Can Your Business Be Sued For Retaliation?
Can getting rid of a employee get you sued?
The answer is Maybe!
This blog ties in nicely with last weeks blog on EPLI (Employment Practices Liability Insurance)
If you’ve been considering firing an employee who’s been giving you headaches about workplace safety, you might want to hold off on issuing the pink slip. This is the painful lesson learned by one Arizona-based trucking and transportation company, M3 Transport/SLT Expressway.
One of their drivers was directed to make a run with a co-driver who was a smoker. He found a whole bunch of cigarette butts in the co-driver’s truck. The problem: The cargo was explosives.
Smoking while hauling explosives, the driver pointed out, was a violation of HAZMAT regulations.
The company sent him home after pointing this out, and then fired him two days later.
Bad move
The employee complained to the Department of Labor. They directed the company to pay more than $200,000 in back wages, $15,000 in interest, and punitive damages of $20,000. It would have cost them a lot less to to find a non-smoker who was willing to make the trip.
OSHA also directed the company to post information on workers’ right to raise workplace safety concerns without having to fear retaliation on the part of the employer.
In this particular case, the company specialized in hauling explosives for the military. So, it’s easy to conclude that they should have known about the regulation forbidding smoking on explosive hauls.
Another case involving a trucking company: A driver for Interline Logistics Group LLC in Sauk Village, IL, informed his central office about a brake problem on his truck. The company instructed him to take the truck to a mechanic to have it checked out. Then dispatch instructed the driver to pick up another load. The driver refused, stating that he was already over the number of work hours allowed by law.
The company fired the driver the following day – for failing to follow the (illegal) instructions of the dispatch office.
Again, the driver complained to OSHA, which investigated, and found Interline Logistics Group culpable. They directed the company to rehire the driver immediately – and pay him $190,000 in back wages, citing the anti-whistleblower provisions of the Surface Transportation Assistance Act.
In a separate case, an employee accused Party Rental Enterprises, Inc., dba Able Linen Service, of firing him for raising objections over a workplace safety issue. OSHA attempted to contact the employer, but the employer was not responsive to numerous attempts to contact them.
The problem did not go away by ignoring it: The worker and OSHA secured a default judgment against the employer. A judge directed the company to pay $17,000 in back wages against the company, plus an additional $20,000 fine.
Lessons Learned
The first lesson learned is that firing employees solely on the basis of whistleblowing does not pay off. If the employee complains and the matter gains any traction or goes to court, the whistleblower receives the benefit of any doubt. The burden of proof falls on the employer, in these cases, to demonstrate based on the preponderance of the evidence that the firing was justified – and for reasons wholly unrelated to the whistleblowing. The laws make it very difficult for employers to fire whistleblowers, so even if you are firing them for other reasons, you need to make sure that your documentation is very strong.
Documentation is therefore the key to protecting your interests – and that goes for employers and employees alike. If you don’t have a record of documentation for disciplinary infractions – ideally predating the incident under review – then you have an uphill battle in court if it comes to that. Make sure that all incidents are documented in writing at the time and date they occurred. Documenting multiple previous issues at a later time does not stand strong in a court of law.
Likely, documentation becomes the employee’s friend. For example, truckers with safety or maintenance concerns over their employer’s vehicles should be diligent in filling out their daily vehicle inspection (DVIR) reports. These reports become the employee’s friend, in court, if the vehicle problems were documented ahead of time, and if the employee has a track record of being diligent about reporting vehicle maintenance problems. Employees generally do a better job documenting their file than some employers. Don’t let this happen to you. Make sure that all logs and vehicle’s maintenance records are maintained along with employees disciplinary issues. In order to be protected if these issues arise in the future, in addition to documentation, you need employment practices liability insurance.