Organizers tell The Nation that four food court outlets in a federal building initially refused to let employees return to work following a Tuesday strike, but relented following protests by supporters.

The four establishments—Subway, Bassett’s Original Turkey, Quick Pita and Kabuki Sushi—are located in the Ronald Reagan federal building, one of several Washington, DC, workplaces where employees with taxpayer-supported jobs went on strike as part of the Good Jobs Nation campaign, whose backers include the Service Employees International Union. As The Nation reported Tuesday, the strikers are demanding that President Obama take executive action to improve labor standards for workers who are employed by private companies to do jobs backed by public spending. According to organizers, the one-day strike involved hundreds of workers, and forced about half of the Reagan Building’s food court outlets to shut down at some point during the day. (The Reagan Building is owned by the federal government; many of its food outlets are franchisees of restaurant or fast food chains.)

Bassett’s employee Suyapa Moreno told The Nation in Spanish that three of her outlet’s four staff went on strike Tuesday, and that when they showed up to start their shift on Wednesday, “The owner told my co-worker she was fired. So I said, ‘If you’re going to fire her, I’m not coming back to work.’” She said her manager told them that “she didn’t want to see us again.” Moreno said she believes her co-worker was targeted because management saw her as the ringleader who convinced Moreno and a third Bassett’s worker to strike.

Moreno said the workers then waited at the food court until other workers, organizers and community supporters gathered to protest the terminations. According to the Good Jobs Nation campaign, about a hundred total supporters converged in the food court to protest ten total terminations by four outlets. Once there was a big enough group, said Moreno, “We went back to talk to the owner, and she accepted us back.” The Good Jobs Nation campaign told The Nation that managers or owners from Subway, Quick Pita and Kabuki Sushi also agreed to reverse the terminations once confronted by crowds of supporters.

The federal Office of Management and Budget did not respond to a request for comment Thursday afternoon regarding the allegations, or to The Nation’s prior inquiries this week regarding the Good Jobs Nation campaign. An employee who answered the phone at the Reagan Building Bassett’s Original Turkey location early Thursday evening said that no manager was on the property to comment. A call to the building’s Kabuki Sushi location went unanswered. The person who answered the phone at the building’s Subway location said he was too busy to comment; the Subway corporation did not immediately respond to an inquiry.

Reached on the Reagan Building Quick Pita location’s phone line, a person who identified himself as a manager there said that no strikers had been denied the chance to return to work, and charged that the campaign was making workers “victims for a bigger political agenda.” He declined to give his name, and said that he was not authorized to speak for the Quick Pita company or the franchisee’s owner.

The attempted terminations alleged by Good Jobs Nation could be violations of federal labor law. As I’ve noted previously, the law generally prohibits “firing” workers for striking, but often allows “permanently replacing” strikers by filling their positions during the strike and refusing to reinstate them. But strikes that the government finds to be motivated in part by prior labor law violations, as Good Jobs Nation says Tuesday’s was, receive greater legal protection; and striking for only one day may also provide a shield against “permanent replacement.”

However, labor advocates and activists have long charged that the National Labor Relations Board’s slow process and weak penalties do little to discourage companies from firing activists. In order to deter retaliation, organizers of recent fast food strikes have arranged for delegations of supporters, sometimes including local politicians and clergy, to accompany the strikers back to work the next day. As I reported for Salon in November, activists say that an indoor occupation and outdoor picket of a Wendy’s store led management to reverse the termination of one of the participants in New York’s first fast food strike. Organizers say the same approach worked yesterday in Washington.

“Before, when workers were treated badly or fired unjustly, nothing would happen,” said Moreno. “And so the bosses felt like they could keep doing it.” Following the strike and yesterday’s showdown, she said, “Now they treat us with a little more respect, because they’re afraid that if they keep doing what they’re doing, more of this will happen.”

This article was originally printed on The Nation on May 23, 2013.  Reprinted with permission.

About the Author: Josh Eidelson is a Nation contributor and was a union organizer for five years. He covers labor for as a contributing writer at Salon and In These Times.

