also illegal to discriminate against an employee or job applicant because of a past or present disability. That being said, the ADA only applies to businesses with at least 15 employees. A Boston workers’ comp attorney can help you determine how to proceed if you’ve been injured on the job.

What is Retaliation?

Retaliation can take many forms, from a hostile work environment to outright termination. Some of the most common types of retaliation following a workers’ comp claim include:

  • Negative performance review
  • Failure to promote a deserving employee
  • Demotion
  • Pay cut
  • Workplace isolation or intimidation
  • Negative transfer or reassignment
  • Reduction in benefits or employment terms
  • Disciplinary action without cause
  • Negative employment references
  • Increase or decrease in tasks

In the list above, negative employment references are the most likely concern among job applicants who have previously filed workers’ comp claims. Another concern is the question—have you ever filed a claim for workers’ compensation? Since the law prohibits employers from asking potential employees about past or present injuries or disabilities, this question is usually a no-no. However, in some cases employers may perform a background check to determine if the potential employee has ever filed a claim. Continue reading

Employers are required – by federal law – to provide a safe workplace. If you are concerned that your workplace is unsafe or unhealthy, you have rights. In most cases, the first course of action is to report the hazard to your employer. If the employer is unable, or unwilling, to address the issue, you can contact the Occupational Safety and Health Administration (OSHA), the agency responsible for establishing and enforcing workplace safety guidelines, as well as investigating reports of violations.

OSHA protects workers from injuries, illnesses, and generally unsafe or hazardous working conditions. According to OSHA, employers must:

  • provide a safe, healthy workplace,
  • post the OSHA job safety notice somewhere in the workplace,
  • record all injuries, hazardous material exposures, and deaths, and
  • provide any necessary safety training.

Can I Refuse to Work?

Workers have the right to refuse to work if:

  • they reasonably believe that a workplace hazard presents an immediate risk of serious injury or death,
  • their employer fails to fix the condition,
  • there is not enough time to report the condition to OSHA, and
  • no reasonable alternative exists.

In all other cases, workers should first inform their employer of the concern in writing. Keep in mind that employers aren’t usually making the situation unsafe on purpose. In most cases, the negligence is unintentional. Speaking up may be the only thing you need to do to resolve the problem. If that doesn’t work, you may need to talk to an attorney. A Boston work injury lawyer can help you determine how to proceed if you’ve been injured in a workplace accident.

Employer Retaliation

Both OSHA and state laws protect workers who report violations from employer retaliation. Essentially, this means that a worker cannot be demoted or fired, or have their pay reduced, due to having filed a complaint about workplace safety violations. If employer retaliation occurs, the worker may have his or her former position reinstated, and he or she may receive back pay. A MA work injury lawyer can help you recover damages if you’ve been injured in a work-related accident. Continue reading

The workplace is where Americans spend close to 10,000 hours of their lives, on average. Needless to say, if your place of employment makes you unhappy, you won’t exactly be able to simply endure the negative way it makes you feel, day in and day out.

But how can you be sure if your Massachusetts workplace is simply an unpleasant place to be, or if it has turned into something that is simply not acceptable anymore? How can you tell if work conditions have gone from slightly unbearable, to downright hostile? Use the following information to ascertain whether or not you work in a hostile work environment, and whether or not you have legal recourse to remedy this.

Are you being harassed?

Harassment is a large umbrella that encompasses a wide range of discriminatory behavior. It boils down to this: if you are being singled out or otherwise targeted due to something completely unrelated to your work performance – such as your race, gender, age, sexual orientation or a disability – then you are being unlawfully harassed.

If you are subjected to conditions, work expectations or other behaviors that are not endured by other employees, then you are most likely the victim of harassment. It is not acceptable for a supervisor to force one employee to clean their office, or get them lunch every day, if this is not a task laid out clearly in a job description.

Harassment can take many forms, from threats of firing for not performing tasks unrelated to your job to being mocked openly in front of your coworkers by a supervisor. If the conduct of a coworker, supervisor or anybody else in the workplace makes you uncomfortable, scared or emotionally affected in a way that it negatively impacts your ability to perform your job, then that is textbook harassment, which is illegal.

Is someone else being harassed?

You can righteously make the claim that you are working in a hostile work environment even if you aren’t the subject of any harassment.

The workplace needs to be a safe, accepting space for all of its workers. If there is somebody else who is consistently victimized, in plain view of other employees, then this can create a hostile work environment for others even if they aren’t directly being harassed. Seeing somebody else be harassed can be equally alarming and traumatizing for the person who is actively being treated poorly.

Sexual harassment

Perhaps the most egregious condition that causes a hostile work environment is sexual harassment. If you are ever subjected to uncomfortable, unwanted sexual advances by an employee, supervisor or other person in the workplace, this is unacceptable and highly illegal. Sexual harassment can be physical or verbal in nature, and can also take the form of various threats, which may be carried out if sexual favors are not performed.

