How do you avoid retaliation lawsuits? The true answer is by a bit by luck. Despite all measures that some employers take, the inevitable fact is that some employees will file suit regardless.
But all hope is not lost for employers. There are steps that employers can take to reduce the likelihood of a suit. Indeed, the single most important factor that an employer can apply is following the letter and spirit of the law. The Pennsylvania Employment Law Blog recently posted a few of its tips that are worth considering. Among them:
- Investigate even the Half Baked Complaints: Hindsight is 20/20 and its what employers are judged by in court. If an employee takes the time to complain about "illegal actions" then you take the time to make an investigation. First, ask the employee make a complete report of his suspicions. If the complaint involves you, let someone else do the investigation, please.
- Make a Written Finding: In the event of whistleblower type complaints, make a written finding that they were investigated and played no part in the termination decision and why.
- Manage the Appearance of Retaliation: Examine the timing of the whistleblower complaints and any discipline or termination decisions.
In Connecticut, there are specific laws that address whistleblowing and retaliation, including Conn. Gen. Stat. Sec. 31-51m. As a result, employers who are aware of employees who have made complaints will need to be particularly cautious before making any employment related decisions that are unrelated to such complaints.
Two ideas for employers to consider in such event are:
- If action is necessary against the employee for reasons other than the protected activity, how has the employer treated similarly situated employees? Is the employer over-reacting here? Past precedent can be a good indication whether the decision is fair here. Look to any internal policies that the employer may have to ensure that the policies are being applied in the same way.
- While the employee may have made complaints, such employees — but not all — are looking for an ear within the company. If they feel that their concerns are being listened to, it may go a long way to resolving the issues that they may face in ways that are palatable to the company. Maintain an open line of communication with the employee even when its difficult. Treating that employee as a pariah will typically only make matters worse.
Of course, whistleblowing complaints in particular industries such as health care or product safety raise particular issues. Before adverse action is taken against such employees, a thorough analysis of the risks involved (with human resources and an attorney reviewing the matter) will help ensure that the decision being made is done fairly and properly.