On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
Lawsuit Prevention for Employers
HOW TO AVOID CLAIMS OF WORKPLACE RETALIATION
Given the extraordinary legal exposure that employers may confront when terminating employees, it is essential to “look before you leap.” Before discharging any employee, employers are well-advised to take several precautions.
These include identifying, with precision, the most legally-defensible reason for the proposed termination, and informing the “problem” employee of this in writing, with language scrupulously consistent with the workplace rule(s), if any, that the employer contends were violated.
As part of this process, written performance evaluations, warnings and related personnel documents must be scrutinized to be sure they are free of notations that are inconsistent with the proposed action. A glowing (or even mediocre) performance review, for example, could present legal problems where a proposed termination is based on excessive errors or other performance deficiencies.
If inconsistent documents exist, the proposed termination will require additional attention, and may need to be reconsidered.
Last but not least, it is vital to determine whether any management or supervisory employee is aware (from any source) of a recent complaint about working conditions, a work-related injury or any other matter that could make the proposed discharge appear, after the fact, to be retaliatory in nature.
In one case, which aptly illustrates the problem, the employer, a non-profit entity, summoned a difficult employee to the office for a “termination meeting.”
When the employee arrived in the office five minutes later, she entered the office with the following words: “I slipped on a grape peal in the hallway walking over here, and I think I hurt my back.”
With these words, the employee succeeded in vastly complicating the employer’s prospects for prevailing in subsequent litigation related to the planned discharge. This is because, if the employer went forward with the termination after the employee’s unexpected announcement, the employee could claim employment-related retaliation contending, “moments after I announced a work-related injury, my employer fired me.” Labor Code, Section 132(a) makes it unlawful to discriminate against an employee due to a work-related injury.
The same risks would exist if the employee had recently complained of unsafe working conditions, workplace harassment, unfair labor practices or the failure to adhere to any of the hundreds of affirmative requirements imposed on employers by California law.
Because unlawful retaliation claims provide for punitive damages, which juries are free to (and often do) award in the millions of dollars, the existence of a viable retaliation claim vastly increases the value of a retaliation-related claim.
Otherwise stated, the prospect of such a claim has the effect of making a wrongful termination case particularly-attractive to plaintiffs’ lawyers.
It doesn’t matter whether you prefer the adage, “Look before you leap,” or “An ounce of prevention is worth a pound of cure.” It is the same lesson whispered endlessly into the ears of every child approaching a railroad crossing:
“Stop, look and listen.”
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over three decades. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives.
While no one can guarantee a future free of lawsuits, Putnam has compiled a remarkable record of success: Not one employer-client has been sued in 36 years with his system of precautions in place.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. http://www.jaygputnam.com/articles-by-jay-g-putnam/