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HR Resource Blog

This blog is published by the attorneys in Capehart Scatchard’s Labor and Employment Group. On this site, employers and human resources professionals will find useful tips as to how to keep the workplace, and workplace policies, in compliance with state and federal employment laws.
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Are You Ready For The Revised New Jersey Family Leave Act?

As many of you already know, the New Jersey Family Leave Act (“NJFLA”) was significantly expanded through Assembly Bill A3451, signed into law by outgoing Governor Phil Murphy on January 17, 2026, with most of these changes becoming effective very soon on July 17, 2026. These amendments will have a major effect on many workplaces by extending job-protected leave rights to a larger group of additional workers by inter alia lowering employer and employee eligibility thresholds and by similarly vesting employees with greater reinstatement rights after taking certain protected leaves of absence.

Here is a summary of the important changes that have been made to the NJFLA.

Employer Threshold: The coverage threshold for applicability of the law to an employer drops from the current 30 employee requirement to 15 employees (that significantly are to be counted wherever they are, even if outside of the state, provided at least one employee works in New Jersey). This requirement applies to employers with 15 or more employees starting July 17, 2026, with further phase-ins for even smaller employers in 2027 (10 plus employees) and 2028 (5 plus employees).

Employee Eligibility Threshold: Eligibility thresholds are also being reduced for employees. The current 12 months of service requirement and 1,000 hours mandate is being reduced to 3 months of a service threshold and 250 hours worked in the preceding 12-month period. Both this change, and the revision to the Employer coverage threshold, will expand how many employers are covered by the NJFLA and increase the number of employees now eligible to receive NJFLA leave.

Job Protection for TDI/FLI Recipients: Employees receiving Temporary Disability Insurance (“TDI”) or Family Leave Insurance (“FLI”) benefits will be entitled for the very first time to job restoration to their original or an equivalent position. This change is major because it now creates new job protection for those simply collecting paid benefits even if they do not meet standard NJFLA (or even FMLA) eligibility criteria, although there is some ambiguity in the statutory language regarding the scope of this new restoration right.

Leave Sequencing: Eligible employees can now choose the order in which they use New Jersey Earned Sick Leave, TDI, or FLI benefits, though they may not receive multiple paid leave under these laws simultaneously for the same period.

Outside of the foregoing changes, core aspects of the NJFLA remain in effect. The NJFLA continues to provide up to 12 weeks of unpaid, job-protected leave within a 24-month period for qualifying family-related reasons, such as bonding with a new child or caring for a family member with a serious health condition. The NJFLA likewise still does not provide leave for an employee’s own serious health condition (which remains covered under the FMLA and the TDI).

In light of these upcoming changes to the NJFLA, it is wise for employers to update employee handbooks, begin taking steps to be ready to track employee eligibility under these new threshold standards referenced above, and commence training staff on the expanded leave, reinstatement rights, and continuing anti-retaliation obligations that protect persons who exercise rights protected under the NJFLA, TDI and FLI laws. That way, you will be ready to comply with the new changes that are now just a short two months away from becoming effective.  

The Legal Importance of Interactive Process

One of the most important duties that is imposed by anti-disability discrimination laws is the obligation to accommodate a disabled employee in performing the essential job duties of a desired employment position. As part of that obligation, both federal and New Jersey state law impose a duty upon the employer to engage in an interactive dialogue process after an employee requests an accommodation as part of the required effort to work towards finding a suitable accommodation. One of the areas where employers get in the most trouble in complying with anti-disability discrimination requirements is in failing to adequately engage in this required interactive process.

Under the law, the interactive process is deemed to be a two-way street where both the employer and the employee bear a good faith duty to attempt to work constructively in an effort to either find a potential accommodation or determine that no such accommodation is available in the given circumstances. The reason that failing to follow the process can get employers in so much legal trouble is because it is an easy employment law requirement for judges to know and understand and in almost every conference I have had with a judge one of the first questions that I get asked in these cases is was an interactive process undertaken and how did its outcome affect the dispute at hand.

