By: DAVE CAROTHERS
Credit: CAROTHERS DISANTE & FREUDENBERGER LLP
Published: September 1, 2015
In my 27 years of defending workplace retaliation cases, I’ve seen a troubling number of complaints go before a jury even when the underlying allegation had no merit and failed to make it past pretrial hearings. These types of complaints are on the rise, partially because both plaintiffs and attorneys recognize that they’re much easier to prove than the underlying allegation. This column has eight tips to protect employers from ex-employees waging wrongful retaliation claims.
Example of Meritless Allegations
One example of the problem with meritless allegations can be found in a case I recently represented on behalf of an assisted living facility sued by a short-time employee claiming to have been fired in retaliation for complaining about patient abuse.
There were other allegations that bothered me in the case (where post-trial motions are still being heard), but when plaintiff’s lawyer presented this retaliation theory against my client, I took a deep breath. The patient abuse complaint was baseless, but still might be enough to allow the claim to advance further in the court system.
During pretrial hearings, even if the judge dismisses the plaintiff’s underlying complaint, he or she still could allow a retaliation claim to go to trial. The employee simply has to show that he or she was engaged in protected activity, that a complaint was made about it, and that the employee suffered an adverse employment action. That’s pretty easy. And once the case is in front of a jury, the employer really needs a strong defense because in he-said she-said situations, jurors tend to favor the employee. Legitimate or not, the retaliation claim adds a little buffer to an otherwise shaky claim of discrimination, harassment, or any other protected activity.
Employers: Acknowledge This Is a Real Problem That’s Probably Going to Get Worse
Because of easy online access to quasi-legal advice, it’s easy for an endangered employee to see this as a good way to insulate himself.
That’s probably why, since 1997, retaliation claims are on the rise. In 2013, such claims made up 41 percent of all charges filed with the U.S. Equal Employment Opportunity Commission, according to its statistics.
Yes, it’s a headache for employers. However, I also would estimate that out of the retaliation cases I’ve handled, in the few in which the former employee prevailed, a good 40 percent could have swung the other way if the employer had taken some simple steps as set out below.
Have a written policy outlining how employees could make complaints. In the recent case, the judge rejected most of the plaintiff’s complaints, including the retaliation claim. This occurred because the defense was able to show that it: (1) had a written policy outlining how employees could make complaints with alternate reporting chains both internally and externally; (2) conducted regular training on reporting; and (3) had mandated, as a condition of employment, that the then-employee undergo reporting training required by state law. The plaintiff had admitted to being aware of and trained in the policy, and couldn’t explain why the reporting avenues were not explored.
The employer’s reporting procedure should go a further step and encourage reporting. To further insulate against the average, pro-employee jury, have a corporate culture that’s supportive of criticism and demonstrates openness to exploring concerns.
Make sure the team reviewing the complaint follows up with the employee and demonstrates interest. Whoever takes the lead on investigating the complaint needs to circle back to both management and employee and say, “Here’s where we are on this.” Now I’m not saying the employer has to be 100-percent perfect, but it must take the complaint seriously and investigate it. The investigation may be inconclusive, but the issue is whether it was taken seriously and investigated. So take it seriously, look into it, act in good faith and come to some conclusion when you report back to the employee and let him know where he (or she) stands. In that meeting, ask the employee whether he has anything to add, or if other employees should be questioned about the problem.
Have an outside vendor process the complaints. The gold standard is to have a reporting procedure that involves a third-party vendor. Using a vendor so it’s not the employer receiving the complaint takes a lot of the hubris out of the complaint process and safeguards against the allegations of, “I was thrown under the bus and not taken seriously.” Don’t exclude the employer or manager. Just try to divert the handling of the complaint to a vendor.
All employers should review their employee handbooks. Make sure the chain of reporting, and whom to report to, is clearly identified in the employee handbook and that these procedures are clearly followed. Include a signature page in the handbook, which the employee must sign and return, to indicate he has reviewed and understands it.
Front-line managers need to be trained on how to field complaints. Managers need this training to recognize when a complaint is serious enough to immediately report it up the chain in a way that it’s effectively investigated. I’ve seen a lot of cases where the manager claimed not to be aware that the employee was making a public-policy complaint, or handled the situation informally over coffee and then struggled on the witness stand to recall the conversation. This kind of training is essential and always has to be on a manager’s radar screen so the employee can’t later complain that nobody did anything.
Companies need to coordinate among their different units. Suppose Bill complains to his direct supervisor, Joe, about faulty equipment on the shop floor, and suppose Bill happens to be on the finance committee’s layoff list. Does the committee know about Bill’s complaint? Does Joe know that Bill’s on a layoff list? When the layoffs come down, the company, on an institutional level, needs to have its eyes wide open.
Documentation is always a huge help. It might not be enough to terminate an employee due to a three-year history of subpar performance. Document the performance issues, share the concerns with the employee through a formal review procedure, and create proof that the documentation was shared. If nobody shared the reviews with the employee, the employee could later argue that nobody told him his performance was subpar. I’ve asked so many jurors: What was important in your finding for the employer? They consistently reply that it’s because the employer had the proper documentation.
Yes, juries tend to put the burden on the employer to prove it followed proper procedures. But when the employer brings that proof to court, those jurors generally find for the defense.
Dave Carothers, trial lawyer at Carothers DiSante & Freudenberger, LLP in San Diego, has successfully defended employers against claims of wrongful termination, sexual harassment, breach of contract, Americans with Disabilities Act, wage-and-hour violations and discrimination. He can be reached at email@example.com.