As we near the end of the year, we are already seeing top 10 and other annual highlights or “what to watch for” lists, including top employment law issues for 2012 and/or 2013. Every list probably will (and should) include the National Labor Relations Board’s (NLRB) attack on social media policies and anything else that could conceivably chill protected activity, the impact that President Obama’s re-election will have on employers, and employers’ efforts to deal with rapidly changing technology.
Many of those lists will not include retaliation claims. Retaliation may no longer be “news,” but look at any regular compilation of employment law decisions and developments and perhaps no topic is more prevalent in court decisions. A trio of federal district court decisions from a two-day period at the end of November underscore the continuing importance for employers to be vigilant against these claims. Employers need to continue to maintain the highest awareness of these potential claims and how to minimize the risk from them.
Like Lard, Carroll is only a motion to dismiss. But it does raise the question, once an employee is in the protected class of “employees who have exercised their legal rights and therefore may have a retaliation claim,” when, if ever, is the employee no longer in that protected class?
Perhaps of some comfort to employers is the Western District of Virginia’s decision the same day in Crews v. Ennis, Inc., in which the court held that James Crews did not have a retaliation claim for complaining to the employer about certain vulgar remarks. Crews was terminated for inciting other employees to file complaints against the company. The court found that Crews did not have a Title VII retaliation claim because the conduct complained of was not actionable under Title VII.