Settling case? Prevent a second lawsuit by including promise not to reapply

by on
in Employment Law,FMLA Guidelines,Human Resources

When you settle a lawsuit involving discrimination or some other employment matter, you typically want that to be the end of it. But too many employers fail to think through every eventuality. What if the former employee applies for an open position?

If you turn her down, she may believe she has been blacklisted. And that could be retaliation for filing the first lawsuit.

Advice:
Avoid a second lawsuit by including a condition in the settlement that bars the employee from ever seeking employment with the company again. It may cost a few extra dollars to extract that promise, but that’s far less expensive and time consuming than a second lawsuit alleging retaliation for the first one.

Recent case:
Pamela Docken worked for the state of Minnesota as an administrator when her father suffered a stroke. Supervisors at her agency denied her request for FMLA leave to care for her father, and she quit.

Docken then sued, and the state offered to settle the case.

Docken then began to send applications for any state job opening she saw. She applied for more than 100 jobs but never got a response. That’s when she sued for retaliation.

The trial court said the case should go to a jury, which will decide whether Docken was, in effect, blacklisted because she had sued before. (Docken v. State of Minnesota, No. 08-4952, DC MN, 2009)

Final note:
If your settlement didn’t include a bar on future employment, process the application as you would any other.

Leave a Comment