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Retaliatory employment terminations are fast becoming the terminations creating the greatest legal exposures for employers with past and future lost wages or income, health insurance, retirement benefits, and pain and suffering or general damages.
In general, retaliatory employment terminations arise when employers fire an employee after that employee has engaged in legally protected activity. Some of the more common legally protected activities forming the basis for retaliatory employment terminations are filing a workers’ compensation claim, reporting sexual or other forms of illegal harassment, reporting sexual, race or other forms of illegal discrimination, raising issues about the failure to pay overtime along with many other legally protected activity.
In order to prove a prima facie case, an employee is required to prove he or she engaged in a legally protected activity, suffered an adverse employment action, and that there is a causal connection between the first two. Temporal proximity is sufficient to establish a prima facie case. In other words, if the adverse employment action occurs within close time to the employee engaging in the legally protected activity, a prima facie case is established.
The burden then shifts to the employer to produce evidence of a non-retaliatory legitimate business reason for the adverse employment action. If the employer fulfills this burden, the presumption of retaliation disappears and the employee is required to produce substantial evidence that the reason(s) offered by the employer is false. If the employee fails to fulfill this requirement, the case will be dismissed.
Adverse employment action is not limited to termination of employment, but includes demotions, transfers, reduction in pay, elimination of bonuses, modifications of commission plans, and other employment actions too long to list for this article.
The damages employees suffer in these types of claims include lost wages, past and future, lost health insurance, retirement and other benefits as well as pain and suffering known as general damages. Employers are advised to always document well the reasons for the personnel actions it implements even when the employee is at will.
Any time employers are concerned that their termination of an employee may give rise to a retaliatory employment termination claim, consulting with their labor lawyer is always advisable.