Employees may begin suspecting that their job is in danger beforehas a chance to implement a discharge decision. That’s when you can expect them to complain about harassment or discrimination. Or, in Minnesota, they may request a copy of their personnel file to see what’s in it and prepare for a potential lawsuit.
Beat that strategy by carefully documenting the discharge process. You will be able to show that you decided to terminate the employee before he engaged in any kind of protected activity.
Recent case: David was a regional market manager for Wrigley Sales. When he hired three women for his sales team, his supervisor began to make comments on the phone about the women’s physical attributes. David objected, but didn’t complain to anyone else at the company.
When David was called to a meeting near his home, he suspected something was up and even asked whether he was being discharged. Then he fired off an email to HR, complaining about his supervisor’s comments. He also demanded a copy of his personnel file.
Wrigley—which had indeed decided to fire David for poor management several days earlier—suspended him instead, pending an investigation into the harassment allegations. The company eventually determined that it couldn’t substantiate the allegations and then carried out its earlier termination decision.
David sued, alleging retaliation for requesting his personnel file and for complaining about his boss.
The court tossed out his lawsuit, noting that Wrigley could prove it made the decision earlier, before the complaint and file request. The discharge therefore couldn’t have been punishment for the complaint and request since the company didn’t know about either when it made the decision. (Fleener v. Wrigley Sales, No. 12-CV-3085, DC MN, 2014)