If you don’t already know, the Affordable Care Act (“ACA”), a/k/a Obama Care, does not take effect all at once. (I say “if you don’t already know,” because a recent poll shows that 42% of Americans are unaware that Obama Care is currently the law of the land).

Title I of the Act, which is considered one of the most controversial parts of the Act, does not take effect until next year. Once it takes effect, employers may not make employment decisions based on an employee’s health care decisions. Employers will, of course, make decisions that impact employees negatively, because the ACA will increase employers’ costs and responsibilities associated with health care. This is why employees need to be aware of their new rights.

You have probably heard about the many employers who have started cutting employee hours to evade having to comply with Obama Care. If you’re one of them, you’re out of luck. The law doesn’t protect you yet.

Starting on January 1, 2014, an employer may not retaliate against you based upon your health care selections. Specifically, an employer cannot terminate, demote, discipline, intimidate, threaten, deny benefits or promotion, reduce pay or hours, blacklist, or fail to hire an employee based on the fact that the employee:

• Provided information relating to any violation of Title I of the ACA, or any act that he or she reasonably believed to be a violation of Title I of the ACA to the employer, the Federal Government, or the attorney general of a state;
• Testified, assisted, or participated in a proceeding concerning a violation of Title I of the ACA, or is about to do so;
• Objected to or refused to participate in any activity that he or she reasonably believed to be in violation of Title I of the ACA; or
• Received a credit under section 36B of the Internal Revenue Code of 1986 or a cost sharing reduction under section 1402 of the ACA.

If an employer retaliates against you for engaging in any of these activities after January 1, 2014, you may file a complaint with the Occupational Health and Safety Administration(“OSHA”). OSHA has a broad range of powers to help employees combat the “evildoer” employers, including the powers of investigation, enforcement, negotiation, settlement, and the ability to award damages. The employee’s first, and critical step, is to file a claim with OSHA within 180 days from the date of retaliation.

Unlike most employment discrimination cases, the standard for proving retaliation in these cases is much more employee-friendly. You only need to demonstrate you had a reasonable belief that the employer was retaliating against you. Further, you will only need to provide evidence that your health care decision was a factor in the retaliation, not the only factor in retaliation. Hopefully, employers will have a much more difficult time defending against these types of discrimination cases. With any luck, this will deter them from violating the ACA in the first place.

This article was originally printed on Screw You Guys, I’m Going Home on May 10, 2013.  Reprinted with permission.

About the Author: Ryan Price is an Associate Attorney at Donna M. Ballman, P.A., Employment Advocacy Attorneys.

Walmart staves off unionization attempts in its stores by telling workers who ask about forming a union that they may lose benefits and vacation time, a potential violation of American labor law that could further inflame relations between the company and workers who picketed its stores on Black Friday and have been attempting to organize.

Walmart workers and labor advocates held protests outside the chain’s stores throughout Thanksgiving weekend, protesting the low wages it pays its workers. The company, which paid its chief executive $18.1 million and made $15 billion in profits last year, has fought off union attempts before, and now it tells its workers that unionization could lead to the loss of bonuses and vacation time, a spokesperson told Bloomberg BusinessWeek:

Walmart has been opposed to unions since Sam Walton opened his first store in Rogers, Ark., in 1962. These days, “we have human resources teams all over the country who are available to talk to associates, and we will get questions about joining a union,” says David Tovar, a spokesman for the company. “We would say: ‘Let us remind you of all that Walmart offers, and of what might go away. Quarterly bonuses might go away, vacation time might go away.’?”

Such tactics may not be illegal by themselves because they can be seen as predicting outcomes rather than threatening them, The Nation’s Josh Eidelson reported today. But the implication of such a “prediction” — that joining a union could be followed by actions resembling retaliation — is quite clear. Walmart’s anti-labor practices aren’t new: in 2008, the store’s workers spoke out about anti-union meetings they were forced to attend.