So, what does the interactive process require? It requires active dialogue and the exchange of possible ideas to resolve an accommodation request. While many employers would love to deny an accommodation request summarily, employers are wise to take advantage of the opportunity of utilizing the process to gain meaningful information from the employee, such as medical information and possible alternative accommodation options, that may allow for a better resolution of the request. Establishing as an employer that you made every effort to work with a disabled employee to find a workplace accommodation serves to buttress the defense against any discrimination lawsuit for failing to provide those requested accommodations.

Along with actually engaging in the interactive process, documentation of those efforts is also critical to establishing needed defenses if a challenge is raised to process compliance in any discrimination case. Where possible, exchange accommodations ideas and requests for information through writings, such as emails, with the requesting employee, so you have that needed paper trail of compliance regarding your communications through this process. If the interactive process is more verbally oriented, always make sure to follow up in some writing what was addressed as part of the process, so you have confirmatory documentation of what was discussed and how issues were ultimately addressed. I am also a big fan of using some form of written documentation in describing the outcome of the process, whether this is a denial or acceptance of an accommodation request. When there is a denial, the written documentation should explain why. When any type of accommodation is granted, there should likewise be documentation outlining the scope of the agreed upon accommodation so there is no confusion regarding how job duties have been accommodated. In both situations, this is again effective use of documentation to set up possible defenses should any legal issues arise out of the interactive process.   

Therefore, in sum, always remember the importance of the interactive process whenever a workplace accommodation request is raised by an employee in your workplace. Engage in that process in good faith and always document your efforts as part of the process to establish a written history of your efforts in case any subsequent litigation ensues. You will be happy that you did.            

Employee Health and School Safety: Terminations Under the New Jersey Law Against Discrimination

Does an allergic reaction qualify as a disability under the New Jersey Law Against Discrimination (LAD)? Is it unlawful to terminate someone due to symptoms from an allergic reaction? In a recent case, Dechert v. Totowa Bd. of Educ., No. A-0545-24, 2026 N.J. Super. Unpub. LEXIS 436 (App. Div. Mar. 11, 2026), the New Jersey Appellate Division considered these issues in the context of a school district employee. The Court ultimately concluded that the allergic reaction at issue did not qualify as a disability, and even if it had, the school board was within its rights to terminate the employee in order to protect the welfare of both the employee and the students.

Plaintiff, Stacie Dechert, was employed as a special education aide for the Totowa School District during the 2022–23 school year, providing one-on-one assistance to children with severe disabilities aged 6 to 8. From the start of her employment, Plaintiff disclosed that she had a pre-existing condition, sciatica. She never had any difficulty performing her job because of this condition. Plaintiff routinely wore a back brace at work and testified at a deposition that “she never experienced any negative treatment…due to her back issues.”

In April 2022, Plaintiff’s sciatica flared, and her doctor prescribed multiple narcotic pain medications for use as needed. On May 4, 2022, she injured her back when she was attempting to prevent a student from leaving the classroom. She received permission to go home during the school day to retrieve her back brace. While at home, she took half of a Flexeril and a half of Oxycodone, two different narcotics, for pain and returned to work.

Upon her return to work, Plaintiff experienced severe stomach pain and shortness of breath. She told a student who was in the bathroom to tell another teacher that she was not feeling well and could not breathe. She went in and out of consciousness in the restroom. The school nurse found her on the floor of the restroom, in a state resembling a seizure. Police administered oxygen, considered Narcan, and Plaintiff was transported to the hospital for treatment of an allergic reaction.

On May 6, the superintendent advised Plaintiff that she should resign from her employment and reapply the following school year. She declined, providing a doctor’s note on May 12 clearing her to return to work for her back injury. The note made no mention of the May 4 incident related to the medication she had taken. That same day, the school district terminated Plaintiff’s employment, advising that it was terminating her “with the students’ and staff’s best interests, safety, and welfare in mind…” and that they “firmly believe[d] that “there was good cause and justification to support [the] decision.”

