It is no secret that being an employer is difficult.
When faced with the prospect of terminating an employee, it is even harder. Aside from the emotional toll, and the possible effect on the workplace dynamic, there are practical risks involved: have all wages been paid? Has everything been properly documented? Will there be an unemployment claim? Is the employee likely to sue?
And if you do get sued, your headaches grow as legal fees mount, and bad blood boils. Add to this, one more consideration:
Have you made promises to the terminated employee which may support a later claim for retaliation when you fail to act on those promises?
Imagine that you terminated a long term 70-year-old employee, promising that you would not oppose unemployment benefits and that a favorable reference would be issued. The terminated employee begins receiving benefits, but then advises (through her lawyer) that she intends to file an age discrimination claim. As the Employer – what do you do? If your action would be to oppose the issued unemployment benefits and refuse to issue the favorable letter of reference, you may be liable for retaliation for your post termination conduct.
A recent federal decision in Pennsylvania permitted a post-termination action for retaliation to proceed, in addition to the underlying age discrimination claim. In Roe v. McKee Management Assoc., Inc., the court held that a former employee could proceed on an age discrimination retaliation claim due to the employer’s change of position in contesting the ongoing unemployment benefits and failing to issue the promised favorable reference letter.
Ms. Roe, in her seventies, was terminated and replaced with a younger employee. She was told she would be provided good references and there would be no contest to her unemployment benefits. She later (after refusing to sign a release of claims) filed an age discrimination claim with the PHRC. The Employer, reversing course, contested her unemployment and never issued the promised positive letter of reference. Based upon these facts, Ms. Roe stated a claim for retaliation under the Age Discrimination in Employment Act due to the employer’s actions which may have impacted Ms. Roe’s ability to obtain future employment.
With this in mind, employers should be aware that promises made by the employer upon termination of an employee matter. So does the failure to keep those promises. Regardless of whether the former employee is in a protected class, care should be taken at the time of termination not to make empty promises, or promises which an employer reverses course because of a discrimination complaint.
What can you as an employer do to prevent such retaliation claims?
- Don’t make empty promises upon termination. Have a policy to treat all employees equally, and, if you say you will not oppose unemployment benefits or issue a positive letter of reference – stick to your word. Even if that means you do it after the former employee complains of his/her treatment.
- Opt for a policy that designates what employees are entitled to at the time of termination and apply the policy in a consistent fashion. You should determine appropriate policies now, rather than at the time of termination, or notice of a discrimination claim, which should reduce the risk of adding a post termination headache.
This article was co-written by Siana Law attorneys, Sheryl L. Brown and Brian C. Conley. Visit the links below to learn more about each attorney and Siana Law’s Labor and Employment practice area.
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