Interacting with Employees Who Have Filed Claims Against You

Many employers find it awkward and uncomfortable when they receive notice that a current employee has lodged an employment law complaint against them. This is especially true in smaller companies where employers have more personal relationships with their employees. Some employers unwisely take it personally. Others become overly tentative in their dealings with the employee in question. Both of these courses of action can have potentially adverse legal consequences and should be avoided.

Although it may seem difficult, the wisest course of action is to treat the employee no differently than you did prior to the complaint and no differently than you treat your other employees. Nearly every state and federal labor and employment law has a provision — often called a whistleblower or retaliation provision — that makes it a separate offense to punish an employee for filing a complaint or engaging in other protected activities such as:

• Workers compensation claims
• OSHA and other safety complaints
• EEOC charges and discrimination suits
• Union grievances
• Union activity
• Whistleblowing

On the other hand, unless your company has engaged in clearly illegal conduct regarding its employees, altering your behavior based on an employee complaint may later be used to show that your company was conscious of the violation or the feasibility of remedial measures. This can be compelling evidence in many types of employment disputes, including union grievances, labor arbitrations, NLRB charges, EEOC investigations and employee litigation.

Of course, it is also important for employers to realize that their hands are not tied in regards to employee misconduct simply because of a pending charge or lawsuit. Firing or disciplining an employee for bona fide misconduct or documented policy violations is not retaliation. While it is important for employers to proceed very carefully under these circumstances, they are not required to suffer employees who engage in clear misconduct believing themselves to be invincible because of a pending charge or lawsuit.

Contact an experienced Washington, DC employment lawyer if your company is being sued by an employee to protect your company’s rights.