Working Together

There is a saying that “timing is everything,” and in some instances of employment termination, the timing, if not everything, may still be an  important consideration.

Many of the laws which provide benefits to employees contain provisions which protect the employees from retaliation for use of those benefits.  Examples of such protections are included in the Workers Compensation Act, the state and federal Family and Medical Leave Acts, the Paid Sick Leave Act, ERISA, and federal anti-discrimination statutes such as Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act.  The State of Connecticut’s Fair Employment Practices Act does not have an explicit retaliation provision, but the Connecticut Supreme Court has ruled that retaliatory actions are forms of discrimination which violate the statute.

Employees guilty of misconduct or failure to perform their duties are not automatically insulated from appropriate discipline, including discharge, simply because they have filed a workers compensation claim or a complaint with the Commission on Human Rights and Opportunities, or recently taken family or medical leave, or otherwise availed themselves of a statutory employment benefit.   But in evaluating retaliation claims, the courts have held that temporal proximity of events may give rise to an inference of retaliation, at least to the extent of establishing a prima facie case which would survive early dismissal in a lawsuit or agency proceeding.

If an employee is caught stealing a company computer on the day after he files a discrimination complaint or returns from medical leave, there is probably not much risk of a retaliation claim if he is fired.  But often the cause of termination is less blatant; the employee may have been underperforming and may have been counseled or disciplined, but if he was not fired before he filed his complaint or went on leave, there is probably not much to be gained by firing him on the first workday after he engaged in the protected activity.

The more prudent course may be to continue with progressive discipline, with strong documentation of performance issues which have no relation to the protected activity.  Progressive discipline should culminate in a clear final warning and a last opportunity for the employee to bring his performance up to expectations.  These procedures may not prevent a retaliation claim, but they will help illustrate that the termination was a neutral response to deficiencies in performance, regardless of whether the employee engaged in protected activity.