Tuesday, April 24, 2007

Watch Out! Don't fire a complaining employee.

Here is an interesting article about at-will in America form this week's BusinessWeek. This is one of the major issues I have been dealing with the more I learn in this class. Frankly, I am still very afraid of just what can happen when you have to fire someone. I understand better now the need to keep documentation of every contact with each employee/person (this is why I prefer to e-mail everything now), but still this doesn't protect from a lawsuit. In the article GE was sued because of alleged discrimination, but the judge said the proof was so weak he wouldn't allow the plaintiff to present the discrimination as evidence. However, the plaintiff was awarded $11.1 million because of the alleged retaliation stemming from complaining about the alleged "discrimination" complaints!


Blogger Daya said...

Ridiculous! Basically the courts held that if one were to complain something like "you have a problem with me because I'm _____" (fill in whatever protected characteristic), and you eventually get fired (because surprise surprise, you're a problem employee), you actually can receive damages??

This seems like an issue of pulling out the race card, even if it's untrue, and still getting rewarded for it.

GE should have been able to retaliate with other evidence as to why Mody was fired. It seems clear that his behavior is unacceptable in the workplace.

Another example of how absurd litigation can be...

4:37 PM  
Blogger Nick Hursh said...

I also think this is an absurd settlement. However, after taking this class I feel you have to be careful what you say to employees and even what you put in emails. I am always careful with what I say in emails to my house because people can print that documentation and use it as evidence. My uncle, who is a County Commissioner, usually refrains from using email and prefers telephone communication because people can misconstrue specific statements that can backfire against him. I do not feel this person should have been awarded such a large settlement, but with strict laws today people need to be careful with what they say to their employees.

9:52 PM  
Blogger Professor Prenkert said...

A couple of notes:
1. The article does not make clear that a retaliation claim cannot be based on wholly contrived complaints about "discrimination." The claimant must have a good faith belief that the action about which he or she complains is, in fact, forbidden by (in this case) Title VII or the ADEA. So, the fact that the court dismissed Mody's discrimination claims at the summary judgment stage does not mean that the claims were frivolous. It just means that the court determined they were not strong enough for a jury to find that Mody carried his burden of proof. On the other hand, that the court did not dismiss Mody's retaliation claims on summary judgment means that the court was convinced that Mody believed he was being discriminated against in good faith. That the jury awarded Mody such a large judgment means that the jury was convinced that GE fired Mody because he complained about discrimination rather than any claimed performance deficiencies. The way the article is written and the way the commenters so far are reacting to the case suggests that GE's claims about Mody's performance must be both true and the true reason for his termination. A jury, made of of people who heard all of the best evidence both sides could muster to support their claims, found Mody's evidence of retaliation to be the more convincing account, regardless of GE's claims of poor performance. Certainly juries can get it wrong; but, given their superior access to the information involved in the case and the seriousness with which juries approach this sort of thing in general, I'm ready to give the jury the benefit of the doubt. By the way, rest assured that the judge will lower the ultimate judgment award in accordance with the relevant damages caps.

2. The article also claims that an employer must "prove" a ligitmate, non-discriminatory reason for terminating an employee in a protected class. We, of course, know that is technically incorrect. The burden of proof falls on the employee to prove that discrimination was the reason for the termination. Clearly an employer is in a much better position if it can "prove" the non-discriminatory reason and has every incentive to do so by keeping accurate records, etc.

I'd like for everyone to go back and read the article critically again, looking for other missteps in the analysis.

I don't necessarily take issue with all of the claims in the article. It is true that litigating even a slam-dunk winner of a case can be financially onerous for an employer, especially a smaller firm. And, therefore, it may be cheaper in the short run not to terminate a poor employee who may bring a discrimination claim or to settle a claim even though it has no merit. Lawyers sometimes speak in terms of the "nuisance value" of a case, which means the amount of money a defendant should be willing to pay to get rid of a case just to avoid the nuisance of having to litigate it, even if it is a wholly frivilous claim.

1:10 PM  
Anonymous suzie said...

Actually - what reduces your chance of a lawsuit is good, interpersonal communication. E-mail isn't nuanced, and if you are defensive toward people, the defensiveness, and lack of genuine relationship comes through. So, my contention is that, if you do everything via e-mail, even if you make no mistakes, you increase your risk of litigation (as alienated people are more likely to misinterpret events and sue...)

Doctors with good interpersonal relationships/bedside manner, are less likely to get sued, even if they make a mistake.

1:39 AM  

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