Though Walmart has long fought organization efforts in the United States, it sometimes letsworkers in other countries unionize — particularly when unionization is contingent on Walmart getting to enter a new country. In the U.S. though, it has responded to unionization efforts byshutting down departments, fighting legislative improvements to labor law, and now, telling workers that joining a union may cost them their bonus.

This post was originally posted on December 17, 2012 on ThinkProgress. Reprinted with Permission.

About the Author: Travis Waldron is a reporter/blogger for ThinkProgress.org at the Center for American Progress Action Fund. Travis grew up in Louisville, Kentucky, and holds a BA in journalism and political science from the University of Kentucky. Before coming to ThinkProgress, he worked as a press aide at the Health Information Center and as a staffer on Kentucky Attorney General Jack Conway’s 2010 Senate campaign. He also interned at National Journal’s Hotline and was a sports writer and political columnist at the Kentucky Kernel, the University of Kentucky’s daily student newspaper.

Where I work, we get donuts on payday Friday. At one law office in Florida, workers go to happy hour after work. They all wear the same color shirt so they look like a group when they go out for happy hour.

A lot of places get crowded for happy hour on Friday nights, so it makes sense to me that they would wear a visible color so group members could find each other. On one recent Friday,

14 workers wearing orange shirts were called into a conference room, where an executive said he understood there was a protest involving orange, the employees were wearing orange, and they all were fired.

The executive said anyone wearing orange for an innocent reason should speak up. One employee immediately denied involvement with a protest and explained the happy-hour color.

The executives conferred outside the room, returned and upheld the decision: all fired, said Lou Erik Ambert, 31, of Coconut Creek, a litigation para-legal who said he was terminated.

Fourteen people fired because an executive was paranoid about some type of worker protest that wasn’t even happening. And people say we don’t need unions today because the “job creators” don’t do things like this? Seriously?

This is perfectly legal too as Florida, like most states, is an at-will state. With few exceptions at-will means the employer is free to discharge individuals for good cause, or bad cause, or no cause at all and the employee is equally free to quit, strike or otherwise cease work.

Some of the employees who were fired for wearing the same color shirt spoke to a local newspaper. “There is no office policy against wearing orange shirts. We had no warning. We got no severance, no package, no nothing, I feel so violated,” according to one. Another said “I’m a single mom with four kids, and I’m out of a job just because I wore orange today.” One wants us to know they weren’t protesting: “To my mind, protesting is where you put your foot down, and you’re not working. There was none of that today.” But that doesn’t matter—all that matters is that their boss thought they might be protesting.

Fired for wearing orange without warning and because of the paranoid delusions of a “job creator.” His assumption that his employees were protesting management just cost 14 people their livelihoods. This is so wrong on so many levels and is just one more reason why unions are necessary.

This blog originally appeared in Daily Kos Labor on March 21, 2012. Reprinted with permission.

About the Author: Mark Anderson, a Daily Kos Labor contributor, describes himself as a 44 year-old veteran, lifelong Progressive Democrat, Rabid Packer fan, Single Dad, Part-time Grad Student, and Full-time IS worker. You can learn more about him on his Facebook, “Kodiak54 (Mark Andersen)”

Ten years ago, I had a mental-health crisis  so serious that I had to resign my job as Senior Editor at a magazine and give up my apartment and move from the East Coast back home to the Midwest to live with my parents.

Once I was stabilized, my dad said, “I think it’s time for you to go get a little job.” I randomly pulled into a big retail chain’s parking lot. I took home an application, filled it out, got an interview. And, amazingly, even though I was pretty obviously a waste case, the store hired me. (I later saw my personnel file, and was surprised and touched to see the note the interviewer had written atop my application: “I like Scott.”)

I guess I was lucky? But also resentful. It dusted what crumbs were left of my ego into the garbage can to start my new little job, in the neighborhood where I had grown up, behind a cash register. From salaried magazine editor to mental patient to hourly cashier in six months. A little humbling.

