What's an employer to do when there is ample documentation to terminate an employee, but the employee has recently engaged in a protected activity? For example, what if the employee files a workers' compensation claim or takes FMLA leave in close proximity to performance issues? This presents a real timing dilemma for employers: Doesn't it look retaliatory to terminate the employee immediately after the protected activity?
"There are high-risk terminations and low-risk terminations. When you're dealing with someone who's in a protected category – someone who's a minority, or a woman, or someone who's over 40 – I generally consider those [terminations] higher risk because they're in a number of protected categories.
"Raising a claim is another way that employees get in a protected category, because filing a claim and being a whistleblower or someone who's protected from retaliation is a way that someone can be protected from termination under certain circumstances." Dan Ko Obuhanych outlined in a recent CER webinar. The scenario an employer faces when needing to terminate an employee who has engaged in a protected activity is certainly high risk.
How to avoid retaliation claims when timing raises red flags
How can an employer mitigate the risk in this scenario? Actually, there are many actions the employer can take. The first is documentation. Do you have documentation of the rationale for termination? Did it exist prior to the employee engaging in the protected activity? Keep detailed documentation of the time and date of when the termination decision was made and when the protected activity was learned about.
Don't automatically postpone the termination just because the timing may look questionable—delaying the termination sometimes makes the situation worse. Generally it is best to proceed with the termination if you can clearly establish it has nothing to do with the protected activity.
To avoid this situation in the future – and to ensure the documentation exists when you need it – be sure to proactively deal with performance problems before a long-time poor performer gets the idea to engage in protected activity.
Avoiding retaliation claims and other 'suspicious' actions
Here are some other scenarios involving employer actions that could be deemed suspicious—and some ways to avoid this suspicion.
- Scenario 1: Proof – or what could pass as proof – exists that the employer concocted a false reason for the termination. This might include terminating an employee through a reduction in force (RIF), but then replacing the employee. Another example might be if an employee was terminated for performance problems, yet the employee appeared to have a good performance record and similarly-situated employees were treated inconsistently.
To avoid suspicion in these situations, don't conduct a termination without first objectively looking at the situation and assessing the legitimacy and consistency of the actions. - Scenario 2: An employee appears to have been treated differently after engaging in a protected activity. For example, perhaps the employee was being given the cold shoulder treatment or even a more strict performance evaluation.
To avoid this scenario, be sure to train managers to be consistent in their actions and to document any problems as they occur—do not wait until later, as this may cast doubt on the rationale for the action. - Scenario 3: A complaint has been made that the employer has engaged in inappropriate or illegal conduct (a whistleblower claim, harassment claim, etc.), and the employer appears unconcerned about legal compliance. The employer, for example, may not appear to properly investigate the legal compliance issue, or take any corrective action.
To avoid this scenario, be sure to have a legal compliance policy. Also, when complaints arise, be sure to express appreciation for the complaint and properly investigate it—even if it may seem unfounded. After the investigation, be sure to give the complainant a written response.
The above information is excerpted from the webinar "Employment Documentation in California: Avoid Costly Mistakes with Defensible Drafting Strategies." To register for a future webinar, visit CER webinars.
Dan Ko Obuhanych is an attorney in the Employment Practices Group of Fenwick & West LLP in Mountain View. He focuses on labor and employment law, litigating unfair labor practice claims, discrimination/retaliation lawsuits, grievance/arbitration matters and EEOC/DFEH charges.