Retaliation is one of the fastest-growing categories of employment litigation. Hospitals can be charged with allegations of retaliation or discrimination by employees who have blown the whistle on false claims activity or complained of other improper conduct. If a hospital faces a retaliation lawsuit, proving the legitimacy or non-discriminatory intent behind its actions can prove costly in terms of time and money.
Background
There has been a rise in the filing of retaliation lawsuits, which likely can be linked to the weak economy. Individuals facing unemployment or struggling financially may consider retaliation suits as one avenue for financial gain. Moreover, individuals who have suffered an adverse employment action, especially in a down economy, may be looking for vindication.
These lawsuits can be very fact-intensive, which leads to a fair amount of discovery and expense for the defendant. While retaliation lawsuits tend to be far less costly than a false claims case, they can still prove burdensome in terms of expense. Moreover, in a retaliation case there are challenges in obtaining a dismissal or judgment through motion practice because of the factual questions that are typically involved.
Basic elements
There are three basic elements to a retaliation lawsuit: The employee engages in a legally protected activity, the employee suffers an adverse employment action and there is a causal link between the two.
When an employee brings a retaliation claim, if the employee meets its burden of establishing a prima facie case, the employer must prove non-discriminatory and non-retaliatory intent for the "adverse action." If the employer is able to document and articulate a legitimate reason for its action, the burden of proof then returns to the plaintiff employee who must then prove the defense's legitimate reason is really pretext for a discriminatory or retaliatory motive.
The terms "protected activity" and "adverse action" both encompass a range of actions. "One of the reasons retaliation lawsuits can be factually intense is because what constitutes a 'protected activity' or an 'adverse action' is broad," says David Pivnick, JD, a litigation attorney in the healthcare practice at McGuireWoods LLP in Chicago.
Protected activities can be either oppositional or participational. Oppositional activities occur when employees file complaints with an agency or supervisor about improper conduct, such as submitting false claims or discrimination. Participational activities occur when the employee is asked to provide information or testimony in an investigation or legal proceeding related to alleged illegal conduct.
The most common adverse action is termination, but a demotion, change in hours, pay reduction, change in benefits, denial of a promotion or reassignment to different duties may also be deemed adverse. "Many actions could be considered to be adverse, meaning that you have to be careful in how you handle employees and make employment decisions for appropriate, business reasons," says Mr. Pivnick.
Finally, the employee must prove the adverse action was caused by his/her having engaged in the protected activity. Proximity in time between the protected activity and adverse action is one factor influencing this, but is generally insufficient without more. Other factors include any direct statements or evidence that demonstrate a retaliatory intent, the employee's employment record, and whether the adverse action in question is consistent with the hospital's previous actions.
Best practices
• Act appropriately. While it may sound overly simplistic, the best way to avoid retaliation suits is to simply act appropriately. Do not take any discriminatory or retaliatory measures against employees. Nonetheless, even employers that are acting appropriately may still face retaliation suits from disgruntled employees seeking money or revenge. "Even if there wasn't a retaliatory motive behind an employment action, it does not mean that an employee can't bring a claim against you,” says Mr. Pivnick. “However, avoiding discriminatory or retaliatory conduct and having appropriate policies in place can reduce the risk of being named in a retaliation lawsuit and is beneficial in defending such a lawsuit if it arises."
• Know the law and establish appropriate policies. Hospitals need to know state and federal laws regarding retaliation in order to take proactive steps to prevent retaliation lawsuits. Along with understanding the legal framework, hospitals should establish anti-retaliation polices on the employment front and the regulatory front. "Every hospital should have an anti-retaliation policy," says Mr. Pivnick. "The policy should outline internal processes so employees know who to approach with complaints if they are being discriminated against or have concerns regarding any improper conduct. The policy should encourage employees to raise such concerns, set forth the internal process for doing so, and expressly forbid any retaliatory conduct from taking place against an employee or other individual who raises such concerns." The anti-retaliation policy should be a zero-tolerance policy.
• Carefully document adverse employment actions. "It is incredibly important to ensure that employment actions are well-documented," says Mr. Pivnick, who notes that employers sometimes provide only partial documentation. "If you're terminating an employee, there really is not a valid reason to not have that action well-documented," says Mr. Pivnick. Carefully documenting employment actions can help prove that an adverse action was justified and consistent with hospital policies and past decisions. Employers should also define which offenses will result in terminations and which will result in warnings and articulate these categories to employees.
Learn more about McGuireWoods LLP.
