In a routine layoff when a company needs to downsize, one would think that the employer has complete control over when and if the layoff occurs. But savvy employees are using some creative methods to keep themselves employed. If an employee thinks that a layoff is imminent, he or she may complain to management about a safety issue, a violation of company policy or even sexual harassment. Once the complaint is made, the employer may have to think twice about firing the employee to avoid a false claim of retaliation. In a wrongful termination claim based on retaliation, the employee’s complaint does not even have to be valid. For example, if an investigation reveals that there had been no sexual harassment, the employee could still argue that the layoff was done in retaliation for making the charge.
Employers can take back control of the firing process in several ways. First, keep information regarding a layoff limited to only those managers that have a need to know. If a rumor surfaces, the clever employee may immediately spring into action. Second, if a complaint is made, make sure a complete investigation occurs. Otherwise, the employer made be viewed as ignoring the complaint, which may bolster the employee’s claim. Third, if the termination is based on poor performance or violation of company policy, make sure the employee’s file contains documentation of the bad conduct and a history of discipline. The paper trail will support the employer’s termination decision and can be used to rebut the claim of retaliation. Fourth, offer departing employees a modest severance package, in exchange for a full release of the employee’s potential claims. Fifth, wait a period of time after the complaint has been made before firing the employee. If the termination occurs several months after the complaint is made, it will be easier for the employer to argue that the layoff had nothing to do with the complaint and instead, was based on a legitimate business decision.
As always, employers should consult with a competent employment attorney to make sure the firing process is handled properly.
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