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Good records are key to winning retaliation lawsuits

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in Employment Law,FMLA Guidelines,HR Management,Human Resources,Leaders & Managers,Performance Reviews

When it comes to discharging employees, it’s very important to document your decision-making process. Be prepared to show that you followed company disciplinary rules and applied them even-handedly.

If you do, it’s unlikely that a former employee can show that you fired him or her for an illegal reason.

Recent case: Marcia Davis was the only female press operator working for Moore Wallace. The company has a written attendance policy, which mandates progressive discipline for employees who violate it.

The company keeps careful track of all FMLA leave and makes sure no absences covered by the FMLA are counted toward the attendance policy unless the employee already has used his or her leave allotment.

Davis used her 12 weeks of FMLA leave and was warned that if she were absent again, she would be fired. She then missed work in early December. Around that time, an operations manager allegedly told her, “I never liked the idea of having a female press operator anyway and if it is the last thing I do, you will be gone.”

Meanwhile, the decision to terminate Davis was made by upper-level managers and the HR department on December 22, but they decided to wait until after the New Year to tell Davis. Before she got the news, she reported the operations manager’s comments. When she was fired, she sued alleging retaliation for making the report.

But Moore Wallace was able to document every step of its decision-making process, including the exact date the decision to fire Davis was made. It was clear Davis wasn’t fired in retaliation, since she reported the comment after the decision was made to terminate her. (Davis v. Moore Wallace, No. 06-40544, 5th Cir., 2007)

Final tip: It’s not uncommon for employees who are teetering on the edge of termination to conjure up discrimination and report it. But if you document every step of the process, you make it difficult for the employee to prove retaliation.  

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