Most employers know that various employment laws prohibit retaliation against employees who engage in protected activity, such as those who complain of discrimination, report purportedly unlawful conduct, or support fellow employees’ charges of similar conduct. What fewer employers may realize is that legal prohibitions on retaliation may, in some circumstances, extend beyond employees’ actual employment. Some of the post-employment conduct courts have considered to be retaliatory includes: providing poor recommendations (or refusing to furnish the same), blacklisting, making threats to future employers, opposing applications for unemployment benefits, filing false criminal charges, and filing unfounded counterclaims. As such, before taking action against former employees, employers should consider whether a court might consider such conduct to be in direct retaliation for a former employee’s opposition to an unlawful employment practice.
Other post-employment retaliation lawsuits have arisen out of more peculiar fact patterns. For example, in Oram v. SoulCycle LLC, et al., 979 F. Supp. 2d 498 (S.D.N.Y. 2013), a former indoor cycling (or “spin”) instructor at SoulCycle brought wage-and-hour claims. Upon bringing the lawsuit, SoulCycle banned the plaintiff and his attorney from attending spin classes. The plaintiff then amended his complaint to include claims of retaliation, contending that: (a) the plaintiff, as a former employee, was protected by anti-retaliation provisions; and (b) SoulCycle’s ban on attendance qualified as an adverse action, because it “might have dissuaded a reasonable worker from making or supporting similar charges.” Despite dismissing the plaintiff’s wage-and-hour claims, the court declined to dismiss the plaintiff’s retaliation claim, finding that anti-retaliation provisions extend to former employees and a “reasonable worker” in plaintiff’s position could find the ban on attendance to be retaliatory.
Nevertheless, despite the holdings mentioned above, employers can often be justified in taking well-founded action against former employees.