And so it went for two long years. Slowly I rebuilt myself while working this little job.  A routine was good for me. Normality crept back in. I even got promoted from Cashier to Shelver. Weekly, they posted corporate jobs in the employee backroom of every store in the chain. One day the job “Copy Editor” came through, and I was excited because it would have been a perfect job for me under any circumstances, but especially in the reduced place I was in now. I applied, and got good recommendations from two managers. They interviewed me at the company headquarters in a nearby city, and they liked me.

One day I was paged at the store and handed a phone. I got the job! Soon I would be back on track, with the title of Editor again, making real money again, enough to live on independently instead of living in a spare room at my family’s house! I signed the agreement letter for my new promotion and was just so grateful that life had given me another chance at adulthood. I told everyone elatedly what happened.

Then 10 days later, on what was supposed to be one of my last days in the store, I was called to the manager’s office. An HR woman from the corporate office was on the phone. She was afraid she had some bad news. It had come to her attention that I was on Final Warning for chronic lateness at the time I had applied for the job as Copy Editor, and that was against the ground rules for applying for promotions, so she was going to have to rescind the offer.

The shock turned all my nerve endings off. Later I understood what happened, and saw that the question to be answered was: Whose “fault” is it that corporate HR belatedly (too-latedly) discovered my problem with punching the time clock on time? I was always just five or 10 minutes late, but no matter: The letter of the law ruled, not the spirit.

I had to fight, and I did it with animalistic concentration. I went to see my friend, a corporate lawyer specializing in employment issues. He shaped my story into a 5-page letter infused generously with “red siren words” that HR people would understand.

Words like “rescission of an offer constituting breach of contract amounting to constructive termination,” and “malicious intent to damage my career.” But the biggest siren was: “retaliatory denial of a promotion I earned in reaction to a harassment claim I had previously raised.” I had filed a report when a manager around my age slapped me way too hard on the back one day, because he didn’t like something I had said to his girlfriend, who also worked at the store (in violation of company policy against romantic entanglements between coworkers, by the way). Maybe, dear letter reader, there was a relationship between my tardiness and the tense work environment… Also, I listed two other job opportunities I had ceased pursuing during the 10 days I believed I had the Copy Editor job. We implied there would be damages to pay.

We revised the letter many times, and I brought all of my editor’s skills to bear, because I was writing for my life this time. Failure to make them give me the job was not an option. I remember driving in my car with a friend around this time and raging about the wrongful job offer rescission so ferociously that he told me he was scared and wanted me to pull over.

We closed the letter with: I request that Human Resources reinstate me as Copy Editor this week for the reasons that I have given, without delay and before it becomes necessary to involve other parties. I ask further that this reinstatement or any other responses to this letter be provided to me before close of business on Thursday, March 21. I remain as enthusiastic as ever about excelling in the Copy Editor position.

Meanwhile, that week, I was once again working on the store floor, despondent like someone who had gotten out of jail briefly only to be sent right back, when again I was summoned upstairs. It was about 4 p.m. on that Thursday. My manager handed me the phone for the third time in three weeks.

The HR woman said she was pleased to inform me that they had decided to make an exception to their rule in my case. “Thank you,” I whispered and hung up. That third phone call was the moment I knew I had the resources inside me to save my own life.

A few days after the call I started work at the chain’s corporate office. They put me on six months’ probation during which I had to be at work every day by 8:30 a.m., and I was. I spent almost four years at that Copy Editor job, and I believe I did the people proud who helped me and stood up with me against human resources rules capriciously applied. The company did the right thing in the end. And we both benefited for it.

About The Author: SM Shrake is a true-story writer and performer known as “the hardest-working man in the story business.” He has has been a published writer since 1997, and has blogged occasionally for The Huffington Post since 2007. His “work-work” resume is pretty sketchy between 2000 and 2003, which is when the story he tells here happened. Visit You Wanna Know What? for more of Shrake’s true stories and updates about his performances.

Texas Doctor To Collect Over 10 Million On Defamation/Breach of Contract Case

The Supreme Court of Texas cleared the way for Dr. Neal Fisher, a Dallas physician, to collect his 9.8 million dollar verdict against Pinnacle Anesthesia Consultants – an anesthesia group of which he was a shareholder and founding member.