In August 2022, Plaintiff filed suit under the LAD, asserting that she was disabled due to sciatica and alleging discriminatory termination. Both parties later moved for summary judgment. At oral argument, Plaintiff claimed that her allergic reaction constituted a disability. The school district argued that the Complaint alleged that sciatica was her only disability and that she was terminated due to her allergic reaction, which is not a disability.

The trial Court found in favor of the school district. It held that Plaintiff’s only disability was sciatica and there was no evidence of discrimination. Plaintiff appealed, arguing that the court erred by failing to consider her allergy as a separate disability.

On appeal, the Court upheld the trial court’s findings.  It found no evidence that Plaintiff’s sciatica played any role in her termination, and her one-time reaction to medication did not meet the LAD’s definition of a disability. Even assuming the reaction qualified as a disability, the school district had a legitimate, non-discriminatory reason for termination: protecting the welfare and safety of students and staff.

This case is significant because it underscores the fact that not all medical conditions constitute a disability under the LAD. It also reinforces that, even if an employee has a medical condition, termination may be lawful if continued employment could compromise the safety or welfare of others.

Endometriosis and Its Qualification as a Disability Under the Americans with Disabilities Act

Employment discrimination cases under the Americans with Disabilities Act (“ADA”) often turn on whether the employee’s medical condition qualifies as a disability under the statute. While some medical conditions clearly fall within the statute, others remain legally unsettled. In the case of Proffitt v. North Carolina Department of Public Safety, No. 5:23-CV-00306 (E.D.N.C. July 25, 2025) a federal Court faced an unsettled question regarding severe menstrual pain and endometriosis constituting a disability under the ADA. The Court found that these medical conditions can qualify as disabilities in certain circumstances.

By way of background, Plaintiff Christian Proffitt had experienced painful menstrual cycles since middle school. She claimed that the pain on the first day of her cycle each month was so severe that she was confined to her bed. For more than a decade, she managed her pain with 800 milligrams of ibuprofen. Thereafter, her doctor prescribed various opioids for her pain. In March 2024, Proffitt received a formal diagnosis of endometriosis.

Proffitt, began working for North Carolina Department of Public Safety (NCDPS) in December 2020 as a Juvenile Court Counselor (JCC) trainee. The JCC training program lasts 12–24 months, and successful trainees may be promoted to permanent positions.

In April 2022, Proffitt went to the emergency room due to pain from her menstrual cycle and missed two or three days of work. She provided her supervisor with a doctor’s note. On May 6, 2022, Proffitt spoke with her supervisor by phone about two medical issues, including her heavy menstrual cycles and painful cramps. She explained that she might need to work from home for one day each month. Endometriosis was also discussed, although Proffitt did not have a formal diagnosis at this time. During this conversation, Proffitt’s supervisor allegedly criticized the amount of medical leave she had taken from work, stating that she had used an excessive amount of time off and that this reflected poor work ethic.

On May 12, 2022, Proffitt, her supervisor, and the Court Counselor Chief met to discuss concerns about Proffitt’s work performance. During the meeting, Proffitt again mentioned that she might need to work from home due to her menstrual pain. The Court Counselor Chief denied the request, stating that if he allowed her to work from home, he would have to allow every woman in the office to do the same. Proffitt claims that during this meeting she was told she would not be promoted and would be terminated at the end of her training period. NCDPS disputes that this was said. That same day, Proffitt submitted her resignation.

Proffitt then filed a lawsuit against NCDPS asserting several legal claims, including a claim that NCDPS violated her rights under the ADA. The parties then filed summary judgment motions against each other. Within their motions the parties disputed, among other things, whether Proffitt was considered disabled under the ADA.

The Court analyzed whether Proffitt’s painful menstrual cycles constituted a disability under the ADA, meaning whether it qualified as an impairment that substantially limited one or more major life activities. To demonstrate the severity of her condition, Proffitt relied on several types of evidence. She submitted online posts in which she described her debilitating symptoms and their impact on her daily life. She testified that she had missed college classes because of her cramps, and that the pain caused her to vomit and lie paralyzed in bed for an entire day. She also submitted doctors’ notes documenting that her painful menstrual cycle caused her to miss work.

