PERB clarifies standards for proving public employer retaliation against employees

Palo Verde Unified School District (2013) PERB Decision No. 2337 is a recently-decided PERB case involving retaliation and the types of evidence that can prove a public employer’s unlawful motivation for retaliating against an employee because of that employee’s union activity. 

PERB reinforced the principle that unlawful motivation of an employer can be established by different combinations of evidence.  In addition, this recent PERB decision emphasizes that an employer’s defenses to a charge of retaliation cannot be easily established.

PERB recognized that there is rarely direct proof of unlawful motivation in a retaliation case.  Unlawful motivation, however, can be proved by circumstantial evidence, such as closeness in timing (“temporal proximity”) to the adverse action and the employee’s protected activity, or evidence that the employer did not follow established policies and procedures when dealing with the employee in question.  An employee may come forward with “any other facts that might demonstrate the employer’s unlawful motive.”

Once the employee has put forward evidence to show that the employer took an adverse action against the employee, it is the employer’s burden to prove: (1) that the employer had a non-discriminatory reason for the adverse action, and (2) that the adverse action would have occurred regardless of the employee’s protected activity and the employer’s anti-union animus.  The employer has to show its action was not because of an employee’s protected activity, but that the adverse action was in fact taken for a legitimate reason—and they cannot simply make up a legitimate reason.

These standards are helpful to keep in mind when investigating cases where it seems an employer has retaliated against an employee due to union activity. 

For questions about specific retaliation cases, contact your labor law counsel. 

By Sean Graham | November 19, 2013

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