Fisher sued Pinnacle for defamation and breach of contract when Pinnacle falsely accused him of alcohol and drug abuse after he raised concerns about an increasing volume of patient complaints and questionable billing practices. In 2007, a Dallas jury unanimously rendered a verdict in his favor. Last year the court of appeals upheld the verdict.

This month, the Supreme Court of Texas issued an order declining to hear the case which means that the verdict stands. With pre and post judgment interest, it is reported that Pinnacle will have to pay Dr. Fisher somewhere in the vicinity of $10.8 million dollars. Fisher has been recognized as one of the top five anesthesiologists in the state of Texas. For more about the case, read here.

EEOC Issues GINA Regulations

The Equal Employment Opportunity Commission issued final regulations this month for purposes of implementation of the Genetic Information Non Discrimination Act of 2008 (GINA). Under GINA, it is illegal to discriminate against employees or applicants for employment because of genetic information. According to the Equal Employment Opportunity Commission:

GINA was enacted, in large part, in recognition of developments in the field of genetics, the decoding of the human genome, and advances in the field of genomic medicine. Genetic tests now exist that can inform individuals whether they may be at risk for developing a specific disease or disorder. But just as the number of genetic tests increase, so do the concerns of the general public about whether they may be at risk of losing access to health coverage or employment if insurers or employers have their genetic information.

Congress enacted GINA to address these concerns….

The final GINA rules published by the EEOC on November 9, 2010 prohibits the use of genetic information or family medical history in any aspect of employment, restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits employers from disclosing genetic information. Family medical history is covered under the Act since it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. The Act also prohibits harassment or retaliation because of an individual’s genetic information. For more about  the new rules and how to lawfully comply with them read here.

Firing for Facebook Posts About Work May Be Illegal

A Connecticut woman who was fired after posting disparaging remarks about her boss on Facebook has prompted the National Labor Board to prosecute a complaint against her employer – and this is big news. As noted by Steven Greenhouse in the NY Times:

This is the first case in which the labor board has stepped in to argue that workers’ criticism of their bosses or companies on a social networking site are generally protected activity  and that employers would be violating the law by punishing workers for such statements.

Dawnmarie Souza, an emergency medical technician was fired late last year after she criticized her boss on her personal Facebook page. The Harford, Connecticut office of the NLRB announced on October 27^th that it plans to prosecute a complaint against her employer, American Medical Response of Connecticut as a result of its investigation.

The NLRB determined that the Facebook postings constituted “protected concerted activity” and that the employer’s internet policy was overly restrictive to the extent that it precluded employees from making disparaging remarks when discussing the company or its supervisors.

It is not unusual for companies to have comparable policies in place as they attempt to deal with  lawful restriction of social networking by their workforce and that’s why this news made a huge impact in the employment law world this month.

Section 7 of the National Labor Relations Act (NLRA) restricts employers’ attempts to interfere with employees’ efforts to work together to improve the terms or conditions of their workplace. The NLRB has long held that Section 7 was violated if an employer’s conduct would “reasonably tend to chill employees” in exercising their NLRB rights and that’s what prompted the complaint.

You can bet that both employers and employees will be keeping a careful watch for the decision  which is expected some time after the hearing before  an administrative law judge currently scheduled for January 15, 2011. For more about it, read here.

Supreme Court Hears Case Claiming Unconstitutional Gender Bias In Citizenship Law

The Supreme Court heard arguments in Flores-Villar v. U.S. this month, a case which challenges the constitutionality of a law that makes it easier for a child of unwanted parents to obtain citizenship if the mother is a U.S. citizen rather than the father.

Ruben Flores-Villar was born in Mexico but grew up in California. He was convicted of importing marijuana, was deported, and illegally reentered the country. In 2006, immigration authorities brought criminal charges against him. At that time, Flores-Villar sought citizenship, claiming his father was a U.S. citizen. The request was denied by immigration authorities because of  a law requiring that a citizen father live in the United States for at least five years before a child is born in order for the child to obtain citizenship. Mothers need only to have lived in the county for one year for the child to obtain citizenship.