Although federal courts have historically been divided on whether endometriosis qualifies as a disability under the ADA, the U.S. District Court for the Eastern District of North Carolina concluded that Proffitt had presented sufficient evidence that her endometriosis substantially limited her major life activities. Specifically, having to be bedridden at least one day a month with pain and vomiting, interfered with her ability to engage in multiple major life activities. As a result, Proffitt’s ADA claim survived summary judgment and was allowed to proceed. The case ultimately settled.

The key takeaway from this case is that determining whether someone is disabled under the ADA is a complex and fact-specific issue. When an employee reports a medical condition and requests an accommodation, management should avoid responding with an immediate “no” even if the condition initially appears mild. Each accommodation request must be evaluated carefully, with attention to the individual’s specific circumstances, before a decision is made as to how to respond.

The Interview Process: Avoiding Legal Pitfalls Before Day One

Hiring the right employee is one of the most important decisions any organization can make. However, when handled improperly, the hiring process can expose an employer to significant legal risk. Below are five key issues that employers should keep in mind to help ensure that their interviewing process is both effective and compliant with the law.

1.   Standardize the Hiring Process

Each organization should establish a consistent interview structure across all candidates for each specific position. All candidates should be asked the same core, job-related questions designed to assess qualifications, skills, and relevant experience. A standardized approach promotes fairness, reduces bias, and ensures that hiring decisions are based upon objective and legitimate factors.

2.  Take Objective Notes During the Interview Process

Interviewers should take notes during interviews that directly relate to the essential functions of the position, such as communication skills, relevant experience, and professionalism. Interview notes should remain factual and professional, avoiding subjective opinions or personal comments. If a hiring decision is later challenged, these notes may serve as key evidence demonstrating that the process was fair and lawful.

3.  Provide Appropriate Training for Managers Who Conduct Interviews

Untrained interviewers can inadvertently expose an organization to significant legal risk. Managers involved in hiring should receive regular training on lawful vs. unlawful interview questions, how to respond to accommodation requests during interviews, and appropriate documentation practices. Investing in interviewer training not only reduces the legal risk but also creates a professional and consistent experience for those being interviewed.

4.  Avoid Asking Personal Questions During an Interview

Even seemingly innocent small talk during interviews can cross legal lines and may be seen as discriminatory in nature. Interviewers should exclusively focus on questions about the essential functions of the job and whether or not the candidate can perform those job functions. Questions related to age, race, pregnancy, marital or family status, religion, disability, health conditions or national origin should be avoided.

5.  Do Not Use Automated Screening Tools Without Human Oversight

As organizations increasingly rely on automated hiring tools, it is essential to maintain human oversight. Employers remain responsible for potential algorithmic bias and must understand how screening software evaluates candidates. Regular oversight of these systems can help ensure that the software does not disproportionately exclude protected groups.


The interview process is an employer’s first chance to show its commitment to compliance, fairness, and professionalism and it sets the tone for the entire employment relationship. By implementing the strategies outlined above, an organization can create a positive experience with a focus on legal compliance.

Defense Win: Court Rejects Hostile Work Environment Claim Based on a Single Slur

Determining what constitutes a “hostile work environment” is rarely straightforward. If a coworker makes a single offensive comment based on an employee’s membership in a protected class, and the employee is deeply offended, does that rise to the level of a hostile work environment? What about two comments? Three? As attorneys often say, it depends.

Summary of the Case:

In the case Charles v. County of Lycoming, Pennsylvania et al., No. 4:21-CV-00883 (M.D. Pa. Dec. 31, 2025), the U.S. District Court for the Middle District of Pennsylvania addressed this question and concluded that a single offensive remark, standing alone, was not enough.

The plaintiff, Ruth Charles, is Asian and had been employed as a clerk in the Lycoming County District Attorney’s Office since 2013. On April 6, 2020, a coworker made a comment that included the racial slur “chinks.” The remark was loud enough for Charles and another employee to hear. Both employees reported the incident to a supervisor. Charles reported the incident by e-mail stating: “I am Asian and that word is one of the most racist/demeaning words you could use towards an Asian person. I understand it’s not about me, but it was very inappropriate to hear.”