Related Articles on Legal Issues and Hospitals:
3 Core Concepts for Hospital and Healthcare False Claims Cases
9 Key Legal Developments Facing Hospitals
13 Legal Issues for Hospitals and Health Systems
Background
There has been a rise in the filing of retaliation lawsuits, which likely can be linked to the weak economy. Individuals facing unemployment or struggling financially may consider retaliation suits as one avenue for financial gain. Moreover, individuals who have suffered an adverse employment action, especially in a down economy, may be looking for vindication.
These lawsuits can be very fact-intensive, which leads to a fair amount of discovery and expense for the defendant. While retaliation lawsuits tend to be far less costly than a false claims case, they can still prove burdensome in terms of expense. Moreover, in a retaliation case there are challenges in obtaining a dismissal or judgment through motion practice because of the factual questions that are typically involved.
Basic elements
There are three basic elements to a retaliation lawsuit: The employee engages in a legally protected activity, the employee suffers an adverse employment action and there is a causal link between the two.
When an employee brings a retaliation claim, if the employee meets its burden of establishing a prima facie case, the employer must prove non-discriminatory and non-retaliatory intent for the "adverse action." If the employer is able to document and articulate a legitimate reason for its action, the burden of proof then returns to the plaintiff employee who must then prove the defense's legitimate reason is really pretext for a discriminatory or retaliatory motive.
The terms "protected activity" and "adverse action" both encompass a range of actions. "One of the reasons retaliation lawsuits can be factually intense is because what constitutes a 'protected activity' or an 'adverse action' is broad," says David Pivnick, JD, a litigation attorney in the healthcare practice at McGuireWoods LLP in Chicago.
Protected activities can be either oppositional or participational. Oppositional activities occur when employees file complaints with an agency or supervisor about improper conduct, such as submitting false claims or discrimination. Participational activities occur when the employee is asked to provide information or testimony in an investigation or legal proceeding related to alleged illegal conduct.
The most common adverse action is termination, but a demotion, change in hours, pay reduction, change in benefits, denial of a promotion or reassignment to different duties may also be deemed adverse. "Many actions could be considered to be adverse, meaning that you have to be careful in how you handle employees and make employment decisions for appropriate, business reasons," says Mr. Pivnick.
Finally, the employee must prove the adverse action was caused by his/her having engaged in the protected activity. Proximity in time between the protected activity and adverse action is one factor influencing this, but is generally insufficient without more. Other factors include any direct statements or evidence that demonstrate a retaliatory intent, the employee's employment record, and whether the adverse action in question is consistent with the hospital's previous actions.
Best practices
• Act appropriately. While it may sound overly simplistic, the best way to avoid retaliation suits is to simply act appropriately. Do not take any discriminatory or retaliatory measures against employees. Nonetheless, even employers that are acting appropriately may still face retaliation suits from disgruntled employees seeking money or revenge. "Even if there wasn't a retaliatory motive behind an employment action, it does not mean that an employee can't bring a claim against you,” says Mr. Pivnick. “However, avoiding discriminatory or retaliatory conduct and having appropriate policies in place can reduce the risk of being named in a retaliation lawsuit and is beneficial in defending such a lawsuit if it arises."
• Know the law and establish appropriate policies. Hospitals need to know state and federal laws regarding retaliation in order to take proactive steps to prevent retaliation lawsuits. Along with understanding the legal framework, hospitals should establish anti-retaliation polices on the employment front and the regulatory front. "Every hospital should have an anti-retaliation policy," says Mr. Pivnick. "The policy should outline internal processes so employees know who to approach with complaints if they are being discriminated against or have concerns regarding any improper conduct. The policy should encourage employees to raise such concerns, set forth the internal process for doing so, and expressly forbid any retaliatory conduct from taking place against an employee or other individual who raises such concerns." The anti-retaliation policy should be a zero-tolerance policy.
• Carefully document adverse employment actions. "It is incredibly important to ensure that employment actions are well-documented," says Mr. Pivnick, who notes that employers sometimes provide only partial documentation. "If you're terminating an employee, there really is not a valid reason to not have that action well-documented," says Mr. Pivnick. Carefully documenting employment actions can help prove that an adverse action was justified and consistent with hospital policies and past decisions. Employers should also define which offenses will result in terminations and which will result in warnings and articulate these categories to employees.
Learn more about McGuireWoods LLP.
Related Articles on Legal Issues and Hospitals:
3 Core Concepts for Hospital and Healthcare False Claims Cases
9 Key Legal Developments Facing Hospitals
13 Legal Issues for Hospitals and Health Systems