Percy Green was laid off from his city government job as part of a reorganization. Before the reorg, Green had complained about certain city operations that, he said, encouraged fraud. Before he was shown the door, Green’s supervisors told him they’d be in touch if any openings arose for someone with his qualifications.
Later, Green sued when he discovered that the city had added four employees in his position and never called him for an interview. He argued he hadn’t been rehired in retaliation for his earlier complaints.
The city claimed he could not file a retaliation lawsuit because he never officially reapplied. But the 8th Circuit Court of Appeals said Green didn’t have to apply for a job in order to sue since his supervisors had told him they would call. (Green v. City of St. Louis, et al., No. 06-3349, 8th Cir., 2007)
Advice: Tell supervisors to avoid the encouraging words, “If we have an opening, we’ll give you a call.” They’re well-intentioned but legally dangerous. Tell departing employees you’ll consider them for any openings they’re qualified for if they apply. Then explain how you post job openings and leave the ball in their court.
- When employee complains of bias or harassment, beware acting in ways that look like retaliation
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- Arbitration agreement should stand on its own, separately from employee handbook
- Set reasonable limits on noncompete agreements
- Include fair geographical and time limits in noncompete pacts