Human Resources News & Insights

Who won this case: Fired over complaining about safety?

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?

The decision

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.

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  • Jane

    Great, now disgruntled employees can “make up” safety complaints and win against a company that has established no safety violation took place. Wish these judges worked in the real world.

  • Patrick

    Interesting case. I would have liked to have heard more about the background of the termination before I would have came to the same decision as the judge. Was there a history of poor performance documented? Did the employee recieve written warning noting the behavior or performance improvement required? Was discipline enforced consistently? If the company could prove all of this then I would think the court system would have seen this different. Similar story, I had to release an employee that was on WC restrictions (which we accommodated) for an at work injury. They had poor attendance overall but after the accident we saw this employee start reporting to work a few minutes late, then some absences added up to trigger warnings in a “no fault points system”. After seeking legal guidance the lawyer said that being on WC or being involved in an accident at work did not supersede an employees’ responsibility to follow company policy. If you have dealt with attendance issues consistently and she has been warned then you do not have show favoritism to this employee. The lawyer cautioned that if we delay then we have not been consistent in attendance discipline and it might taint any cases going forward that is reviewed. She was termed for attendance and within a week her lawyer writes us a threatening letter. We answered that it was handled in a consistent manner with our attendance policy. I provided her lawyer with a copy of the employees’ attendance record, the cautions, warnings in her file and her last suspension that spelled it all out clear if her points continued (all were signed by the employee). It quietly went away.

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