Most employers understand, in principle, that it’s illegal to retaliate against a worker who in good faith complains about an unsafe or illegal condition at work. In practice, however, retaliation cases are rarely black and white. Frequently, problems arise when an already difficult employee begins griping about something you feel is irrelevant or unimportant-and the worker is eventually disciplined or laid off. But as one recent case shows, every employee complaint should be viewed as a red flag signaling potential serious trouble, even if the disgruntled worker has little credibility or a history of performance problems. Here’s a look at why retaliation claims are fast becoming one of the biggest risks for employers-and what you can do about it.
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Trucker Complains About Long Hours
The new case involved Lupe Cabesuela, a paroled felon who worked as a truck driver for Browning-Ferris Industries in Santa Clara County. Several months after Cabesuela began work, a Browning-Ferris employee murdered another worker and then committed suicide. Tension among employees was high after the killing.
Cabesuela’s supervisor, Lynne Ashcraft, called an employee meeting to discuss safety and health issues. Cabesuela complained about the drivers’ long working hours, which he believed posed a safety hazard. Another supervisor asked the employees to “trust” the company, and Cabesuela responded: “Trust you? Over trust we just had a killing.”
Comments Perceived As Threat
After the meeting, Ashcraft told Cabesuela she considered his comments to be a threat of physical violence against her. Cabesuela denied threatening Ashcraft and said she had not allowed him to finish what he was saying. He was suspended and eventually terminated for making threats. Browning-Ferris also contacted the police, but no further action was taken.
Cabesuela sued Browning-Ferris and Ashcraft for wrongful termination, charging he was really fired in retaliation for exercising his rights under state law to complain about the drivers’ long work hours. The company countered by arguing, among other things, that Cabesuela could win his case only if he were able to prove the workplace actually was unsafe. Because he could not make such a showing, Browning-Ferris asked the court to throw Cabesuela’s case out.
Complaints Protected Even If Not Valid
But the California Court of Appeal ruled that Cabesuela had the right to take his case to trial. Under state law, it’s illegal to terminate an employee who makes a good-faith complaint about working conditions the person believes to be unsafe-even if in reality they aren’t.
So, if Cabesuela can convince a jury the real reason Browning-Ferris terminated him was for complaining- not for making threats-he could be entitled to damages for wrongful termination and infliction of emotional distress.
Why Retaliation Is A Growing Risk
In recent years employers have been seeing more and more retaliation suits for several reasons. First, employees have become more aware of their rights in the workplace. State and federal laws contain strong protections for whistleblowers, encouraging complaints while penalizing retaliation. Second, a string of legal victories has shown it’s easy to turn a run-of-the-mill termination case into an expensive retaliation claim as employees dredge up past complaints as a reason for their firing.
Once that happens, you’ll be facing a costly and risky lawsuit in which you will have to persuade the jury that your actions were justified.
Plus, some employees who sense they’re about to be fired make bogus reports about workplace safety, discrimination or some other issue. Then if they’re terminated, the employees claim they were victims of retaliation. Because it can be difficult for you to prove they did not have a reasonable, good-faith belief in the truth of their complaint, a cash settlement may be the only cost-effective way to end the dispute.
When Workers Are Protected
To make matters worse, you can be liable for retaliation in a wide variety of situations. For example, employees may be protected if they:
- Threaten to file a charge or complaint.
- Complain to anyone, including a government agency, supervisor, co-worker or newspaper reporter, about unfair treatment.
- Complain on behalf of themselves or someone else.
- Refuse to obey an order because of a reasonable belief that it’s discriminatory, illegal or unsafe.
- Request an accommodation for an alleged disability.
- File a charge, testify or participate in an investigation or hearing.
How To Avoid Lawsuits
Fortunately, there are several steps you can take to limit your risks. Whenever you learn an employee has a complaint, always take it seriously and let the person know you will investigate and take action if appropriate-even if you don’t trust the person’s motives and you’re convinced the charge isn’t valid.
If an employee who has made a complaint is having performance or disciplinary problems, make sure these issues are well-documented and the person has been made aware of them. Strongly consider issuing a warning first, and let plenty of time pass before you take more serious action. This will make it harder to show a connection between the discipline and the employee’s complaint.