Flores-Villar claimed a violation of the equal protection clause of the Fifth Amendment claiming that the Act discriminated on the basis of gender. The Ninth Circuit Court of Appeals found against him and held that the law’s disparate treatment of fathers was not unconstitutional. The last time the Court considered the issue of gender differences in citizenship qualification was the case of Nguyen v. INS in which the Court upheld a law creating a gender differential for determining parentage for purposes of citizenship. Flores-Villar’s attorney argued that Nguyen was distinguishable because it was based on biological differences whereas this case was based on antiquated notions of gender roles.

There is no doubt that this will be an interesting and important decision from the Supreme Court. For more about the case, including the Supreme Court filings, read here.

This article was originally posted on Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the leading  employment and civil rights lawyers in the United States. She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

It’s a political week, so here are a few short takes – admittedly- with a political twist::

GOP Social Club Sued For Racial Discrimination

The National Republican Club of Capitol Hill, an exclusive club known to be the place where the DC Republican “backroom deals” get made, is being sued for race discrimination by its former human resource manager. The plaintiff, Kim Crawford,  alleges that she was repeatedly passed over for raises while “less qualified, less deserving male and white counterparts were given” increases.

Crawford also claims she was fired in July after investigating a racial complaint from the club’s acting executive chef. Race discrimination in employment and retaliation are prohibited by Title VII of the Civil Rights Act of 1964. For more about it read here.

Being A Liberal And Hating Sarah Palin May Be Genetic

I must say this story caught my eye – particularly since we have three generations of Sarah Palin bashers in my immediate family. A new study in the Journal of Politics, as reported in Time,  says that there’s a biological explanation why some people favor big government, oppose the death penalty and can’t stand Sarah Palin – and it’s called the liberal gene.

The DRD4-7R gene affecting the neurotransmitter dopamine has already been linked to a personality type driven to seek out new experiences. Researchers from the University of California, San Diego and Harvard University hypothesized that this predisposition might affect political beliefs.

The researches suspect that the D4 novelty seekers would have more exposure to a wider variety of lifestyles, a wider circle of friends and more exposure to broader  views, attitudes and beliefs. Apparently, all of this does have an effect on D4 inidviduals’ political views and the new study bears out their hypothesis  —  those born with the D4 gene are more liberal. It’s all quite interesting. I wonder if we’re going to hear about a conservative gene too?

More Latinos Concerned About Discrimination

Nearly two thirds of Latinos in the United States think that discrimination against Hispanics is a “major problem” according to a new study from the Pew Hispanic Center. There are 47 million Latinos in the US, which make up 15% of the population and constitute the nation’s largest minority group. According to the study:

Asked to state the most important factor leading to discrimination, a plurality of 36% now cite immigration status, up from a minority of 23% who said the same in 2007. Back then, a plurality of respondents-46%-identified language skills as the biggest cause of discrimination against Hispanics.

The Pew study was released days before the mid-term elections in which the Latino vote is expected to play an important role, particularly in the Florida gubernatorial race and Nevada Senate contest between Senate Majority leader Harry Reid and Tea Party Republican Sharon Angle. Anlge has been sharply criticized for ads run in recent weeks which portray Latinos as menacing interlopers. 17% of voters in Nevada are Latinos who are expected to vote in high numbers this Tuesday.

images: ktnv.images.worldnow rlv.zcache.com politicalmuse.com

This article was originally posted on Employee Rights Blog.

About the Author: Ellen Simon is recognized as one of the leading  employment and civil rights lawyers in the United States. She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Turning the Other Cheek: Illegal Retaliation in the Workplace

If someone went to your employer and said you were discriminating against them, wouldn’t you hold a grudge? Wouldn’t you want to get them fired, and if you couldn’t do that, at least make their lives more difficult? Of course you would (and if you honestly wouldn’t even want to, see your parish priest about nomination for sainthood and/or enjoy nirvana). That is why there is more retaliation going on in American workplaces than there is discrimination (and there is plenty of that going on too).

