While some courts have held that a paid suspension is not an adverse employment action, some judges have recognized how a paid suspension can deter an employee from engaging in further protected conduct and is therefore a retaliatory adverse action:
- Because suspension without pay is a way to dissuade employees from engaging in protected conduct, the suspension of an AIR21 whistleblower for two weeks without pay was an adverse employment action. Cont’l Airlines, Inc. v. Admin. Review Bd., USDOL, No. 15-60012 (5th Cir. Jan. 7, 2016) (unpublished) (2016 U.S. App. LEXIS 324; 2016 WL 97461)(case below ARB No. 10-026, ALJ No. 2008-AIR-00009).
- “Suspension, regardless of whether it is paid, is adverse to the employee in and of itself. It is punitive in nature and at a minimum becomes part of one’s permanent employment record, affecting one’s ability for advancement, or to find other future employment, or gaining valuable job experience.” Mosunic v. Nestle Prepared Foods Co., No. 15-cv-380, 2017 WL 3531465, at *3 (D.R.I. Aug. 16, 2017).
- Loss of opportunities to gain job experience and exclusion from career-building work, including when such loss of opportunity results from a paid suspension, amounts to an adverse employment action. Dahlia v. Rodriquez, 735 F.3d 1060, 1078 (9th Cir. 2013) (being placed on administrative leave can constitute an adverse employment action for purposes of a First Amendment retaliation claim).
- “Although administrative leave with pay may be welcomed by some, the threat of forced leave could reasonably deter employees who prefer working from engaging in protected activity.” Dilettoso v. Potter, No. CV 04-0566-PHX-NVW, 2006 WL 197146, at *8 (D. Ariz. Jan. 25, 2006).
- In Rogers v. Henry Ford Health Sys., 897 F.3d 763, 776 (6th Cir. 2018) the Sixth Circuit decided that a reasonable factfinder could conclude Rogers had suffered a materially adverse employment action. 897 F.3d at 776. Rogers was placed on paid leave for just under a month, escorted out of her office, and referred for a fitness-for-duty exam. Id. Her work email sent out an automated reply that stated she was no longer with her employer. Id. On returning to work, Rogers was given a choice between a severance package and an inferior position at a subsidiary of her employer. Id. The Court held that “[t]he cumulative effect of these actions is sufficient such that a jury could find that they would have dissuaded a reasonable employee from making a charge of discrimination.” Id.
As the First Circuit has held, “employment actions are less susceptible to categorical treatment when it comes to the question of whether they are or are not materially adverse.” Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 472 (1st Cir. 2010). Instead, whether a challenged action is materially adverse is “an objective test and ‘should be judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances.’ ” Id. (quoting Burlington Northern, 548 U.S. at 71, 126 S.Ct. 2405).
In a False Claims Act whistleblower retaliation case, a district judge found that even though the plaintiff continued to receive full benefits, salary, and commissions as if she had reached 100% of her quota during her administrative leave, the leave was materially adverse because:
- she was prohibited from working for about a year, and thus, could not grow herself professionally; and
- she lost the opportunity to attend a “President’s Circle trip” and the opportunity to earn commissions above the 100% quota.
Under these circumstances, a jury could conclude that the leave was materially adverse.
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Whistleblower Retaliation Lawyers
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Described by the National Law Journal as a “leading whistleblower attorney,” founding Principal Jason Zuckerman has established precedent under a wide range of whistleblower protection laws and obtained substantial compensation for his clients and recoveries for the government in whistleblower rewards and whistleblower retaliation cases. Three of the cases he worked on are featured in Tom Mueller’s seminal book about whistleblowing Crisis of Conscience: Whistleblowing in an Age of Fraud and Dan Maldea’s Corruption in U.S. Higher Education: The Stories of Whistleblowers. The False Claims Act qui tam cases that Zuckerman has worked on in conjunction with other attorneys have resulted in recoveries in excess of $100 million, and he has secured settlements above $1 million in eight SOX whistleblower retaliation matters.
In 2019, the National Law Review awarded Zuckerman its “Go-To Thought Leadership Award” for his analysis of developments in whistleblower law, and Washingtonian magazine has named two of our attorneys to its list of Top Whistleblower Attorneys. U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area in the 2020 edition “Best Law Firms.”