The supervisor reported the incident to Human Resources and the District Attorney and met with both Charles and the coworker who made the comment. After that meeting, there were no further reports of racially offensive remarks in the workplace.

Later that month, on April 30, an assistant district attorney sent an email to the District Attorney identifying four instances in which Charles failed to perform tasks and acted inappropriately. On May 1, the assistant district attorney reported additional performance issues related to Charles. Also on May 1, Charles’ supervisor sent an email to the District Attorney describing Charles as extremely hostile during a meeting and noted her use of inappropriate language. A paralegal separately documented concerns about Charles’ work performance via email. Specifically, that Charles was sending her work to be completed elsewhere and was questioning her responsibilities. That same day, Charles was informed that her employment was terminated due to insubordination.

Charles subsequently filed suit, alleging violations of Title VII of the Civil Rights Act and the Pennsylvania Human Relations Act (“PHRA”). She claimed she was subjected to a race-based hostile work environment and that her termination was the result of discrimination and retaliation for complaining about the racial slur.

The Court dismissed Charles’ hostile work environment claim, finding that she failed to establish that she was subjected to harassment that was severe or pervasive, which is a required element of such claims. While the court acknowledged that a single incident can be sufficient to create a hostile work environment in rare cases, it emphasized that the incident must be “extreme enough to amount to a change in the terms and conditions of employment.” In this case, there was no evidence that the comment interfered with Charles’ work performance or injected ongoing hostility into the workplace. As the court summarized, this was “the unfortunate case of an isolated offensive comment over an employee’s seven years of employment that does not rise to the level of creating a hostile work environment.”

Charles’ discrimination and retaliation claims also failed. The court found no evidence that her termination occurred under circumstances giving rise to an inference of discrimination or that it was retaliatory in nature. The employer articulated legitimate, non-discriminatory reasons for her termination, namely, repeated incidents of insubordination, and Charles failed to show those reasons were pretextual.

Key Takeaways for Employers:

While offensive language has no place in the workplace, it is a rare and extreme case in which a single incident, without more, will rise to the level of a hostile work environment under Title VII or similar state laws.

NJ Senate Approves New Bill: A Possible Game-Changer for Employee Leave Rights and Employer Responsibilities

On December 22, 2025, the New Jersey State Senate passed a pivotal bill that could drastically reshape employee leave rights and employer obligations in the state. It is essential for employers to start assessing the potential impact of this legislation, which now moves to the Assembly for review before it is presented to the governor for final signature.

Currently, New Jersey’s Family Leave Act (“NJFLA”) provides employees working at companies with 30 or more employees up to 12 weeks of leave to bond with a new child, care for a sick family member, or for other qualifying reasons, with guaranteed job reinstatement after the leave. To qualify, employees must have worked for their employer for at least 12 months and must have worked a minimum of 1,000 hours in the previous year.

The proposed bill, however, significantly eases these requirements. If passed, employees would only need to have worked for their employer for 6 months and have logged 500 hours in the past year to qualify for leave and job protection. Furthermore, the bill reduces the threshold for employers, meaning businesses with as few as 15 employees (down from the current 30) would be subject to these provisions. Since employees of public entities are already eligible for NJFLA leave regardless of the size of their employer, the only change affecting public entities would be the shortened eligibility period, six months of employment and 500 hours worked in the past year.

It is important to note that the bill does not alter the fact that employees who take NJFLA leave are eligible to receive up to 85% of their average weekly wages, subject to the maximum weekly benefit cap, while on leave through the New Jersey Family Leave Insurance (“NJ-FLI”) program.

For businesses, this legislation represents a major shift. With fewer eligibility requirements, a wider range of employees would be able to take leave with guarantees of job protection.  This could result in increased administrative responsibilities for employers, who would need to ensure compliance with these new provisions.

