QUESTION: We plan to let an employee go soon. We’ve learned that she has a history of retaliation against employers after being fired. We’ve heard she reports incidents to licensing boards that somehow didn't rise to the level of needing to be reported while she was employed. Is there anything we can do to minimize the risk of retaliation of this nature?
ANSWER: Unfortunately, there's not much an employer can do to prevent someone from making these claims post-termination. A disgruntled person is going to do what’s in their nature regardless of what an employer does or does not do before termination.
The only thing you can do is prepare for the worst-case scenario and give yourself the things you need to defeat any allegations should this occur. What employers need in order to defend themselves will vary based on the allegation.
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If it's an allegation against an employer for Occupational Safety and Health Administration (OSHA) violations, the employer needs proof that they’ve handled OSHA appropriately. If it's an allegation about dental license violations, then the employer needs whatever documentation is appropriate for that. If it's a concern about payment of wages, the employer needs proof the person was paid appropriately. This means keeping good records, as required by various laws, throughout the life of the employment relationship. It is these steps that will help you defeat any allegations.
Prior to termination, an employer should ultimately have documentation of the job performance problems they were having with this individual. This can be in the form of performance review forms, counseling writeups, and other documents that show there were legitimate reasons based on performance that led to the termination. Depending on how long the person is employed, there should be several counseling documents before termination occurs. This will help an employer, particularly with claims regarding discrimination and retaliation.
These types of things help employers defend their actions and limit liability when claims are brought against them, but it will not necessarily prevent those allegations from occurring if an ex-employee is inclined to go in that direction.
