Caution: Some Employee Conduct is Protected

Fire an employee for the wrong reason — or in the wrong situation — and the employee could claim retaliation and file a lawsuit.

Several activities by employees are off-limits to retaliatory actions such as firing or disciplinary action.  Any retaliation by the employer could spell potential legal trouble, such as a wrongful termination lawsuit.

Here are three areas of protected employee conduct:

1. Voicing Concerns about Workplace Issues

Understandably, most employers want their employees to feel free to raise workplace concerns.  Raising issues regarding health, safety or other legal violations is a protected action.  When the concern involves a person in authority, the employee is protected whether they tell someone within the company or an outside labor organization.

If an investigation proves the complaint was grounded in fact, the employer should take immediate action to address the complaint.  But even if a complaint is later proven unfounded, the employee is still protected by the law.  The employer should be careful to deal with all the emotional aftershocks of both the accused and the accuser, making sure the accuser does not experience any retaliation.

2. Making Certain Choices in their Personal Lives

Information regarding the choices an employee makes regarding their personal lives cannot generally be used against them.  For example, if an employee shares that he or she often drinks alcohol during his or her time off, this information is protected.  Other actions which could be considered protected include taking time off to tend to a sick family member, or collecting Workers’ Compensation because of an on-the-job accident in a previous job.

3. Cooperating with Investigations

Complaints about an employer can lead to investigations, and often employees are asked to participate in the proceedings.  Whether the investigation is conducted internally or externally, those asked to cooperate are protected from employer retaliation.  Such proceedings usually entail answering questions, submitting statements or offering evidence.  If an investigation leads to a trial, the employee could be called upon as a witness.  Any retaliation stemming from cooperation with such an investigation would be illegal.

After an employee has participated in any of the above-mentioned protected activities, an employer should make an effort to protect the employee from retaliatory action.

Obvious retaliatory actions include firing or demoting an employee.  However, other actions, such as reducing benefits, transferring the employee, changing their work hours or negative job evaluations, could also be considered forms of retaliation.

Of course, there are situations where an employee who participates in one of the protected activities described above may require discipline for a subsequent and unrelated action.

The employer must make sure there is no connection between the disciplinary action and the protected action.  Immediately address any misconduct.  Strictly follow workplace policies in all disciplinary actions.

Reduce Risks

You can reduce the potential for unlawful termination actions by:

  • Making sure employment policies spell out complaint procedures and prohibitions on retaliation.
  • Keeping employees aware of complaint procedures.
  • Training supervisors about anti-retaliation policies.
  • Continuing communication with employees who have engaged in protected activities.
  • Keeping complete written accounts of any protected activities in which any employees have been engaged.

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