While a limited number of states already provide job protection for employees outside the scope of the Federal Family and Medical Leave Act (FMLA), New Jersey’s approach would position it as a leader in this area. As the bill edges closer to final approval, it is essential for businesses to start preparing for its potential passage and assess how these changes may impact their policies.

Remote Work, the Post-Pandemic Workplace, and ADA Accommodations: What do Employers Need to Know?

The COVID-19 pandemic reshaped the modern workplace in many ways, most notably through the rapid, widespread shift to telecommuting. As remote work became the norm, employees and employers adjusted to new at-home routines. Because work was already happening off-site, many employees continued working even when sick or unable to commute, altering traditional expectations around “sick days.” Similarly, questions about remote-work accommodations under disability laws surfaced less frequently, since working from home had become standard for nearly everyone.

Now that private businesses and public entities are calling employees back to the office, many requiring full, five-day-a-week in-person attendance, employers are seeing a new wave of accommodation requests by employees seeking to continue working remotely due to a disability or medical condition. For instance, an employee undergoing cancer treatment who is immunocompromised might previously have taken a medical leave of absence, but after the pandemic demonstrated that many jobs can be performed remotely, that same employee may now request a remote-work accommodation instead of leave. Similarly, an employee with anxiety or agoraphobia, which makes commuting or on-site work difficult may argue that remote work is a reasonable accommodation. But is it?

Understanding Accommodations under the Americans with Disabilities Act

The Americans with Disabilities Act (“ADA”) applies to employers with 15 or more employees, though some state laws such as those in New Jersey extend similar protections to smaller employers. Under the ADA, employees with disabilities may request reasonable accommodations from their employer. When they do, the employer must participate in the interactive process, a collaborative dialogue aimed at understanding the employee’s limitations, reviewing the essential functions of the job, and identifying potential accommodations that would allow the employee to perform those job functions without causing undue hardship. If a reasonable accommodation is available that enables the employee to meet the essential job requirements and does not impose an undue hardship on the employer, the employer is obligated to provide it.

Is Remote Work a Reasonable Accommodation?

The answer to this question requires fact specific analysis of the circumstances at hand. A central question in this analysis is whether the employee can perform the essential functions of the job remotely under normal, non-pandemic conditions. For some positions, in-person responsibilities are fundamental. For example, employees who conduct laboratory testing or perform hands-on tasks may not be able to fulfill their core duties from home. In such cases, a fully remote schedule would remove essential job functions, which is something the ADA does not require employers to accommodate.

At the same time, employers should not adopt a blanket policy denying all remote work accommodations. Each request must be evaluated individually, with consideration given to the following factors: (1) whether the employee can perform all essential job functions remotely; (2) whether the requested accommodation would impose an undue hardship on the business; and (3) whether alternative accommodations could meet the employee’s needs while still supporting the employer’s operational requirements.

The reasonable accommodation analysis can be complex, especially as remote work continues to evolve in the post-pandemic workplace. When in doubt, employers should consult an employment attorney experienced in ADA compliance and accommodation issues to ensure they navigate these requests appropriately and lawfully.

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So, What Exactly Is FMLA Interference? An Important Refresher

Most employers today know what the Family and Medical Leave Act (“FMLA”) requires, i.e., job-protected leave for employees working for employers with 50 or more employees. But most employers know very little about what the law prohibits, namely both interference with and protection against retaliation when an employee exercises FMLA rights. As part of my practice, I have had several clients recently pose a very interesting question about possible FMLA interference. This question is: when an employee is out on FMLA leave, can the employer require an employee to periodically check in to update the employer on their medical status, or does having that sort of interaction with the employee constitute wrongful FMLA interference? The answer to this question, like many in this area of the law, requires an employer to proceed with some caution, and it seems like a good time for a refresher on what is, and is not, permitted.

