Human Resources News & Insights

Who won this this case? He says he got fired for complaining about safety

In this real-life legal case, an ex-employee sues, claiming he was fired for complaining about safety — but his complaint proved to be false. Who won?

The facts: 
Citing an employee’s low performance and lack of cooperation, a supervisor fired the employee. The firing came about 60 days after the employee filed a complaint with government officials stating that the company engaged in practices that presented a health and safety hazard to employees. An investigation showed the complaint to be without validity; there were no safety violations. The employee still filed a lawsuit claiming that the firing was done so because of the safety complaint.

The employer said:
The decision to fire the employee was based strictly on performance and behavior. Besides, there could be no retaliation claim because the complaint was without merit and didn’t result in any penalities for the employer.

Who won the case? 

Answer: The employee. A judge refused the employer’s request to dismiss the case and sent it to trial, meaning a likely costly settlement for the employer or hefty legal fees.

Why:

The judge said the firing indeed looked suspicious, coming on the heels of a complaint about a safety violation. And when it looks suspicious, it goes to trial.

What about the fact that the 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.

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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  • R. B.

    I wonder if the employee had a history of poor performance that was documented prior to the termination and if not, would that have made a difference?

    I had to terminate an employee who filed an EEOC complaint alleging she was not being paid equally to her male counterparts solely because she was female. Her allegation was completely false, but she was in a formal progressive discipline program due to well-documented poor performance and, since she hadn’t been meeting the required goals and performance standards set out in the program, was due to be terminated the Monday after the Friday she filed the complaint. We delayed the termination for a week, but then went forward with it since the events were unrelated. She immediately amended the complaint to include retaliatory termination. The EEOC reviewed our documentation – which, as I said, predated her complaint – and did not question the termination. They also determined her original complaint was unfounded. I’m sure this would have turned out much differently had we not been able to prove her performance issues existed long before her complaint. But I’m wondering, did we get lucky, having an EEOC investigator who was reasonable, or did the fact that we did treat her fairly, documented her performance issues and laid out an improvement plan that she wasn’t living up to make the difference?

  • Sandra Shea

    Following the complaint of a safety issue, the employee should have been assured that his concern would be addressed immediately. At the point that the safety issue was deemed a “non-issue”, it should have been conveyed to that employee in writing thanking him/her for their concern and placed in his/her file. It is dangerous to make a termination decision following any type of grievence complaint.

  • Charlotte

    Why is it HR and Managers are so busy trying to cover their butts from potential lawsuites?? I think we are wasting so much time antisipating a backfire we forget to do our jobs. Its sad that this is the way we now have to address every little situation and every pissy employee. I am the only HR in a company of 300… we have such a large turn over (we are in the oil & gas business)… that everytime I speak to an employee I write our convestion down in a book (a waste of my time, but usefull when you need it), eveytime an employee barks I jump to try to ease the issue. I think we are always on the defensive we forget the bottom line and tend to leave our jobs on the back burner. I hate this “you owe me”. “its your fault”, “i’m getting a lawyer” attitude of today’s society. Employee have stopped taking responsibilty for their actions and looking for the easy buck.

  • Deborah

    I think the judge was absolutely right in his decision to send this case to trial. During a trial both the employee and the employer are given an opportunity to present their case. If the employer terminatated the employee for poor performance, poor attendance or any other reason they would (should) have documentation of it and those records would be considered during a trial. If the employee has no record of poor performance, poor attendance or any other infraction that could result in termination then the court has to consider this too. Whether or not the complaint made by the employee resulted in a legitimate safety violation is irrelevant. What is relevant is that firing an employee for making a complaint about something they believe to be unsafe sends a clear message discouraging other employees from making safety complaints (with merit) in the future and this is how disasters happen!

  • I have to say that I agree with pretty much all of the points above. As a safety program services manager for over 1000 companies, there is non-stop emphasis on management committment to safety, implementing job safety analysis, proper documentation of training/safety performance and of course, actual training/direct intervention to reduce losses.
    Ensuring you and your supervisors properly document your efforts consistently over time will take much of the ambiguity and subjectivity out of decisions to let employees go for poor safety performance as well as provide the basis for employers to defend themselves in these instances. The use of leading indicators to identify risk and to address them BEFORE they become potential issues…..like perceived “safety violations” is an import part of your on-going risk management efforts – Credo: Spend Time Now to Save More Time Later.

  • Jim Rittgers, SPHR

    Deborah — Well said. You sound like a knowledgeable HR professional.

    Charlotte — Have you considered trying a different line of work or a different employer? As the only HR person in your organization, and based on your “large turn over” (and other frustrations you expressed), I suspect that the HR function (or you) are not taken seriously.

  • Patrick

    While I do agree with the timing of the termination shortly after the complaint can bring speculation into play I am in agreement with most of the comments. I have personally seen employees that over time have gotten themselves into problems at work then use a complaint or accident report to get management to back off. R.B made an excellent case for documentation, before the complaint, which was crucial to the outcome. It validated that the employee’s performance problems had been on going and they had been receiving progressive discipline. I will use his comments during an up coming documentation training planned for our managers.
    I terminated an employee for attendance infractions after they used an at work accident to protect them. We afforded the employee with “reasonable accommodations” and allowed flex time for Dr. appointments. But they continued to increase attendance points for reporting to work late or leaving sick. A key point made by our legal support and the advice of the WC insurance provider was, “An accident or complaint doesn’t protect an employee from progressive discipline up to termination if they are in violation of policies.” The employee was terminated, an EEOC complaint was dropped before trial due to documentation and the injured employee continued to get medical treatment until they were fully released to work. (For their NEXT job)