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Watch timing of adverse action against whistle-Blower

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in Firing,Human Resources

Want to guarantee a day in court with an  employee who blows the whistle on alleged company wrongdoing? Just take adverse action against him—firing, demotion or suspension, for example—within hours of hearing about the complaint.

If you already had planned to take action, make sure you can substantiate it. Be sure you can also show there are no “smoking guns” that could point to a different motivation.

Recent case: Pilot Ray Gary’s employer fired him about six hours after Gary told his supervisor he refused to fly with another pilot he thought was unqualified. Gary then sued, alleging his discharge violated the New Jersey Conscientious Employee Protection Act (CEPA), which protects employees who inform their supervisors about a violation of a law, rule or regulation. In this case, Gary said his protected allegation was that his fellow pilot was about to violate FAA regulations.

The employer claimed that the timing was coincidental—that it had planned to fire Gary anyway. But the court looked at the date the company supplied for Gary’s unemployment compensation application. It did not match the date the company said it actually fired Gary. It all looked fishy to the court, which ordered a trial. (Gary v. The Air Group, No. 02-2589, DC NJ, 2007)

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