Rretaliation Law: Resignation v Termination – which option is better for you?
One of the common mistakes that employees who are retaliated and how are on a verge of being fired make is resigning instead of letting that employer terminate them for a retaliatory reasons. By resigning, the employee who quits his job seriously hurts or destroys his retaliation claim, by giving the employer a strong argument that no adverse action took place, since the employee chose to resign on his own.
Consider the following, notuncommon situation – after complaining about discrimination or harassment at workplace, an employee is being suspended due to false allegations of theft, forgery, misonduct, insubordination, etc… An investigation takes place and after the investigation resumes, the suspended employee is invited to a meeting with his boss and his human resources manager. Immediately prior to that meeting, an employee hears a rumor from a fellow co-worker or even a manager that he is going to be fired. This is nothing more than just a rumor and the employee hasn’t received anything in writing. At that moment and prior to the scheduled meeting with his managment, the employee submits his resignation based on the rumors of an impeding termination. Later, not only does the employer deny that they planned to terminate the employee, but even the person who told the rumors denies ever telling those rumors. Further, the employer argues that the employee should know better than trust rumors instead of attending the scheduled meeting and finding out about his employment status directly from the employer.
The only way to have a viable retaliation claim under the circumstances, considering that all the other necessarily elements are present, is to somehow establish through documents or through depositions that the employer made the decision to terminate an employee prior to that meeting in question, which is inherenty challenging, because if the employer decides to hide these crticial documents or lie at the deposition, proving that the employer’s version of the events is false is an uphill battle.
Registered Nurses in Sacramento: Tips on Handling Suspension for Violence or Misconduct
Being suspended due to allegations of violence of other kinds of misconduct is a stressful time for any nurse, especially the nurse who has been employed at the same hospital or other medical facility for a long time and who fears that his/her job may be in jeopardy. This is especially frustrating time for those nurses who are false accused of something that they haven’t done, or even worse – if their co-workers conspired against them to make it look like they did something wrong. No matter what the reasons are for your situation, the tips below should be helpful if in guiding you through this time:
1. Fully cooperate with the investigation process. If you haven’t done anything wrong, you should have nothing to hide and you should act like an open book. If a meeting schedule to get your side of the story, be candid and upfront with the investigator. If you don’t feel comfortable attending an investigatory interview by yourself and you feel that you might be framed for transfer or even discharge, consider having an attorney present with you durinf the meeting. Most hospitals will have no reason to object to your attorney’s present during your interview.
2. Remain polite and curteous at all times with all of your co-workers. This is especially true when you are accused for verbal or actual violence. You should show with your calm and pleasant behavior toward everything that the accusations against you can’t possible be true. When you let your frustration with false accusations translate into causing further conflict or voicing your disagreement with the situation in violent ways, you are only hurting yourself by making it look like you are indeed a person who should be kept away from the medical facility.
3. Remember – your employer has a duty to investigate all complaints of misconduct. Whether the management belives you or the other side is irrelevant. They still have to investigate and issue findings. This is especially ture with regard to sexual harassment accusations, where the law (Fair Employment and Housing Act) mandates that the employer investigate, and take prompt steps to prevent and/or remedy the harassment. This means that normally, in the absence of some kind of additional conflict between you and the employer, you should not take this kind of investigation a personal attack against you, but as a matter of your employer’s compliance with what’s legally required of them.
The Downsides of Posting Negative Information about Your Employer on Facebook
Many employees who dislike the workplace and their management are tempted to voice their opinions about their workplace online. This is especially true about employees who quit or who are terminated, as the latter are particularly tempted to spread the word about how evil the employer they stopped working for is.
Beyond the personal satisfaction that sharing your feelings in the public online forum, such as Facebook, may bring, consider the serious downside of doing this to your present and future employment. Whether what you say about your present or former employer is true or not, it creates a certain perception about you in the eyes of your future employers. Whether what you said on Facebook or elsewhere about a certain workplace is true or not, you will come across as some kind of complainer and backstabber. If there is a chance that a potential employer will see your posting on Facebook or else where on the internet, it’s highly likely that they will think twice before hiring you, or – if they find out about this after you have been hired – about keeping you. The employer will likely not tell you why they didn’t hire or fire you, and even though this kind of action might be illegal, proving it will be very difficult, if at all possible.
So, before you post anything negative about your employer online, ask yourself – is it worth it? How likely is saying bad things about your employer online may hurt you? Are there any better options of expressing your concerns? For instance, you may consider complaining to a government agency about any violations that you found to be taking place at a company. You usually have the option of submitting complaints about discrimination, harassment, unsafe working conditions, etc., anonymously, although there are certain downsides to making your complaints anonymous.
Preparing for EEOC Mediation
EEOC commonly refers cases to mediation, if both parties (the employer and the aggrieved employee, who filed EEOC charge) agrees to have their case mediated. My first rule of thumb about EEOC mediations is this: if your present or former employer agrees to a mediation through EEOC, you should always agree to participate as well, taking advantage of the opportunity to do something that will or would have been done a while after you a file a lawsuit anyway, because most cases are referred by court to some kind of mandatory dispute resolution program, and most typically – mediation.