Legally, an employee on FMLA leave is neither entitled to be “left alone,” nor is completely relieved from responding to an employer’s discrete inquiries. Fielding occasional calls about one’s job while on leave is deemed a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights. When limited to the scope of passing on institutional knowledge to new staff, or providing closure on completed assignments, or even giving a quick update on the employee’s on-going medical status, employers do not violate the FMLA by making such calls or expecting employees to keep them updated on such topics. Moreover, if the employer has designated call in procedures or policies that an employee must follow while on FMLA, the employee is expected to follow them if they do not conflict with the leave rights granted under the FMLA. A big legal prohibition however is assigning any work to or expecting that the employee will perform any job services while on leave. That is a sure invitation for an interference claim.

While contacts with an employee are allowed while on FMLA, the real legal difficulty is that there is no legal standard or consensus on the amount of potential contacts an employer can have with an employee while out on FMLA leave. The cases talk about “de minimus” contacts not interfering with FMLA use without stating how many of those kinds of contacts can happen. So, what exactly is a sufficiently small enough number to not get the employer into trouble? Over 12 weeks of leave, once a month would seem fine, especially if the employer has a valid reason for the contact, such as a quick question about a work file or confirming an expected return to work date. More than that would likely depend on the presenting circumstances for the required contact. In this area, when all is said and done, seemingly less is better—the fewer times you need to speak to your employee, the better.

Therefore, based upon the foregoing, employers who need to reach out to an employee on FMLA leave are best served by doing so only sparingly and only when the contact is supported by a legitimate business reason. And, most importantly, do not demand that an employee perform any sort of work during their FMLA time. Even when the employee volunteers to do so, it is best for the employer to say no to ensure that there is no chance of any misunderstanding by the employee that working on FMLA leave is an expectation of the employer. So now you know what FMLA interference is and how to best avoid it.

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BEWARE OF RETALIATION

I have written about this topic before but thought it is worthwhile to address the issue again because I am seeing a disturbing uptick in these types of claims: Retaliation.

Too often, when a claim is filed by an employee, an employer becomes angry and wants to fight back and get revenge against the employee for asserting the legal claim. The temptation is real for many employers. They feel betrayed that an employee would accuse them of violating the law. It can get especially personal when an employee accuses an employer of engaging in wrongful discrimination. No one wants to be called a bigot or find themselves on the wrong end of any legal case. But an employer must fight the urge to engage in retaliatory action against an employee for exercising protected legal rights. Mounting a strong legal defense to a filed claim should always be the goal when faced with a legal claim. Retaliation of any kind should not be part of that strategy!

Just about all of the major federal and state anti-discrimination laws protect employees against retaliation in exercising rights vested under these laws. Whistleblower laws likewise provide protection against retaliation. So ironically do many employer policies themselves. Yet, employer retaliation happens. And when it does, it will often provide an employee with an even stronger legal claim than the one that was originally being pursued, which only makes it harder to mount a successful legal defense. 

When I think of retaliation claims, I am reminded of what William Shakespeare once wrote in his play “Othello” about jealousy being “a green-eyed monster.” In the realm of labor and employment law, one can fittingly say the same thing about retaliation and its own resemblance to that same famous literary creature. Employers must fight the urge to succumb to the “green-eyed monster” of retaliation. Just as jealousy wreaks havoc in Othello’s life in the famous Shakespeare play, so can retaliation for an employer in its efforts to remain compliant with labor and employment laws.

Along with fighting that retaliation urge, employers should always ground their workplace decisions in legitimate (and well-documented) non-retaliatory reasons for any actions that you take against an employee. That way, you will always give yourself a strong viable defense to such allegations. Increasingly, I am seeing sophisticated employees when they know their employment time is short go on the aggressive and claim that the employer is doing something illegal in the hope that it will cause the employer to delay any adverse employment action against the employee. In those situations, it is more critical than ever that employers have a well-documented history of the employee’s performance problems to counter any contention that the action is occurring for a retaliatory reason.  

The temporary taste of vengeance is fleeting, just ask Othello. Fight that temptation at all costs so you too do not become just another tragic figure like Othello! In the end, retaliation claims can ultimately cost your company a lot of money, so always make good employment decisions rooted in legitimate business reasons.              

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