What can be done?

Instances of harassment, when possible, should first be discussed with the offending person. Calmly tell them that their behavior is causing you undue harm and stress, and ask them to stop the behavior immediately. Keep a written, dated record of any instances of harassment that occur.

If you are too scared or uncomfortable to bring up your concerns to the offender personally, or if you have told them to stop and the behavior has not stopped, bring the issue forward to your human resources representative. From there, any number of actions may be taken. Likely, a workplace investigation will take place, ideally from an independent, outside investigator with no stake in the company.

If this course of action doesn’t cause the behavior to stop, then you may wish to file a complaint with the Equal Employment Opportunity Commission, which is the federal agency that enforces civil rights laws in the workplace. The EEOC can investigate complaints regarding harassment, as well as instances where an employee was unlawfully retaliated against for formally filing a complaint to stop harassing behavior. Continue reading

In a particularly challenging year for Uber, the company behind the driver-for-hire app has terminated over 20 employees in an effort to deal with accusations of sexual harassment and other issues. On Tuesday, Uber made an internal announcement to its 12,000 employees about the decision, following a long list of complaints from former employees.

215 Workplace Incidents

According to reports, a total of 215 claims of workplace incidents have been filed against Uber. The breakdown of these complaints, in order of frequency, is as follows:

  • Discrimination
  • Sexual harassment
  • Unprofessional behavior
  • Bullying
  • Other types of harassment
  • Retaliation
  • Physical security
  • Wrongful termination

An internal investigation into these claims is currently underway. Since the investigation began, Uber has fired 20 employees, and another seven have received a final warning. According to the ride-hailing tech giant, 57 claims are still under review and no action is being taken in 100 of the claims. A Boston employment law attorney can help you determine how to move forward if you’ve been a victim of workplace sexual harassment.

Blogging about Harassment

Most of the complaints originated in the company’s San Francisco headquarters, but complaints have come from Uber locations across the globe. Following former employee Susan Fowler’s claims on her blog that she experienced gender bias and sexual harassment while working for Uber, the company’s CEO, Travis Kalanick, launched the internal investigation.

The news of the firings is just the most recent in a string of scandals that have been plaguing Uber for months. Earlier this year, the company’s senior vice president of engineering was asked to resign when Uber discovered that he hadn’t disclosed past allegations of sexual harassment. Ed Baker, another Uber exec, left the company abruptly under unknown circumstances in March.

Technology Theft and Bad Business Practices

And that’s not all. Google’s self-driving car company, Waymo, has brought a lawsuit against Uber, accusing the company of stealing its technology. As a result, Anthony Levandowski, an Uber engineer who had previously worked for Google, was fired last month. Beyond the lawsuits and allegations of workplace misconduct, Uber is also battling an image of bad business practices, such as the use of a tool designed for the purpose of evading regulators.

Is Uber in Denial?

“(Fowler’s) blog shocked me,” said Liane Hornsey, the head of Uber’s HR. “But, what did surprise me, was when I did the listening sessions, this didn’t come up as an issue. It wasn’t one of our big themes. Other things came up that are in that area, that our values are masculine and a little aggressive, but the harassment issue, I just didn’t find that at all.” A MA employment law attorney can help you recover damages if you’ve been harassed in the workplace.

Sexual Harassment in the Workplace

Uber is far from the only company with sexual harassment issues. This type of inappropriate workplace behavior is actually quite common. A study of 500 respondents and 92 U.S. companies produced the following results:

  • Approximately 54 percent (272) of respondents had been the victim of some type of workplace sexual harassment.
  • Of those, 27 percent had experienced harassment by a colleague, and 17 percent were harassed by a
  • Women made up the majority of harassment victims at 79 percent.
  • Of those harassed, 12 percent claim to have received threats of termination if they refused the advances and requests of their harassers.

Continue reading

In 2011, a railroad worker filed a complaint against Pan Am Railways, Inc., claiming he was subjected to retaliation after filing a Federal Railroad Safety Act (FRSA) whistleblower complaint. The Occupational Safety and Health Administration (OSHA) investigated the complaint against the North Billerica-based railroad and decided in favor of the employee. A federal appeals court has agreed, ordering the railway company to pay $260,000 in compensatory and punitive damages.

The employee, who worked in a Waterville, Maine rail yard, was accused by his employer of dishonesty in connection to an injury-related whistleblower complaint. For their retaliatory actions, Pan Am Railways, Inc. was ordered to compensate the employee to the tune of $10,000, pay $40,000 in punitive damages, and take corrective actions so that a similar incident doesn’t occur in the future. The railway company appealed.

Appeals Denied, Punitive Damages Skyrocket

To understand workplace assault we must first understand what assault actually means. Many people incorrectly assume that assault requires physical violence. In fact, even a verbal threat can be assault; it’s the intent that matters. For example, if a supervisor threatens an employee’s life if the employee doesn’t complete a project by Friday, the supervisor may be guilty of assault. However, if the supervisor and employee are buddies, and the “threat” was an obvious joke, it wouldn’t be considered assault.