Mediation of an employment or a wrongful termination case is a wonderful tool that allows parties to shortcut a lot of the effort and expense in litigating and see if the parties can come to an agreement or a compromise outside of court, settling the case early. A private mediation can easily cost $3,000 per party or more, while EEOC is free or significantly cheaper. Despite that, after having 7 EEOC mediations (5 of which resulted in a settlement), my impression of the EEOC mediators is very good. They seem to be as eager or more eager than private mediators to work hard on a case, perhaps in part because many of them are trying to build their own mediation practice and they try extra hard to prove themselves as persistent and diligent.
Surely not all EEOC mediations are successful, but even if your mediation doesn’t lead to a settlement, it will still provide significant benefits: first, you have nothing to lose if you don’t pay for that mediation; secondly, you get to express and learn the employer’s position without filing lawsuit or engaging in time consuming written discovery. Lastly, you get to learn where the employer is, at least at the time of the mediation as far as their willingness to pay out a settlement goes.
It is well worth having an experienced employment attorney participate in the mediation for several reasons. First, the employer will likely take the process more seriously. If they see an attorney on the other side, they will know that the there a real likelihood of having a lawsuit filed against them if the mediation isn’t successful. Secondly, your attorney will be able to advise you whether whatever is offered to you by the employer is fair and reasonable, to make sure that you make an informed decision. Lastly, the attorney should be helpful in negotiating with the defendant during the mediation process by addressing their arguments against you and by making legal arguments on your behalf, that require thorough knowledge of employment laws and court holdings that affect the likely outcome of your potential case.
If you hire an attorney to represent you at EEOC mediation, make sure that he/she meets with you prior to mediation to explain the process, to tell you what to expect, how to act and what mistakes to avoid, in order to ensure that you take full advantage of the process.
False Complaints about Harassment at Workplace are Not Protected
I find the recent Second District Court’s decision in Joaquin v City of Los Angeles to be troublesome. In that case the court overturned the jury verdict in favor of the terminated employee and finding in favor of the defendant employer. The court concluded that false complaints about harassment at workplace are not a protected activity from retaliation. This holding is at odds with the well established rule that an employee who complains about harassment / discrimination / safety violation at workplace does not have to prove that the actual violation complained of took place to claim retaliation, but that employee only needs to show that he or she had a “good faith belief” that the violation took place. I am sure that the courts will define more specifically the line between “good faith belief” and “false complaints” more specifically in order to distinguish which employees are protected from being termination and which are not. For now, in light of the Joaquin case, here are a three simple suggestions for you, if you are about to complain about harassment or if you are being interviewed in the process of harassment/discrimination allegations investigation, that were initiated by someone else:
* Make sure that you testify or complain as truthfully as you can. If you don’t remember or are not sure of something, then don’t make it sound like you are 100% certain.
* Don’t exaggerate and don’t put words in other people’s mouth when you report harassment or discrimination. “Did you hear about our great retirement plan” is not the same as “You should retire” just as “Are you from Africa” is not the same as “We don’t like black people around here.”
* Don’t over-demonize the harasser. If you had a good relationship with the harasser prior to the conflict that gave rise to your complaint or if the harasser did something good for you in the past, give him/her credit for it. There is no point in denying the good things that the harasser did for you before things between the two of you got sour.
Complaining about harassment or discrimination is not an easy task, but it is necessary more often than not. Make sure that when you complain or when you are being interviewed in a workplace investigation, your answers are honest an
When “Lay-Off” is a Wrongful Retaliatory Termination
One creative way that an employer might want to terminate and employee and avoid liability for wrongful termination is by labeling firing as a “lay-off”. Consider a situation where an employee with a good performance records approaches his manager one day and complains about discrimination or harassment, safety issue, or informs his employer of a disability or a need to file a workers compensation injury claim. A few days or a few weeks later, the same employee is being “laid off” due to lack of work or restructuring. How can one tell whether it’s a genuine lay off or just a cover-up for discriminatory / retaliatory termination which is against the law? Here are some of the questions that you can ask yourself to determine whether there might be a legitimate wrongful termination claim:
- How many other people were laid off – were you the only one laid off in your company or department? If so, unless you were the most junior or the worst performing employee, this fact might suggest that you weren’t really laid off due to downsizing.
- Does the company have a written policy on how its employees are to be selected to be laid off when lay offs take place? If so, does it look like the company complied with its own policy? If not, the employer’s own deviation would suggest that the lay off might not be free of illegal pretext.
- Have you been replaced with someone else? Did the company start looking for another person to replace you shortly after you were “laid off”? It might be worth finding out from your former co-workers or looking at the classified ads to see if the company is looking to hire someone in your place.
- Have you been warned about the possibility of a lay off? If not, why didn’t the employer inform you earlier?
- Were you laid off soon after engaging in a protected activity (complaining about discrimination, not being paid overtime or being misclassified as a contractor, complaining about sexual harassment, etc…)? If so, this would further suggest the likelihood of retaliatory termination.
Do this brief and relatively simple investigation can provide an insight into whether you were truly laid off or wrongfully terminated.
