Retaliation: “I know it when I see it!” But do you really?

Retaliation or, at least, the perception of retaliation is on the rise.

Has a manager approached you saying an employee should be fired because that employee is abusing COVID leave? Has an employee claimed he feels he received a poor performance review because he reported his coworker for not wearing a mask?

We are getting questions from clients who are hearing their employees feel retaliated against for voicing a concern about a COVID-related issue. Let’s not forget the perception of retaliation is a long-standing issue.

Thus, it is important to know what is legally actionable retaliation and what you can do to set your company up to defend a claim. Retaliation is a stand-alone “claim” that usually co-exists with every employment law. It is defined as an employer taking adverse action against an employee because that employee engaged in protected activity.

Let’s take a look at some examples of perceived or actual retaliation.

“I feel like I was unfairly disciplined because I complained that…

• … my coworker makes more than me.” (equal pay and other wage issues)
• … my employer is not following COVID precautions.” (COVID safety)
• … I am being harassed.” (harassment/hostile work environment)
• … white employees receive favorable treatment.” (discrimination)
• … I discussed politics on my social media account.” (free speech)
• … I asked for an accommodation for my disability.” (disability)

Many people look for any reason other than their own conduct to blame for a disciplinary action, thus the perception of retaliation is everywhere! You should know how a court would analyze whether your actions constitute retaliation.

What does a court consider retaliation?

You have an employee whose attendance and performance is horrific. The employee calls you on Monday and says he has been exposed to COVID by his girlfriend. You begrudgingly give him two weeks of sick leave and ask him to get tested. When he is finally negative and ready to come back to work, you tell him to show up for his next scheduled shift at 8:00 am. The employee shows up at 8:17 am. LATE AGAIN! The manager consults with you and terminates the employee. The employee sues you for retaliation. He believes he was terminated because he took protected leave.

Here are reasons a court could infer you engaged in retaliation.

1. Suspicious Timing. A court will consider how soon after the protected activity the employee experienced an adverse action. In the example, the employee was terminated after he took the leave, which could appear retaliatory. However, when you gave him the leave he was entitled to and then upon return to work, he is late, the decision to terminate appears to be based on his tardiness and your defense is stronger. Documentation always helps! If you had emails to him or between managers that noted his attendance as an issue written before he took the COVID leave, then your defense is even stronger!
2. Deviating from Policy. If you have treated all similarly situated employees in the same manner, then your defense will be strong! If you terminate every employee who is late 6 times in a 6-month period, and you follow policy on this employee too, the employee would have a hard time claiming your decision was motivated by his protected activity rather than simply following policy.
3. Changing Explanations. Courts also look at whether the employer’s stated reason for terminating the employee has remained consistent. As a rule of thumb, be truthful with employees about why they are facing a disciplinary action. (Everyone remembers the truth!) Keep it real, even if it’s hard!

Remember that it really comes down to context. The above factors are just a few examples of what a federal agency, court, or jury may consider. Each situation should be considered on a case-by-case basis. Look at the employee’s history, your documentation as the employer, and what you have done with other employees in the workforce. You may run into situations where employees feel they are “untouchable” because they reported a workplace concern. Fear not! Everyone must follow the rules and we can help you explain and defend your decisions!

Never hesitate to reach out to someone on our Labor & Employment team to talk through your concerns about disciplining or terminating an employee who has recently engaged in some protected activity, whether founded or not. We can help you develop a strategy for what to do. In these cases, “two heads are (oftentimes) better than one!”

Take care and stay safe!