Revenge May Be Sweet, But Can Cost You Big Bucks
Posted on 18-Aug-08 by The Timekeeper
I’ve written before about how retaliating against employees is often counterproductive, and can be not only expensive but also illegal.
Now, of out California, comes news of just how expensive retalitation can be:
From the Sacramento Superior Court we have the case of Mootz v. Department of Corrections and Rehabilitation, where the jury awarded the employee $800,000 for emotional distress, plus $442,400 attorney fees and $60,123 court costs. From the L.A. Superior Court there’s the case of Boren v. Global Medical Mobile Diagnostics, Inc. in which two employees received a combined total of $840,400.
The two cases have something in common (besides being really expensive for the employer). In both cases, the employees had complained about discrimination, harassment or made other employment claims — and it was found their claims were without merit. So why did the employees still get huge awards?
Because the employers were found to have retaliated against the employees for making those complaints!
“Protected Activity” Means It’s… Well… Protected
See, the thing is, complaining about being harassed or alerting the employer to wage and hour violations are examples of what’s called a “protected activity.” And employers are forbidden from taking adverse employment action against employees who engage in protected activities.
Even if it turns out the employee’s complaints are without merit. It’s the act of making the complaint that’s protected. It makes no difference if the complaint is justified or not.
But you know as well as I do that the employees who engage in baseless complaining are also often poor-performing employees. What do you do if you need to discipline or terminate an employee who’s filed a complaint against you? How do you protect yourself from big jury awards such as those I just mentioned?
Well, in the first place, the most obvious thing is “don’t retaliate.” I mean, duh, folks. I don’t care how annoyed you are because that employee accused you of not paying them overtime, or of discriminating against them because of their age or whatever. You’ve just got to suck it up and deal with it like a grownup.
The act of complaining is a protected activity, and you can’t “get revenge” against them for it — not without risking a potentially HUGE penalty. Let’s face it, juries don’t like employers who take out their frustrations on their employees.
And the burden of proof in these kinds of cases seems really low to me. Pretty much all the employee has to do is show they complained, and then shortly after their complaint something bad happened to them at work. For instance, maybe they didn’t get the raise or promotion they thought they deserved, or they were disciplined or reprimanded, or they were suspended from work or they got fired.
But what if the employee really had done something worthy of disciplinary action?
Protect Yourself
Well, once they’ve proven the “adverse employement action” happened right after they complained, the ball’s in your court. You still have a chance to avoid a penalty for retaliation if you provide proof there was a legitimate reason for your action that had nothing to do with the employee’s act of complaining.
But beware — just because you can dredge up some reason, this doesn’t necessarily get you off the hook. There’s something called “pretext,” and it can trip you up if you’re not careful. If the employee can convince the jury the reason you gave for your action is actually pretext — a sham, a false front (in other words, a lie) — and the real reason for the adverse action was, in fact, to retaliate for their complaint… well, you can still find yourself staring down both barrels of a big cash award to the employee.
And the secret to proving your reason for the adverse action is legit, and not just pretext? Documentation! Consistent, regular documentation, applied to all employees (not only the one who complained, and not just starting after the complaint was filed). Over at the GPH Lawyers blog, they’ve got a handy set of tips to help you make sure your bases are covered. Check ‘em out. And a hat-tip to GPH Lawyers for bringing the issue to our attention!
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