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Beware the Complaining Employees
December 23, 2009
By Olivia Goodkin
An employee named Manuel Barbosa thought he was due overtime pay, and that
the time clock he used to record his time was broken. His supervisor
approved the two requested overtime hours of pay, but the payroll
administrator did not think the time clock was broken. She spoke to the
human resources manager, who ran a report of the scans at the security gate
entrance. The report showed Barbosa did not work overtime when he said
he did.
In a subsequent meeting, Barbosa was asked if he was sure he worked overtime,
and he said "yes." After then being shown the security gate reports, he
retracted his statement and said he must have been confused; he offered to
pay back the overtime wages. Instead of accepting the money back, the
company terminated him for falsifying time records. Barbosa sued the
company for termination in violation of a public policy.
A majority of states recognize employers may not discharge employees in
violation of a "public policy." A public policy is a fundamental,
well-established policy that concerns society at large rather than the
individual interests of the employer or employee. Usually, the policy must
be contained in a statute or a constitution.
In this case, Barbosa claimed he made a good faith claim that he was
entitled to overtime pay under both state and federal statutory law. The
duty to provide overtime pay is a well-established fundamental policy
affecting broad public interests. The California court that heard Barbosa's
case held that he had presented enough evidence of his good faith in making
his request for overtime pay, and that his termination constituted a
wrongful discharge in violation of public policy.
Stated another way, an
employee's good faith, but mistaken, belief that he is entitled to a statutory
right is protected from employer retaliation.
What Constitutes Retaliation
Employers may not retaliate against employees for asserting statutory
rights such as filing a complaint that asserts violation of any civil rights
or "blowing the whistle" on illegal practices of the company, including
violation of tax laws or safety infractions that violate safety laws and
regulations
, testifying or assisting in an investigation of a complaint made by another
employee
, or making a complaint of harassment by an employee or supervisor
.
This is not an exhaustive list.
Actions that constitute unlawful retaliation include termination, demotion,
refusal to hire, suspension, and being treated unfairly with respect to
employee benefits.
What Must An Employee Prove to Win a Retaliation Case
The employee must prove he engaged in a protected activity; that the
employer then subjected him to an adverse employment action; and that there
is a causal link between the activity and the adverse action. A causal link
is shown if there is proximity in time between the protected activity and
the adverse employment action. In other words, the shorter the time between
the employee's activity and the demotion or other employment action, the
easier it is for the employee to show the causal link.
If the employee can demonstrate all of the above, then the burden of proof
shifts to the employer to articulate a legitimate, non-retaliatory reason
for the adverse action. If the employer can do this, then the employee has
the burden to prove the articulated reason for the adverse employment
action is pretextual.
How Can Employers Prevent Retaliation Cases
Often employers are caught in a bind. They have legitimate reasons for
terminating an employee, such as for poor performance, but they are afraid
to do so because the employee may have recently been involved in a protected
activity.
Employers do not need to tolerate detrimental work performance in fear of
retaliation claims. We suggest the following to prevent retaliation claims.
First, companies must diligently document performance issues with employees.
Employees must be told about poor performance, attendance, or other issues;
it is not enough to simply "paper" the employee's personnel file with email
or notes about problems with the employee. Warnings and counseling sessions
should be put in writing, signed by the employee, and placed in the
employee's file.
Employers should follow up with the outcome of a probation
period.
Second, whether or not the employer has carefully documented the performance
issues related to a problem employee, before terminating or taking some
other adverse employment issue against an employee, employers must stop and
ask:
1. Has the employee ever asserted any statutory rights that qualify as
a public policy?
2. Has the employee ever complained about violations
by the company of any statutory duties?
If the answer to either of the above questions is yes, and if the protected
activity occurred recently, then the employer needs to consider whether it
can delay the adverse employment action. This strategy may help avoid a
presumption of a causal relationship between the protected activity and the
adverse action.
Nevertheless, it is not always possible, feasible or in the company's best
interests to delay terminating an employee whose performance is lacking.
If
the employer can articulate a real non-discriminatory or non-retaliatory
reason for terminating the employee, then it will be able to properly defend
itself against any claims brought by the employee.
It is important to give the employee a letter or other written statement at
the time of termination that clearly states the reasons for termination. If
the employee believes he or she has been wronged, and seeks the advice of
counsel, most likely the attorney will ask to see all documentation
concerning the employment and termination. If the employee produces the
termination letter the attorney is much less likely to believe that there is
a viable retaliation case if the termination letter includes a reasonable
and fair rationale for termination.
Supervisors should be trained to make sure human resources is aware of all performance issues relating to the employee so they may be handled
in a company-wide consistent fashion. Supervisors can thusly help prevent
claims against the company.
Olivia Goodkin, a partner at Rutter Hobbs&Davidoff in Los Angeles, is a specialist in labor and
employment, business litigation and dispute resolution and intellectual
property law. She represents employers in discrimination, wrongful termination, sexual
harassment, wage and hour and other employment related proceedings, as well
as unfair competition and misappropriation of trade secrets cases. To
contact the author, call 310-286-1700 or e-mail her at ogoodkin@rutterhobbs.com.
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