It is illegal under federal law (Title VII § 704) to retaliate against an employee for complaining about workplace discrimination. That applies to everyone from the employee’s supervisor all the way up the food chain to the CEO. But people being what they are, they retaliate anyway. There are many time-honored forms of illegal retaliation, among them firing, demoting, transferring, changing work schedules, cutting bonuses, assigning lame accounts or thorny clients, and general day-to-day hassling.

In the past what was and wasn’t illegal retaliation was unclear, partly because the federal appellate courts disagreed with each other about the definition, and partly because different federal courts within each circuit (i.e. group of states) agreed with each other about how to word the rule against retaliation but disagreed about what it meant. Time was that in many circuits you could get away with retaliation if you did it outside the workplace. That left the door open for prank calls, letting air out of tires, toilet papering, and any other non-work-related harassment that was short of a misdemeanor.

In some circuits, you could transfer an employee to a distant office or put the employee on the graveyard shift, as long as what you did was not a “materially adverse change in the terms and conditions” of employment. In yet other circuits the line you couldn’t cross was the “ultimate employment decision,” meaning you couldn’t fire, cut pay, demote, or take other actions of similar severity, but anything less was okay. Then there were the circuits that said illegal retaliation encompassed anything that was likely to dissuade “a reasonable worker” from complaining about discrimination. Those circuits won when the Supreme Court resolved the whole mess a few years ago in a case called Burlington Northern v. White, which closed the door to retaliation outside the workplace.

In Burlington the employee, Sheila White, filed suit against her employer, Burlington Northern, for discrimination and retaliation. The retaliation she alleged consisted of changing her job responsibilities and suspending her for 37 days without pay, though the company later paid her for those 37 days. The Supreme Court decided that even though the change in her job responsibilities was not a demotion, and even though she ultimately received all of her pay, she had still suffered illegal retaliation. The change in job responsibilities was a change from the relatively clean job of operating a forklift to the much dirtier and more arduous tasks of cleaning up railroad rights of way and carrying heavy loads back and forth. And the 37 days she didn’t receive any pay included Christmas; there was no money for gifts in the White household that year. The Supreme Court said that a reasonable employee could easily look at what Burlington Northern did to White and decide that reporting discrimination to this employer just wasn’t worth it.

So, problem solved – everyone across the country now knows that even actions unrelated to the workplace can constitute retaliation. If only.

The problem with our courts is not judicial activism, but the opposite. I don’t know if it is a question of effort, ability, or just not giving a damn, but somehow courts managed to mess up the Supreme Court’s clear ruling when they tried to apply it in their own cases. One example is Hicks v. Baines, a case in the Second Circuit (which encompasses Connecticut, New York, and Vermont).

The issue that tripped up the Hicks court had to do with what is called the prima facie case, which just means that there is a certain minimum amount of evidence or argument that a plaintiff has to provide just to stay in court. Satisfying that minimum often doesn’t take much, but a plaintiff has to know what exactly to show in order to keep a case alive.

In Burlington Northern the Supreme Court made it crystal clear that you couldn’t sidestep the rule against retaliating by doing your retaliation outside of the workplace. Even if your retaliatory acts had nothing to do with the victim’s employment, they were still illegal as long as they would dissuade a reasonable employee from complaining about discrimination. So what does the Second Circuit in Hicks say that plaintiffs have to show to satisfy the minimal prima facie case and stay in court? An “adverse employment action.”

That’s right. According to the Second Circuit, just to keep the case alive, just to satisfy the bare minimum standard, the plaintiff has to show that the retaliation involved the employer doing something nasty that was work-related. The really jaw-dropping part is that the court laid this out in its written opinion just after a long discussion about Burlington Northern and how the Supreme Court had decided that anti-retaliation protection “extends beyond workplace-related or employment-related retaliatory acts and harm.”

Fortunately for the plaintiffs in Hicks, the retaliatory actions that they alleged were all employment-related, so the Second Circuit’s bizarre mistake did not affect the outcome of their case (for the record, they won part of it and lost part of it).

