About a quarter of all charges filed with the U.S. Equal Employment Opportunity Commission involve allegations of employer retaliation against a worker for protected activity. EEOC prohibits retaliation "against a person because he or she has opposed that which he or she reasonably and in good faith believes to be unlawful discrimination, sexual harassment in employment, or because he or she has made a charge, filed a complaint, testified or participated in an investigation, proceeding, or hearing."

The typical scenario involves a worker complaining to management about discrimination or harassment on the job, followed by some action by management (frequently the accused supervisor), or by fellow employees with management’s actual or constructive knowledge, that adversely affects some term or condition of employment. For example, employee complains and is fired, demoted, transferred, deprived of desired overtime, given undesired overtime, changed to a less desirable shift, denied vacation leave, reduced in pay or benefits, harassed by fellow workers as not being a "team player." Employer is sued for retaliation. Jury awards big damages.

Retaliation claims don’t arise just in connection with employees’ objections to discrimination on the job. Under various federal and state "whistleblower" laws, an employees who reports what they believe to be illegal conduct on the part of their employer are also protected from retaliation. Examples include complaints of OSHA safety violations, wage and hour violations, unfair labor practices, environmental and hazardous waste violations and USDOT rules violations. Non-employees, such as former employees and independent contractors, may also be protected from retaliation.

In addition, many workers’ compensation statutes (including Florida’s) prohibit retaliation against an employee who has made a valid claim for benefits. This is becoming an almost automatic part of workers’ compensation controversies where the employee has been discharged after an injury, if for no other reason than to drive up the value of the claim for settlement purposes.

Employers and employees should take note that an employee engaging in a protected activity, such as filing a discrimination complaint, doesn't immunize the employee from the performance and conduct rules. Employers with accurate records of employees’ job shortcomings and misconduct can use them to defend disciplinary actions against employees who may believe they are "bulletproof" because of their complaint.

Complaints made in good faith are protected, even if they ultimately are found to be without merit. (Except that in Florida, a workers’ compensation claim must be valid for the claimant to be protected.)

Probationary or "at-will" status of an employee is not a defense against a retaliatory termination charge.

Employers can best protect themselves and their employees by adopting, publicizing and enforcing non-retaliation policies and procedures for employees to use in making internal complaints about illegal activities.

Many retaliation charges can be avoided by the employer adopting disciplinary policies and procedures that minimize the chances of a hasty or ill-advised disciplinary action being taken. No supervisor should be allowed unilateral authority to impose discipline–especially termination. All such decisions should be made only after careful review by a higher authority fully knowledgeable about the employer’s policies and the law.

Supervisors should be required to follow certain guidelines before imposing discipline:

• Consult with Human Resources and review existing policies concerning discipline.
• Draft a performance review identifying the exact problem, with the details of each observed instance.
• Unless the offense is a "death penalty" violation meriting immediate discharge, such as workplace violence, gross insubordination, theft or dishonesty, give a final written warning and a specific time by which the employee must correct the deficiency or face termination.
• If the deadline is not met, contact Human Resources and get approval to notify the employee that they are being fired for unsatisfactory performance.

Before approving the discharge, Human Resources should insure that:

• All progressive discipline steps (if any) have been completed and documented.
• The employee has been counseled and assisted regarding performance deficiencies, but there is no realistic expectation for satisfactory performance.
• Alternatives (transfer or retraining) are ruled out.
• Termination recommendation and supporting documents have been submitted to Human Resources.
• Discharge has been authorized in writing by Human Resources Director or other designated manager.
• Written notice of termination has been given to the employee, along with any required notices (COBRA, ERISA, etc.).
• Payroll has been notified of the termination.
• All company property has been retrieved.
• All records have been delivered to Human Resources for retention.

If these guidelines are consistently followed, employers will have their best opportunity to salvage employees whose performance may be brought up to acceptable standards, and of successfully defending themselves from employee retaliation claims.

For more information on this and other employment law issues, contact Omer Causey at 941-366-7550.

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