By: Douglas B. Large, Partner
August, 2014
Almost without exception today, employees claiming alleged wrongful termination are now also including a charge of some form of unlawful retaliation. The dictionary generally defines “retaliation” as “getting back at” or “returning punishment in kind.” The prototypical disgruntled employee who has either been disciplined or discharged will often contend that such adverse employment action was retaliatory -– meaning that it occurred because his or her employer wanted to get back at him or her because of something done or said by the employee. A good example is the “whistleblower” scenario where, after reporting some improper or illegal conduct by the employer, the employee gets fired.
Unfortunately, a claim of retaliation can be made by any employee who makes even an internal complaint or observation that some regulation requires a change at work, if they believe they are subsequently mistreated as a result of that action. Other common examples are employees who contend the employer is not properly complying with wage and hour laws, or not following health or safety regulations, or an employee is somehow being punished for not accepting unwanted sexual advances or not following employer directions believed by the employee to be improper or illegal.
As you might imagine, such claims are not unlike sexual harassment claims in that they frequently flow from a she said, he said situation. In other words, there is often no independent eye witness or other corroborating evidence to establish what actually was said or happened.
Regrettably, it is becoming commonplace for poor performing employees to try and “set up” a retaliation claim by making complaints about almost anything when they fear they are at risk of being terminated — the purpose being to provide them with the argument that retaliation, instead of poor performance, was the real reason why they were eventually terminated.
So, how does a prudent business arm itself to avoid, or better enable it to defend, a claim of retaliation? The one word answer is documentation. That one word does not mean having to prepare lengthy documents which no busy employer ever has time for. It simply means that a short, one paragraph note should be made (in either handwriting or email) confirming any and all complaints, statements, observations or expressed beliefs that the business is (or even may be) doing something improper or illegal. All such employee communications should be taken seriously, even if they are untrue or frivolous. The employee’s charge should be promptly investigated, responded to and, if valid, corrected. If corrective action is taken, a brief note thanking the complaining employee for bringing the issue to management’s attention should be considered.
With such a company policy, the complaining employee will be acknowledged (and possibly thanked), the complaint refuted or confirmed, and any needed corrective action taken. The process itself will show respect for the employee’s position/opinion and reduce the likelihood of a credible claim of retaliation should the employee later be terminated for a legitimate business reason (which, hopefully, will also be supported by appropriate documentation. There’s that word again!).
Is this simple solution fool proof? Certainly not, but it is far better than no documentation at all, which will surely make your business an easy target for claims of retaliation.
Douglas B. Large, Partner
DLarge@BFASLaw.com
(Direct) 805.966.7757
DISCLAIMER: This Advisor is one of a series of business, real estate, employment and tax advisories prepared by the attorneys at Buynak, Fauver, Archbald & Spray, LLP. This Advisor is not exhaustive, nor is it legal advice. You should discuss your particular situation with us or with your own attorney. Our legal representation is only undertaken through a written engagement letter and not by the distribution of this legal Advisor.