The important takeaway from Burlington: any retaliation for complaining about workplace discrimination is illegal, whether it is work-related or not, as long as it would dissuade a reasonable employee from complaining about discrimination. The important takeaway from Hicks: it’s not just judges’ political inclinations that you have to watch out for. Take a look at their GPAs too.

This article was originally published on PiperHoffman.com

About The Author: Piper Hofman is a writer and attorney living in Brooklyn with a B.A. magna cum laude from Brown University and a J.D. cum laude from Harvard Law School.  She has professional experience with the laws related to employment, animal rights, poverty, homelessness, and women’s rights.

Here are a few short takes about employment discrimination stories that made the news this past week:

New Evidence Of Gender Pay Gap And Discrimination Against Mothers In Management

Women made little progress in climbing into management positions according to a new report by the Government Accountability Office yesterday.

As of 2007, the last year for which the data was available, women made up only 40% of managers in the United States work force compared to 39% in 2000. In all but 13 industries covered by the report, women had a significantly smaller share of management positions than men when compared to the overall workforce.

In addition, managers who were mothers earned 79 cents of every dollar paid to managers who were fathers.

The report was prepared at the request of Representative Carolyn Maloney, Democrat of New York, and chairwoman of the Joint Economic Committee for a hearing before that committee on Tuesday — where witnesses  talked about the  “shockingly slow rate of progress” for women in corporate management positions and the “motherhood wage penalty.”

Several individuals who testified urged the passage of the Paycheck Fairness Act as a partial remedy to the issues surrounding gender discrimination in the workforce.

For more about the report read the NY Times article here. For a copy of the report from Rep. Maloney’s website and more about the hearing read and watch here.

Employee With Multiple Sclerosis Settles Discrimination Case For $1.2 Million

An ex-employee of the Madison New Jersey Board of Education with multiple sclerosis settled her disability discrimination case for $1,200,000, including attorney fees, as reported yesterday by DailyRecord.com and Lawyers USA. Disability discrimination is prohibited by the Americans with Disabilities Act.

Joan Briel, a former accounts payable secretary, was diagnosed with MS in 2002. She claimed that her employer retaliated against her by inappropriately increasing her workload, repeatedly harassing her and failing to take action on her requests for reasonable accommodation — including her request to work on the first floor instead of the third floor.

Briel also claimed that the stress of the work environment caused her to relapse and that she was fired while she was on medical leave.

The case was heading for a jury trial when the settlement was reached. Ms. Briel will receive $412,000 in the settlement. Her attorneys will receive $877,303 for the work they did on the case. The court also awarded Briel over $43,000 in costs.

Plaintiffs in civil rights cases may recover attorneys’ fees – if they prevail — in addition to their individual award in most cases. These legal provisions are intended to encourage attorneys to represent individuals who are unable to invoke the protection of civil rights laws because they can not afford a lawyer.

Discrimination cases are difficult to litigate and are often complex and protracted. Therefore, it’s not unusual for the attorneys’ fees ( on both sides) to be larger than the award, or greater than the amount in controversy.

This newly reported case is but one example of the potentially high costs to employers when employment discrimination cases are not resolved early.

EEOC Settles Race Discrimination And Retaliation Case For $400,000

The Cleveland office of the EEOC announced a $400,000 settlement of a class action race discrimination and retaliation case against Mineral Met Inc., a division of Chemalloy Company.

Evidence in the case showed that black employees were disciplined for trivial matters – such as having facial hair or using a cell phone — while white employees were not disciplined for the same conduct. When one of the supervisors complained, it resulted in intensified racially discriminatory treatment and retaliation according to the EEOC.

The EEOC also charged that African-American employees were also subjected to other forms of racial harassment, including evidence that a white supervisor placed a hangman’s noose on a piece of machinery. (once again shocking that this is still going on)

Race discrimination in employment and retaliation for complaining about discrimination violate Title VII of the Civil Rights Act of 1964.

This article was originally posted on Employee Rights Blog.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.