17
May

Avoid the Incendiary, Expensive Costs of a Retaliatory Termination

Claims for retaliatory termination are among the most explosive and dangerous in employment law. Such terminations are often driven by emotion and knee-jerk reactions. Managers may feel personally offended that an employee has made a whistleblower claim or lodged allegations of discrimination or harassment. Companies can “buy” a lawsuit for an underlying claim that turns out not to be valid because of how they have treated the messenger. Such claims are difficult to fight and open employers to punitive damages.

Retaliatory firing happens when emotion takes over, when firing seems to solve a problem in the short term, and employers fail to look at long-term consequences. We are predisposed to believe we are in the right. It is vital to have counsel involved every step of the way once an employee has filed a claim for discrimination or harassment or lodged a whistleblower claim. Employees cannot be faulted for filing a claim that is unfounded; this often leads to anger and retaliation. Employees are responsible, however, if their complaint is knowingly false or lodged maliciously. But initially, this determination is very difficult to make.

These are some of the most expensive cases in the labor and employment sphere, and the ones most likely to inflame jurors, who may imagine themselves losing their own jobs. Juries also intuit and are bothered by the chilling effect such terminations have on others who may have a rightful claim against their employer. Terminated employees can be awarded lost pay, pain and suffering, punitive damages, and attorneys fees and costs. There is also significant damage to a company’s reputation, even if the case doesn’t go to trial and ends in a settlement. There is also the chance the Equal Employment Opportunity Commission (EEOC) and California Department of Fair Employment and Housing may become involved.

Don’t risk a verdict or settlement in the hundreds of thousands or even millions of dollars. Seek counsel the moment a discrimination complaint or whistleblower complaint arises. Tread carefully if you are tempted to reassign an employee or cut his or her hours or responsibilities. Resist trying to “restructure” a department to lay off someone who has filed a complaint. Be careful of job reviews that suddenly show a decline in performance. These can all be steps to a costly claim for retaliation, even though the company has stopped short of firing an employee.