It is widely known that employers are prohibited from retaliating against employees for engaging in “protected activity.” But what is “protected activity”? Unfortunately, the definition of “protected activity” varies widely across state and federal laws. Since there is a wide scope of conduct that could be protected from retaliation, it is often difficult for employers to ensure such illegal retaliation does not occur. The recent case from the U.S. Court of Appeals for the Eleventh Circuit highlights this complexity. See Simon v. Healthsouth of Sarasota Limited Partnership, 2022 WL 3910607 (11th Cir. Aug. 31, 2022). It is important for employers to understand what employee activity/conduct is protected under the law and to train managers so as to avoid retaliation claims.
In Simon, the Eleventh Circuit acknowledged that the same legal framework applies under the False Claims Act (FCA) and Title VII of the Civil Rights Act of 1964 (Title VII) for retaliation claims. The Eleventh Circuit explained to establish a prima facie case of retaliation under either the FCA or Title VII, employees must show that: they engaged in statutorily protected activity, an adverse employment action occurred, and the adverse action was causally related to the protected activity. However, what constitutes “statutorily protected activity” under the first step of this framework differs under the FCA and Title VII. Under Title VII, the definition is arguably much broader. An employee only needs a...
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