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Retaliation threat ends when employment does

by on
in Employment Law,HR Management,Human Resources

Employees who blow the whistle on their employers’ alleged illegal actions are protected from retaliation. But that protection has important limits.

One of those is that the retaliation must take place while the employee is still working for the employer.

Recent case: Douglas Hansen retired from the California Department of Corrections and Rehabilitation shortly after officials began to suspect he had engaged in misconduct and criminal activity. Among the allegations: that he had had a sexual relationship with an inmate.

His retirement, however, didn’t end the investigation. Police got a warrant to search Hansen’s house. They seized several items, but ultimately, no criminal charges were filed.

Hansen sued, alleging that after he retired, people at the department wanted to punish him for allegations he had made over the years: accusing the department of wrongdoing.

He essentially accused former co-workers and supervisors of creating a web of lies designed to get back at him, since he claimed to have been a regular whistle-blower protected from retaliation.

The court disagreed. It explained that retaliation requires an employment relationship. An employer can’t be guilty of retaliating against someone who is no longer an employee. (Hansen v. California Department of Corrections and Rehabilitation, No. F054911, California Court of Appeal, 5th Appellate Division, 2009)

Final note: Of course, many other lawsuits are possible if employers maliciously retaliate against a former employee. For example, giving false information may amount to defamation or intentional infliction of emotional distress. You can gain some control over this by prohibiting anyone other than HR from responding to reference checks.

Before taking any action against a former employee, consult your attorney, who can best help you avoid trouble.

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