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Firing worker who sues you is risky
By Dr. Lynne Curry

At an increasing rate, employees are suing their employers while still employed. Why? We now experience our first significant recession since the early 1980s. Many employees, accustomed to being able to quit jobs and find another when they wanted to, feel trapped in jobs.Further, not only has the Internet information explosion given employees immediate, private access to information about their rights, laws passed in the last two decades give employees new rights on which to base lawsuits. These include the Lily Ledbetter Act expanding the equal-pay law, the Civil Rights Restoration Act, the Americans With Disabilities Act of 1990 recently expanded in 2008, the Family and Medical Leave Act, the WARN Act providing layoff protection for those in large companies, and the Older Workers Benefit Protection Act.

Additionally, legal experts expect the Obama administration to vigorously enforce long-standing laws such as Title VII and the Equal Employment Opportunity Act.

According to former attorney-turned-HR-consultant Andy Brown: "These days, almost everyone knows someone who's sued an employer and won something. They know someone who says they won $20K. Even though they might not have a good case, they think they, too, have a shot at some potentially 'easy money.' They get angry at work, decide their employer 'can't do that to me' and look for a lawyer."

As confirmation of this trend, the Department of Labor reports a 30 percent increase in wage-and-hour lawsuits since early 2000, with many of the recent claims filed by current employees.

One might think an employer sued by a current employee should immediately show this employee the door. Usually this proves the easy but wrong answer and lands an employer in legal quicksand. Although the employee might have had a baseless initial claim, immediately terminating the worker hands the employee a clear-cut case of retaliation for the employee's exercise of a protected right. These protected rights include the right to privacy, to file workers' compensation claims, to pursue wage-and-hour claims, to information that concerns them, to protest and seek investigation of unsafe working conditions and to protest discrimination. The employer who says "you're fired" snatches defeat from the jaws of potential victory.

According to labor attorney Mark Downey: "The recent U.S. Supreme Court decision in Crawford vs. Metropolitan Government of Nashville, clarified that the anti-retaliation provisions of Title VII -- and presumably other federal employment laws -- are to be interpreted broadly by the courts, continuing a trend that started with the court's decision in Burlington Northern vs. White. Even individuals who don't personally complain about employer illegal activities fall within the protections of the anti-retaliation laws."

Downey adds that the 2006 U.S. Supreme Court Burlington Northern case was the first to lower the threshold for what constitutes retaliation and contributed to an increasing number of claims made by current employees. After this ruling, employees no longer need to be terminated before they file a retaliation charge. Says Downey: "Employees can now allege retaliation if the employers' action 'well might have dissuaded a reasonable worker from making a complaint.' Consequently, almost any action that an employer takes with regard to an employee that qualifies as a Title VII protected action may now be challenged by claiming retaliation."

No surprise that 34 percent of the charges filed with the federal Equal Employment Opportunity Commission last year involved retaliation, and that retaliation claims have increased 80 percent in the last decade.

What can the employer do short of firing the about-to-sue employee? Brown suggests immediately investigating the potential claim so that you can learn the issues. "Generally, you'll do best by hiring a third-party investigator as this individual can get employees to talk more freely and the third party's conclusion will be perceived as more neutral."

Even though you might think your company exists under a microscope because the potentially suing employee has access to other employees, you need to keep your cool. Make sure that any employees who participate in protected activities -- make or otherwise participate in a complaint -- have an equal opportunity to voice complaints. Because you want to keep morale and thus productivity high, treat both the filing employee and others, particularly those in regular contact with the suing employee, fairly and evenly in all job matters.

Finally, if it becomes untenable to keep the suing employee on the premises, consider paid administrative leave. Although expensive, it beats a retaliation claim.

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Lynne Curry is a local management trainer, consultant and syndicated columnist. Her advice and opinion column appears every other Monday. Questions for her column may be faxed to her at 258-2157 or mailed to her c/o Anchorage Daily News, P.O. Box 149001, Anchorage 99514-9001. Her e-mail is lynne@thegrowthcompany.com.

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