By BLR Founder and CEO Bob Brady

[The following article previously appeared on HR.BLR.com®.]

Consider this scenario: An employee is a major problem. Regularly late. Misses deadlines. Difficult to deal with. Her supervisors have given good counseling along the way. The file is in good shape, clearly documenting the problem and what has been done. HR is involved, and the plan is to terminate the employee. A meeting has been scheduled.

Then, out of the blue before the meeting can be held, she files a harassment suit against someone else in the company, an employee who was in no way involved in the original problem.

Can you go ahead with the termination? What should you do if you want to do so?

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Retaliation fears

That was the question posed by Tara Bedeau, of the San Francisco office of the Littler Mendelson law firm, at BLR’s first annual National Employment Law Update, held November 2008 in Orlando.

Members of the audience had various suggestions:

  • "Check the file."
  • "Continue the investigation."
  • "Put her on notice."

But Bedeau said that the key to whether you can consider going ahead is simple. First of all, are you certain there is no connection between the planned discipline and the harassment claim? Secondly, "How have you treated other similarly situated people?" she asked. If the documentation in this case is good, proving that there is no connection and that you’ve treated other employees the same way, it may be possible to go ahead with your plans.

"Consistency is the key," she said.

The claim of harassment elevates the risks, but Bedeau cautioned that you must still manage performance. You have to be confident that the discipline is totally unrelated to the harassment claim and that it is consistent with what you’ve done in the past. You still have a duty to investigate her charge and, if it is found to have merit, to take action against the offender. There is some risk.

Retaliation

The topic of Bedeau’s presentation was "Preventing Unlawful Retaliation: Making Sure You're Headed in the Right Direction." And, as she listed the dozens of laws prohibiting retaliation, she made it clear that retaliation claims are serious. There have been numerous cases when employees have sued, lost on their original claim, but won large penalties because of retaliation.

Tips

Bedeau offered these tips for avoiding retaliation claims:

  • Pay attention (to any protected activity).
  • Preempt retaliation claims by quickly and effectively responding to all complaints of unlawful conduct or illegal activity.
  • Have an independent, competent professional thoroughly investigate complaints.
  • With retaliation claims, pay careful attention to the chronology of events, especially "action-reaction."
  • Follow up and monitor situations.
  • Make sure to deal separately with any additional issue that might arise during an investigation (e.g., a complainant’s performance problem or misconduct). Mixing other issues with the complaint may set the stage for a retaliation claim.
  • Never threaten retaliation against an employee—even in the mildest form.

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  • Avoid any negative emotional expressions about an employee’s complaint, in statements or in e-mail.
  • Respond quickly and thoroughly to any complaint of unlawfulness or illegality.
  • Before you act against an employee who has engaged in protected activity, stop and review all of the facts.
  • Have a good anti-retaliation policy that is well publicized.
  • Work with HR and legal.
  • Be wary of requiring a complainant to transfer or change jobs to resolve a harassment situation.
  • Document. Good documentation is systematic, ongoing, detailed, and accurate.
  • Train management.

Remember that whistleblowers are heroes to the public. Public sentiment will be against you if the case becomes public.

Tara Bedeau is an attorney with the San Francisco office of Littler Mendelson, a well-known and highly respected employment law firm. Her practice consists almost entirely of training HR and other company managers in employment-related matters.