Great Labor Day Reading

Heading out for the long Labor Day weekend but I have to point you to an excellent article from my friend Michael Maslanka in the up-coming Texas Lawyer. The article, entitled "Post-Burlington Northern Employment Procedures," is an excellent resource for any in-house counsel or hr director who wants to help their company navigate the increasingly dangerous waters of retaliation claims.

My favorite tip from the article is Michael's list of audit questions that should be used to analyze corporate actions that might be considered to be retaliatory. He suggests HR or in-house counsel investigate the issues with the following questions in mind:

* What's the temporal proximity? In other words, did the action come right after the complaint or the participation? Is it based on factors that existed before or after the complaint?* Who is the decision maker? Is the person against whom the complaint is lodged also the person who made the decision to take the employment action?* What's the reason for the action? A good way to get at the truth is to ask this question: What is the factual basis for the decision? Can the supervisor articulate it objectively, clearly and specifically?* Was the decision consistent with prior company actions? How have employees in similarly situated situations been treated?* Did the supervisor provide the chance to improve? Did the employee have reasonable notice that the action might occur, and, if possible, an opportunity to correct any behavior or situation that led to the action? This is key. Jurors (and judges for that matter) intuitively frame the issue as whether the employee had knowledge of the problem at hand and control over avoiding what happened.* Was the action fair? The word "fair" is like someone knowing when he's in love. Yes, it's feelings, but feelings often are better decision-making criteria than facts.

Excellent audit questions. You can find the article here.