FEELING MARGINALIZED? RECENTLY TRANSFERRED? DEFLATED OR INFLATED RESPONSIBILITIES? AND/OR GIVEN A RETALIATORY PIP? THIS ARTICLE IS FOR YOU: EMPLOYMENT ATTORNEY ADVICE.
When Is It Time To Hire An Employment Attorney
Sometimes shifts occur in the employment dynamic giving rise to a sense that things may not be going well for you. If you are “lucky,” you will pick up on the changing dynamic before it is “too late.” Whether it be a new manager, hellbent on shuffling the deck or bringing in his/her own loyalists or someone brought in to wield the hatchet and remove you from the company, existential threats may arise in the normal course of employment. In such situations, all is not lost, and it is imperative that you do not bury your head in the sand, believing that the odds are stacked against you and that there is nothing you can do. To the contrary, this is precisely the time when you need to consult the sound advice of an employment attorney. A level head and objectivity are essential when facing such adversity and potential termination. When your livelihood and your career are on the line, it can feel like your life is on the line. It is sometimes impossible not to be emotional, anxious, depressed, fearful and stressed out. It is not unusual to experience episodic insomnia and panic. An employment attorney can guide you through this tough time as your best ally and secret weapon.
Signs That You Could Potentially Be Terminated From Your Job
There are standard “dirty tricks” used to eliminate people from the workplace in retaliation for the assertion of their rights. Marginalization, a transfer, or sideline to an idle or dead-end position or location, setting impossible tasks or benchmarks, lack of support, changing your responsibilities to duties that are beyond your purview, a patently false and negative performance evaluation, and the Retaliatory Performance Improvement Plans (PIPs), are all examples of what employers may do if they are setting the stage to try to fire or terminate your employment.
Deliberate Retaliatory Marginalization
A good example of deliberate retaliatory marginalization can be seen in the case of Kessler v. Westchester County Department of Social Services, 461 F.3d 199 (2d Cir. 2006). There the Court held that a transfer, though technically a lateral move, may constitute a retaliatory adverse employment action in violation of employment statutes. “In order to present a prima facie case of retaliation under Title VII or the ADEA, a plaintiff must adduce evidence sufficient to permit a rational trier of fact to find [1] that he engaged in protected participation or opposition under Title VII [or the ADEA], [2] that the employer was aware of this activity, [3] that the employer took adverse action against the plaintiff, and [4] that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action.”
Work Transfers – Adverse Employment Action?
Courts have made clear that a transfer is an adverse employment action if it results in a “change in responsibilities so significant as to constitute a setback to the plaintiff’s career.” See for eg. de la Cruz v. New York City Human Resources Administration Department of Social Services, 82 F.3d 16, 20 (2d Cir.1996); Galabya v. New York City Board of Education, 202 F.3d 636, 641 (2d Cir.2000) And when an employee is transferred from an “elite” unit to one that is less prestigious, or where the transfer effected a “radical change in nature of the employee’s work,” it may constitute an actionable adverse employment action. See Rodriguez v. Board of Education of Eastchester Union Free School District, 620 F.2d 362, 366 (2d Cir.1980).
Retaliatory PIPs
A retaliatory PIP occurs when an employer uses a PIP not as a genuine tool for performance improvement but as a reaction against an employee’s protected activity, such as filing a discrimination or hostile environment complaint, participating in an investigation, or whistleblowing. Under federal laws like the Civil Rights Act, Americans with Disabilities Act (ADA), and the Fair Labor Standards Act (FLSA), retaliatory actions against employees (including a retaliatory PIP) for engaging in protected activities are prohibited. Keep in mind, that even if you believe the PIP is retaliatory and not objectively based on inadequate performance, refusing to sign the PIP notice may then be interpreted as a failure to cooperate. Another thing to bear in mind is the potential benefits to creating a record of why the PIP benchmarks and guidelines are realistically unachievable or otherwise simply punitive. An employment attorney can guide you through the process and advise you how to properly challenge the PIP and any unfair or inaccurate description of historical performance without giving your employer a further excuse to terminate you.
New York State Law: Protections For Employees Against Retaliation
New York State law provides protections akin to federal laws against retaliation. The New York State Human Rights Law is particularly robust in protecting employees from retaliatory actions. And Vermont’s Fair Employment Practices Act prohibits employment discrimination and retaliation akin to the federal standards.
In sum, when you are facing an existential threat, call to mind the wisdom of Existentialist Philosopher Albert Camus: “The only way to deal with an unfree world is to become so absolutely free that your very existence is an act of rebellion.” In other words, when you are feeling oppressed and treated unfairly, it is not time to throw in the towel and give up. Resist, retain a qualified employment lawyer and fight for your rights.