By Bob Brady, BLR Founder and CEO

Orlando, FL--Consider this scenario. An employee is a major problem. Regularly late. Missed deadlines. Difficult to deal with.

She is trouble, but her supervisors and HR have done a good job preparing. They have given good counseling along the way. The file is in good shape, clearly documenting the problem and what has been done. HR is involved and the plan is to terminate the employee. A meeting has been scheduled.

Then, out of the blue before the meeting can be held, she files a harassment suit against someone else in the company, another employee who was in no way involved in the original problem.

Can you go ahead with the termination? What should you do if you want to do so?

This was the question posed by Tara Bedeau of the law firm Littler, Mendelson (San Francisco, CA) at BLR's 1st Annual Employment Law Update last week.

Members of the audience had various theories:

• "Check the file."
• "Continue the investigation."
• "Put her on notice."

But Bedeau said that the key to whether you can consider going ahead is simple. First of all, are you certain there is no connection between the planned discipline and the harassment claim? Second, "How have you have treated other similarly situated people?" she asked. If the documentation in this case is good, proving that there is no connection and that you've treated other employees the same way, it may be possible to go ahead with your plans. "Consistency is the key," she said.

The claim of harassment elevates the risks, but Bedeau cautioned that you must still manage performance. You have to be confident that the discipline is totally unrelated to the harassment claim and that it is consistent with what you've done in the past. You still have a duty to investigate her charge and, if it is found to have merit, to take action against the offender. There is some risk.

Retalitation

The topic of Bedeau's presentation was "Preventing Unlwful Retaliation: Making Sure You're Headed in the Right Direction." As she listed the dozens of laws prohibiting retaliation, she made it clear that retaliation claims are serious.. There have been numerous cases when employees have sued, and lost on their original claim, but won large penalties because of retaliation.

Tips

She offered these tips for avoiding retaliation claims:

• Pay attention (to any protect activity).
• Preempt retaliation claims by quickly and effectively responding to all complaints of unlawful conduct or illegal activity.
• Have an independent, competent professional thoroughly investigate complaints.
• With retaliation claims, pay careful attention to the chronology of events; especially "action-reaction."
• Follow up and monitor situations.
• Make sure to deal with any additional issue that might arise during an investigation separately. (e.g., a complainant's performance problem or misconduct. Mixing other issues with the complaint may set the stage for a retaliation claim.).
• Never threaten retaliation against an employee--even in the mildest form.
• Avoid any negative emotional expressions about an employee's complaint, in statements or in email.
• Respond quickly and thoroughly to any complaint of unlawfulness
• Before you act against an employee who has engaged in protected activity, stop and review all of the facts.
• Do you have a good anti-retaliation policy? Is it well publicized?
• Work with the HR and legal departments.
• Be wary of requiring a complainant to transfer or change jobs to resolve a harassment situation.
• Document: Good documentation is systematic, ongoing, detailed, and accurate.
• Train management.
• Remember that to the public whistleblowers are Heroes. Public sentiment will be against you if the case becomes public.