Hidden Threat of Retaliatory ex-Employees

Post-discharge actions that you see as routine, can, in fact, form the basis for a retaliation claim.

Although many employees are employed “at will,” the risk of facing a retaliation lawsuit does not end once the relationship is terminated by either party.  The past 15 years have shown a noticeable increase in post-employment retaliation cases where terminated employees raise allegations despite their “at-will” status and successfully break down the fine line between factual statements and derogatory comments. Retaliation is alive and well in the post-employment context ranging from refusal to rehire a qualified candidate, to wrongful terminations, and on to negative references that cost a former employee a new opportunity.

What steps can be taken to minimize or avoid the risk of post-employment retaliation claims?

You have to mitigate issues at the beginning of the employment relationship.  ­ Having consistent and lawful practices from day one will protect you from litigious employees when things just don’t work out.

Hiring and Supervision:

• Use a standard job application which collects a sufficient amount of relevant information to ensure that the applicant meets the required qualifications of the position.
• Consider conducting position appropriate pre-employment background checks after extending job offers (as a contingency for employment) as part of your standard hiring practices. Here’s where you can appropriately seek references and criminal background checks to ensure a candidate’s suitability.
• Use behavioral based interviewing techniques that utilize active listening and open-ended questioning skills to identify any red flags, and use them consistently.
• Accurately and fairy evaluate employees’ conduct and performance and document. Fact-based performance evaluations are an important tool to accurately assess and communicate an employee’s performance.
• Implement a progressive discipline program to ensure consistency. This structured process allows for feedback to an employee so that the performance problem can be corrected, and if it can’t, deal with more corrective action accordingly.
• Consistently execute policies to minimize any claims of disparate or discriminatory treatment. In the case of discharging an employee, this requires reviewing previous treatment of similarly situated employees, who have committed the same infraction but may belong to different genders, ages, ethnicities, disability categories, etc…  Ensure that no employee was treated more favorably when the infraction is identical.
• Be consistent and limit the information provided to prospective employers of past employees. Only providing a former employee’s title and dates of employment is the best way to protect yourself from post-employment liability when it comes to reference checks.   Exceptions in some states exist that require that acts of violence to be shared to prospective employers.  Make it a point to become familiar with your state and local laws on reference checks.
• Document any termination with a business justification and be able to provide evidence to support that decision. At will or not, not only does a legitimate business reason for termination need to be clearly outlined, but the rationale needs to withstand legal scrutiny. An employee’s personnel file and other documentation should be able to support the basis for termination.

Establish Policies and Procedures:

• The Employee Handbook is the best tool for employer and employee in that it plainly states rules, regulations, and procedures which both protect the employer and assist employees. In addition, state and local legal requirements are captured as well as the employer’s commitment to equal opportunity. Be sure to update the handbook to ensure policies and practices are consistent with ever-changing employment laws.
• Establish a policy against retaliation which clearly spells out exactly what retaliation is, and that it will not be tolerated from any managers or other employees. The policy should also inform employees of the steps to take if they feel they are being retaliated against.
• Due to the increasing complexity regarding when an employee may be out of work for reasons that may be covered under the Americans with Disabilities Act (ADA) or the Family and Medical Leave Act (FMLA), employers must have clear policies about what can be covered and what employees must do to give notice of the need for leave.

Crystal ball lacking, the employment cycle of any employee requires consistent hiring practices, established performance management tools, and proper separation documentation.  Let fairness be your guide when considering any disciplinary decisions. Coupled with documentation, careful analysis, and forethought, the threat of post-employment litigation can be minimized by establishing human resources practices that employers and managers are trained in and capable of executing.