Back to the Basics - No retaliation claim if no protected activity

Retaliation claims are among the most numerous types of employee claims processed through the Equal Employment Opportunity Commission and state EEO agencies. Central to these claims are whether an employee engaged in protected activity and how the employer responded to it. A recent Eighth Circuit case involving Nebraska law on retaliation is exemplary. 

In Walker v. First Care Mgmt. Grp., LLC, the United States Court of Appeals for the Eighth Circuit held that employees’ conduct in response to a facility resident’s abuse upon another facility resident did not constitute protected conduct to support a retaliation claim under Nebraska law.  27 F.4th 600 (8th Cir. 2022). 

Two caregivers employed by a retirement community witnessed a resident sexually assaulting other residents several times.  Per company policy, employees had to report resident abuse immediately, by reporting any incident to a supervisor, completing an incident report, and making a note in the resident’s chart.  The two employees claimed they reported observing the abuse, but on at least one occasion, they waited to make their report until day after the incident. 

The Nebraska Department of Health and Human Services (“DHHS”) responded to an anonymous complaint about the resident’s abuse and made an unannounced site visit of the facility.  Shortly after, a retirement community manager claimed she was unaware of the abuse that led DHHS to the facility.  Several employees stated the manager must have been aware of the abuse because the employees reported such abuse.  Upon completion of the visit and a staff meeting, the two caregiver employees were terminated. 

The employees filed suit alleging, among other claims, unlawful retaliation after engaging in a protected activity.  The retirement community moved in the District Court for summary judgment, which was granted, resulting in a judgment against the employees and dismissing their claims.  The employees appealed. 

On appeal, the Eighth Circuit considered whether the lower court erred in granting the retirement community’s motion for summary judgment.  Under Nebraska law, an employer may not discriminate against an employee who opposed or refused to carry out any unlawful action of the employer.  Neb. Rev. Stat. § 48-1114(1)(c).  In other words, employees claiming retaliation must demonstrate that they opposed an unlawful practice of their employer. 

The two employees alleged engaging in the following activities: the report made to DHHS, internal complaints to supervisors about the abuse, and confronting a manager about her alleged ignorance of their report of abuse.  However, none of these acts were found to have opposed unlawful activity of the retirement community. Nor did they amount to acts of refusing to carry out an unlawful action. Thus, there was no protected activity on which to base a retaliation claim.  Accordingly, the Eighth Circuit upheld the summary judgment because the employees’ conduct in response to the abuse of the facility resident did not constitute protected conduct under Nebraska law. 

Obviously, the facts of the case suggest egregious acts of abuse. However, a retaliation claim is closely focused on the activities of employees and the response of the employer. Any time an issue arises, employers are cautioned to involve their attorneys at an early stage to avoid or minimize potential claims of retaliation and to appropriately respond to abuse, to complaints, or to protected activity of employees.

Thanks to Rob Toth, current law clerk and joining E|S as an associate attorney in the fall of 2022, for assistance in preparing this article.

Bonnie Boryca and E|S employment attorneys can be reached at 402-397-2200.

Arbitration versus Litigation

The terms ‘arbitration’ and ‘litigation’ are often paired off against each other. When or if a dispute arises, we recommend knowing the general differences and similarities between these procedures.  

Litigation is a lawsuit filed in a court of law. People may be self-represented, but more often, attorneys represent their clients in moving through the phases of litigation. Phases include filing a complaint (or petition, depending on the court and type of issues involved), answer, discovery, motions, and may eventually involve a trial to a judge or jury.

 Arbitration is like litigation in that it is a process to resolve a dispute between two or more parties. It is a private means of resolving disputes. Arbitration may occur non-publicly. It usually takes place when parties have agreed in advance, through a written contract, to arbitrate future disputes on a specified subject matter, in lieu of bringing a lawsuit in court. The arbitrators are paid by the parties to assist in resolving the matter. Pros of arbitration can be that it moves more quickly, can be less expensive, and results in a final resolution earlier.  A major con for some is that there is no means of appeal or review after an arbitrator enters an award. The exception to that would require showing deceit or fraud or major errors in the fairness of the process, within very limited circumstances.

 More and more, large employers may require new employees to enter arbitration agreements in the onboarding process at start of employment. They will often cover possible future employment-related disputes. Employees should think carefully about rights they give up doing so. Employers should think carefully about how to draft these kinds of agreements and about how to present them to employees for their review and agreement. Courts and policy makers in our legislatures continue to consider how, whether, and to what extent these kinds of arbitration contracts should be enforced.

 If you are faced with arbitration in lieu of litigation, or are considering entering an agreement to arbitrate claims, or would like to craft a valid arbitration clause for your business, an attorney may be able to help. An experienced attorney can ensure your rights are fully addressed and you are fully informed about what you give up and what you gain in arbitration versus litigation.

 Bonnie Boryca and Erickson | Sederstrom, PC’s team of attorneys are well-versed in these issues. 

Duty to Bargain on Residency of Officer in CBA between Police Union and City of York?

In Fraternal Order of Police v. City of York, the Nebraska Supreme Court considered whether the City of York’s failure to reach an agreement with the Fraternal Order of Police (FOP) regarding a requirement of residency in York County to obtain a promotion at the York Police Department was a prohibited labor practice.  309 Neb. 359 (2021).  The Court found that although it was not specifically mentioned in the collective bargaining agreement, the residency requirement was within the ‘compass’ of the agreement, and therefore no further bargaining on the issue was needed. Id. at 374.

The FOP is a labor organization/union that serves the purpose of dealing with public employers (here, the City of York Police Department) concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.  Id. at 361.  On January 9, 2019, the FOP entered a collective bargaining agreement with the City of York that gave the York Police Department the right to determine, establish, and implement policies for employee promotions.  Id. at 362.  The agreement made no specific mention of the Department’s right to require officers to reside in York County to be promoted.  Id.

After the Department directed an officer to sign an agreement requiring him to obtain residency in York County upon being promoted to sergeant, the FOP claimed such a requirement was not bargained for in their agreement with the City of York.  Id. at 364. The union then demanded bargaining of the residency requirement, alleging that it was a mandatory subject of bargaining under the Industrial Relations Act (IRA).  Id.  The City declined to bargain, and the FOP filed their petition before Nebraska’s Commission of Industrial Relations (CIR).  Id. at 366. 

At trial, the parties stipulated that the residency requirement for promotion was a mandatory subject of bargaining.  Id. at 363.  However, the CIR dismissed the claim holding that the matter was addressed by the collective bargaining agreement between the City of York and the FOP, and therefore the parties had no further obligation to bargain the issue.  Id. at 369.

The Nebraska Supreme Court affirmed the CIR’s decision, further noting that while broad and vague statements that employers “may do whatever they please” are insufficient to establish that all topics are covered by a collective bargaining agreement, such an agreement does not need to specifically mention every subject in order for it to be covered by the agreement.  Id. at 373.

This article was drafted by Erickson Sederstrom’s law clerk, Joe Johnson, with assistance and supervision of our employment law attorney Bonnie M. Boryca. She can be reached at 402-397-2200 or boryca@eslaw.com.