Jeffrey (Jeff) H. Ruzal, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in Law360 Employment Authority, in “5 Things to Know About Retaliation in Employment Law,” by Jon Steingart. (Read the full version – subscription required.)
Following is an excerpt:
Bans on retaliating against workers are an area of employment laws that employers need to mind with careful planning on par with the attention they devote to compliance with minimum wage and overtime, discrimination and other requirements, employment attorneys told Law360. …
It Protects A Lot Of Activity
Jeff Ruzal, a member of management-side firm Epstein Becker Green and former trial attorney at the U.S. Department of Labor, told Law360 retaliation is illegal in response to an employee filing a complaint, but it can also occur against someone who cooperates with a government agency probe of their employer. The genesis of the investigation — such as a complaint from a whistleblower or a routine audit — is irrelevant, he said.
"It is not unusual for a business to send an email letting folks know DOL is conducting an investigation," he said.
"They may want to speak with you," he said, imagining an employer's note. "It's your choice to speak with them."
A company may use the message as an opportunity to disavow retaliation, which would be useful for mounting a defense later if anybody alleges it chilled their participation in the investigation, he added.
"Some businesses might go as far as to explicitly say you will not be retaliated against," he said. "If it has said that, I could see there being not as strong a claim for retaliation."
The key is for an employer to communicate in ways that encourage compliance and avoid coming anywhere close to sounding like deterrence, he said.
"Businesses have to be very sensitive to what they say and don't say," he said.
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