July 18, 2019

Won’t You Don’t Know CAN Hurt You (and the Company)

Aesop’s fable of “The Monkey and the Cat” might be a good lesson learned. Don’t let others use you to get what they want. Also, it serves as a good example of why HR professionals are always asking for documentation.  In a recent case, Oregon’s highest court found an employer could be liable for unlawful retaliation. Why? Because  the manager fired an employee based on feedback from the employee’s supervisors without conducting an independent investigation.  The court found the supervisors’ recommendation for discharge was biased and based on a retaliatory motive.

The employee had recently complained about what he perceived to be some safety violations. A coworker reported he overheard the plaintiff say he was going to file a complaint with the state’s safety and health administration. The employee denied this when questioned.  But he did later file that complaint. When a promotional opportunity came up, his supervisor told him he would not get it “because of the past.”  When he applied anyway, guess what. He did not get the promotion. Then, when he was fired, he filed a claim alleging he was not promoted and was discharged in retaliation for expressing his concerns about safety and filing a complaint.  The court found in favor of the employee-plaintiff. “[A]s long as a plaintiff can show that a biased supervisor influenced or was involved in the adverse employment decision, the plaintiff may establish the employer’s unlawful bias based on ‘cat’s paw’ theory.”

Lessons learned?

  1. Before you take an adverse employment action (issuing corrective action, not promoting, discharging), consider any recent events. Has the employee done, asked for, or said anything that could be perceived as a basis for retaliation? For example, has the employee recently asked for FMLA leave, filed a workers’ compensation claim, told you she was pregnant, or expressed concern about wages or harassment? If so, it does not mean you do not proceed but be clear about your motive.
  2. If you are a manger or supervisor and HR asks you for documentation, don’t be insulted or frustrated. Be prepared; it protects you and the company.
  3. If you are an HR administrator, be sure to ask for documentation. Doing so exercises due diligence in protecting the employee, the manager and the company.