January 15, 2019

While this week’s tip of the week could easily take up an entire blog post or even an all-day seminar, I wanted to distill down a very important concept employers need to keep at the forefront of their minds when considering terminating an employee who has recently engaged in protected activity – such as taking or requesting FMLA leave or filing a discrimination complaint.  The lesson is: timing, timing, timing.  Even though you know in your heart or hearts that you are not retaliating against an employee for engaging in this protected activity, if the termination comes shortly after an employee files a complaint or takes FMLA leave, that alone can satisfy the legal requirements for establishing a prima facie case of retaliation.  Remember, prima facie is just fancy lawyer speak for a lawsuit in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at a trial.  While this hurdle can be overcome by an employer by showing a legitimate, non-retaliatory reason for the termination, it’s preferable to never be in the position to have to defend your actions in a lawsuit.  To that end, documentation and communication are the keys to keeping you out of this hot water to begin with.  Keep notes of all disciplinary issues and keep open the lines of communication with your employees.  This is one of the most common issues we hear from employers, so please contact our attorneys at myHRcounsel with any questions you might have on this topic!    

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