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Could former Google engineer have a valid retaliation claim? P.2

Previously, we noted about the case of former Google engineer James Damore that the strength of any retaliation claim he might make would likely depend on whether Google had knowledge of the complaint he made to the National Labor Relations Board prior to his termination, as well as the extent to which Google was motivated by the complaint in its decision to fire him.

Another issue, we noted, was whether Damore will choose to pursue a retaliation claim under the National Labor Relations Act or state labor law. The significance of that decision is that the causation standard can vary between state law and federal law.

Causation is an important issue in any retaliation claim, because adverse employment action does not violate the law unless there is a causal connection between the employer’s action and the employee’s “protected activity.” Under some federal laws, for cases involving private sector and state and local government employees, the causation standard is that adverse employment action would not have occurred “but for” a retaliatory motive. This means that, even if there are multiple causes for the employer’s actions, the employer wouldn’t have taken adverse employment action against the employee without a retaliatory motive.

Some federal laws and some state labor laws, though, use a stricter causation standard known as “motivating factor” causation. These laws prohibit employers from taking adverse employment action even when a retaliatory motive is only a background consideration.

State labor laws vary on the causation standard for retaliation claims. In California, retaliation must have been a “substantial motivating factor,” while New York has its own standard. We’ll say more about this in our next post.

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