In a real-life case, worker complains about a supposed safety violation, and shortly afterwards, he’s fired for poor peformance. He sues, claiming retaliation. Read the dramatized version of the case, and see if you can determine who won.
General manager Mike Andrews gathered up his paperwork as he spoke: “So, Jen, you’ll be sure to take care of everything involving Len Barker’s termination?”
“Sure, if that’s the decision you’ve made,” answered Jen Durso, the HR manager. “I would like to raise one issue before we proceed.”
“Go ahead, please,” Mike encouraged her.
“This termination is going to come less than 60 days after Len complained to the state about safety problems in the warehouse,” Jen noted. “That could look fishy.”
“Oh, that,” Mike nodded. “We did a thorough investigation about Len’s complaint. Even had an outside guy come in and look at it. We got a clean bill of health on that – no violation.”
“That’s true enough,” Jen agreed. “Still, it could look as if we’re firing Len because he complained about a safety issue.”
“As I see it,” Mike broke in, “there was no violation and we’re terminating Len clearly for performance, not the complaint.”
When Len was terminated, he filed a lawsuit charging the company acted out of retaliation for his safety-violation complaint. The company noted there was no violation and asked a judge to throw the case out of court. Did the company win?
No. The judge refused the company’s request to throw the case out and allowed it to go to trial – and a likely hefty cash settlement negotiated outside the courtroom.
The judge said the firing indeed looked suspicious, coming on the heels of Len’s complaint about a safety violation. When it looks suspicious, it goes to trial.
What about the fact that Len’s complaint ended up being nothing more than that – a complaint – and the company had committed no violation? Doesn’t matter, the judge explained. The employee doesn’t have to prove the validity of his complaint to show there was retaliation. He complained, and he got fired. Let a jury decide if one and one equal two.
One more thing, the judge noted: Safety complaints involve matters of “public policy” since possible violations affect more than just the single employee. As such, those complaints – even more than others – fall under special legal protections.
Important supporting docs
When an employee complains about something as serious as safety and then gets fired, your managers have to be certain to have the right documentation. There’s not much you can do to stop an employee who’s bent on suing, but you can prepare a good defense.
Cite: Kohrt v. MidAmerican Energy Co.