Top management wants to ax ‘troublemaker’? Beware wrongful termination retaliation
There are some things employers just can’t do, no matter what a senior manager may want. For example, you can’t punish a good employee for pointing out potential legal violations.
Recent case: Denise worked for Regus Group for over a decade, managing a commercial building in San Diego.
She consistently earned positive performance evaluations. In fact, just three months before being fired for poor performance, Denise received “exceeds expectations” or “meets expectations” ratings in every review category. She even received a merit-based bonus.
Then Denise met for the first time with the company’s new regional vice president. After touring the building with the V.P. and her own supervisor, the three met to discuss business.
Denise raised an issue she had brought up with others before: Regus’ policy of denying rest and meal breaks to hourly employees. Denise said that violated California wage-and-hour law.
According to Denise and her boss, the V.P. immediately stopped talking and didn’t say anything until she abruptly stood up and left the room, ending the meeting.
Before long, Denise found herself on a performance improvement plan. Soon after, she was terminated, allegedly for poor performance.
Denise sued, claiming her firing was retaliation for reporting wrongdoing. Her supervisor testified under oath that the new V.P. said Denise “was a problem,” that he should start looking for a replacement and should “start putting together a plan to have removed.”
The 9th Circuit Court of Appeals said that was enough evidence to warrant a jury trial. (Steffens v. Regus Group, No. 11-55379, 9th Cir., 2012)
Final note: Denise based her lawsuit on the tort of wrongful termination in violation of public policy. The concept allows employees to sue their employers if they believe they were retaliated against for refusing to violate a statute, performing a statutory obligation, exercising a statutory right or reporting an alleged violation of a statute of public importance.
The employee doesn’t have to go to authorities or to an administrative agency to be protected, either. All she has to do is complain internally.
What to do when the boss wants to break the law
No situation is harder for HR than reining in a rogue superior. But sometimes it has to be done, no matter how uncomfortable or personally risky the move may be. It’s better to lose a job than end up facing potential personal liability for participating in an illegal act.
The best first approach is to appeal to reason. Explain the law as best as you can. Get help from the company’s attorney if possible. At the very least, seeking legal advice will protect you from personal liability. At best, a stern warning from counsel will make the boss back down.
If the boss won’t listen to reason, use your organization’s processes for reporting harassment, discrimination or other wrongdoing. Go further up the chain of command, armed with an attorney’s advice. Or ask the attorney to do so for you.
Finally, remind upper management that you will have to testify truthfully at any agency hearing, deposition or trial.
