Hi Brent. Remember, your original scenario had the complaining witnesses, who were eventually dismissed from the mission when their manager got sick of listening to their complaints, file a retaliation lawsuit. Now, to get out of that, the mission is going to have to show a motive other than retaliation for firing them.
Our question today is, how do you avoid a retaliation lawsuit?
- First, have an organizational culture that encourages complaints. If you can show that you often receive, and respond well, to complaints, it makes it much less likely that you are retaliating against a given employee.
- Second, if you have dealt with the complaint promptly, had an investigation, and dealt with any wrong-doing, that helps.
- Third, do follow-ups with people who have filed a complaint to make sure there is no retaliation. Ask them on your own initiative if they are being treated okay.
Here are the basic elements for a retaliation lawsuit:
- The employee complained.
- The employer knew it.
- The employee was disciplined or terminated because she complained.
The original complaint doesn’t have to have merit. It could be wrong or ill-conceived. It is still going to be difficult to get the claim dismissed. Sometimes the court will even let a case go forward on just retaliation, after dismissing the original claim.
Now you are going to have to show a non-retaliatory business reason for the termination, so let’s hope you had one. And it definitely helps to be able to show why you are firing the employee, such as disciplinary write-ups for whatever the employee is doing that is unsatisfactory.
You don’t have much defense for a retaliation claim if all the employee reviews are good and you apparently just let the person go out of a clear blue sky. Resist the temptation to be overly kind in regular performance reviews, and take the time to document all performance deficiencies. If you ever need to answer questions about a termination, whether it is defending against retaliation, or an accusation of discrimination, you want objective evidence to back up your decisions.
Brent, we’ve stayed with this whistle-blowing topic for a while now. You had some interesting questions about termination and discipline in general, so let’s turn to those.
Disclaimer: not official legal or psychological advice or opinion
- What your Mission Needs to Know about Internal Investigations, Part 3: Wrapping up the Investigation
- What Your Mission Needs to Know About Internal Investigations, Part 2: Conducting the Investigation
- Are You Asking a Candidate “Illegal” Questions in the Job Interview?
- Questions and Questionnaires, Part 6
- Questions and Questionnaires, Part 5