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Whistle-blower isn’t doing her job? Feel free to discipline

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in Firing,Human Resources

Here’s an important reminder when management gets nervous about terminating a so-called whistle-blower. Solid, legitimate reasons for discipline take precedence over protections to which whistle-blowers are entitled.

Simply put, if you can show that the em­­ployee is a poor performer whom you would have fired regardless of her whistle-blowing, firing her doesn’t automatically mean you will lose a lawsuit.

Recent case: Jenna, who had some paralegal training, worked in HR as an assistant. The HR office had staff of two: Jenna and her boss. Senior executives had an outside attorney on retainer to handle unusual HR legal matters.

When Jenna’s employer was seeking advanced certification as a model telemarketing company, it had to undergo a compliance review. It became apparent during the review that HR wasn’t being properly run. The company ordered Jenna to spend almost all her time organizing personnel files and generally making sure all the paperwork was handled properly. At the same time, management ordered a change from paper paychecks to direct deposit.

Jenna argued with management about direct deposit and told them she believed requiring it was illegal in Minnesota. A manager told her the company’s attorney would review the issue.

Jenna wouldn’t let it go. She did legal research on direct deposit at home and then printed more information at work. That’s when her supervisor told her she should drop the issue since it was being addressed, and in­­stead go about organizing the personnel files as she had been directed to do earlier.

In the following days and weeks, Jenna was repeatedly reprimanded for failing to carry out such tasks as updating new-hire files and for arguing publicly with other employees in the lobby.

When confronted with her incomplete work, she again argued about the direct deposit policy—and was again told that the attorney was handling it.

Finally, she was suspended for a week, placed on probation when she returned and informed that she was to stay on task. When she didn’t, Jenna was fired.

Then she sued, alleging retaliation for whistle-blowing.

Her case was dismissed. While her initial complaints about direct deposit were protected activity, the court didn’t find any retaliation. Instead, it saw an em­­ployer that fired an employee for not doing her job. (Wood v. SatCom Mar­­ket­­ing, No. 12-1712, 8th Cir., 2013)

Final note: It’s sometimes hard to tell the difference between a genuine whistle-blower who really is sincere in her efforts to bring potential illegality to management’s attention and one that simply is trying to build a case for retaliation should she lose her job.

Your best approach is always to take the whistle-blowing report to heart. Investigate whether changes are in order if the employee is right. At the same time, treat the employee just as you would any other employee when it comes to discipline.

Before making a final decision on discipline, consult your attorney. He or she is in the best position to determine whether discipline is warranted and if so, what the legal consequences may be. Remember, your job is to document performance; your attorney’s job is to minimize potential legal liability.

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