Generally speaking, assault occurs when a person intentionally harms or threatens to harm another person. Simple assault doesn’t require physical injury, and aggravated assault typically involves a deadly weapon or serious physical injury. Assault crimes usually conjure images of bar fights or domestic disputes, but workplace assaults are actually quite common. Work environments can become tense due to confined spaces and close groupings of people who are required to see each other regularly, sometimes every day. Personality conflicts and power struggles may escalate in this environment, erupting into workplace violence with little to no warning.

Some incidences of workplace assault are serious, even fatal. We’ve all seen mass media coverage of disgruntled workers who “shoot up” the office, killing everyone from the supervisor who disciplined them to the secretary and mail-room clerk who just happened to be in the wrong place at the wrong time. Other cases of workplace assault are much less serious. A Boston personal injury lawyer can help if you’ve been a victim of assault in the workplace.

When is the Employer Liable?

In addition to the supervisor or employee who is accused of assault, the employer can also be liable for the victim’s injuries under certain circumstances, including:

  • If employer negligence contributed to the incident.
  • If the employer intentionally played a role in the assault.
  • If the employer is not covered by workers’ compensation.

The first of the above bullet points addresses how employers respond to hostile work environments. If an employer knows about, or should have known about, threatening behavior and fails to take action, it may be liable if the person responsible for the behavior harms a co-worker. This may even be true if the person in question is a non-employee, such as a vendor or contractor.

When is Only the Employee Liable?

On the other hand, an employee who assaults a co-worker will likely be exclusively liable if:

  • The employer was unaware of the employee’s conduct.
  • The conduct was not related to the accused’s job.
  • The conduct was not encouraged or tolerated by the employer.

Workplace assault can result in criminal penalties, but it can also result in a civil action, such as when the victim brings an injury claim to recover financial damages for medical expenses, pain and suffering, and lost wages. A MA injury lawyer can help you determine how to obtain compensation for medical expenses, pain and suffering, lost wages, and other associated costs if you’ve been harmed in a workplace assault . Continue reading

Laws protecting employees from workplace discrimination are incredibly important to providing safe, friendly work environments for all Americans in the workforce. However, providing additional laws that prevent any employer from unfairly punishing them because they filed a complaint, assisted an investigation, or didn’t fall in line with a supervisor’s lie in order to protect them may be just as important.

According to the Equal Employment Opportunity Commission, workplace retaliation “is the most frequently alleged basis of discrimination in the federal sector and is the most common discrimination finding in federal sector cases.” However workplace retaliation can happen anywhere, from a Burger King in Cambridge to a white collar investment firm in New York City.

If protection didn’t exist for those who call out obvious acts of discrimination, misconduct and other, more illicit activities, then those kinds of behavior would go on, unreported and indefinitely, because the individual or individuals committing the misconduct may be in a position of power over the individual or individuals who they are tormenting.

People will endure a lot of suffering if they have few options for employment and need to be paid each week in order to keep up with bills and other expenses. Unfortunately, many times people who have the most to lose if they are fired from their jobs are the ones who are more likely to be discriminated against in the workplace – such as disabled individuals and immigrants of minority races or religions.

The protections offered by the Equal Employment Opportunity Commission ensure that, even if you are filing a complaint against a direct supervisor or somebody much higher up the workplace hierarchy, that you may not be punished, demoted, lose benefits, have hours cut, or be otherwise negatively impacted as a direct retaliation to your complaint.

These protections don’t just apply to complaints either. Protections against retaliation exist in the cases of:

  • Calling for an investigation, being a witness in a case or filing your own lawsuit
  • Communicating with a manager or supervisor about discrimination happening in your place of employment, including harassment
  • Answering questions during an investigation into alleged harassment
  • Refusal to follow orders that could be deemed as a discriminatory action
  • Resisting sexual harassment or advances, or preventing somebody else from being sexually harassed
  • Requesting a special accommodation to alleviate a disability or for a religious practice
  • Asking your managers or co-workers about salary information to assess if there is wage discrimination occurring.

It is important to note that employees are only fully protected from retaliation due to their participation in a complaint process – whether it is the actual filing of a complaint, participating in an investigation or being a witness in a hearing. Employers may still discipline or discharge an employee if they can provide a non-discriminatory, non-retaliatory reason for doing so.

If an employer does not find a legitimate reason to fire an employee, they are still not allowed to engage in any actions that would discourage that employee or any other employee from filing a complaint in the future.

Such behavior could include reprimanding or humiliating the employee in front of other coworkers, transferring the employee to a “less desirable” position, physically, verbally or mentally abuse the employee, threaten to report them to outside authorities (like immigration or the police), spread false rumors about them or make their work life more difficult (such as scheduling them during known family conflicts). Continue reading

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