May 8, 2020
It is undeniable – juries do not like employers who retaliate. It is not uncommon to see huge verdicts result when a jury finds that an employer has retaliated against an employee. A retaliation action is very serious, as it can include not only compensatory damages, but also damages for emotional distress and even punitive damages.
Retaliation can consist of many things, but a retaliation claim against an employer can surface when an employee files a complaint with a government agency or when an employee complains internally of discrimination, harassment or some other violation of the Fair Employment and Housing Act, the Labor Code, or some other employment law. In turn, then, an employer responds with some adverse action against that employee, such as a demotion, a cut in pay or hours, a transfer or termination.
For example, if an employee complains that wages or commissions that he has not yet been paid are owed to him, and then the employer shortly thereafter either terminates the employee or takes some other type of adverse employment action against the employee, this could constitute retaliation by the employer and could therefore be actionable. Whether it actually does constitute retaliation depends on the employer’s motive. An employer would likely argue that the adverse action against the employee would have taken place anyway, regardless of the employee’s complaint for unpaid wages or commissions. However, a jury looks to many factors to determine an employer’s motive. Below is a list of some of those factors.
Proper Documentation
As an employer, you should document EVERYTHING! Scrupulously documenting performance reviews, making company policies available to all employees, documenting that a copy of the company policies have been given to your employees, making sure you CAREFULLY follow your own written policies, documenting how your company has handled a similar situation in the past, and having a procedure for firing an employee that consists of allowing someone in a higher position of power or someone from a different department (just as the Human Resources Department) to make the final termination (or other disciplinary action) decision, are all things that will help you defend against a retaliation claim in the event one is filed against you.
Be Consistent With Your Employees
For example, if you have a company policy that allows an employee to moonlight, but then state that the complaining employee’s moonlighting was one of the reasons for his/her discharge, this will not be looked upon favorably by a jury. Make sure you scrupulously adhere to your company’s policies and past practices in your treatment of the complaining employee.
Timing Is Important
Be careful regarding when you take adverse action, even if justified, against an employee who has complained. The more time that has passed between the employee’s complaint and your adverse action, the less likely a jury will be able to associate the adverse action with the employee’s complaint.
Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net). Please visit our website at eskridge.hv-dev.com.
This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.