SPIRIT OF THE LAW VERSUS THE LETTER OF THE LAW
Perceived Retaliation for Reporting Misconduct-Law Enforcement
Allegations of retaliation can occur when an employer or a representative of an organization engages in an adverse employment action against an employee guided by the letter of the law versus the spirit of the law.
In many retaliation cases, an employee who reports misconduct is disciplined and the stated reason is that the employee has violated an organizational policy with the delay or manner in reporting it. These cases deserve careful legal and moral scrutiny. Such cases should be red flags for an organization claiming to have zero tolerance for workplace misconduct. In instances where the act of reporting misconduct directly results in adverse employment action on the reporting employee, there is clear potential for financial consequences for the organization.
Understandably, organizations have a legitimate interest in ensuring compliance with the existing policies. Employers have the discretion to address violations of policy through the use of discipline. However, courts continue to scrutinize the timing or short proximity of the allegations of retaliation and the discipline imposed on the reporting employee, as relevant factors in considering the merits of a retaliation case.
Organizations should be mindful that imposing discipline on an employee shortly after reporting workplace misconduct could be perceived and interpreted as retaliation. Moreover, in civil proceedings a jury can reasonably infer that the violation of policy was used as a pretext by the organization to punish the employee for reporting misconduct. Now days, circumstantial evidence is becoming more prevalent in finding the employer liable for retaliating against the employee.
To be balanced, organizational policies must be reasonable and may not unduly hinder the employee’s right and ability to report. The policies cannot be so strict thus to penalize employees who do not realize immediately that the unacceptable conduct is serious enough to report, or even that the acts rise to the level of workplace misconduct. Organizations must carefully examine any adverse employment action taken against the reporting employee to avoid the perception that discipline was merely a pretext for retaliation. In investigating and adjudicating such cases, some state agencies suggest the following factors be considered: (1) whether the employee’s deviation from the procedure was minor or extensive, inadvertent or deliberate; (2) whether the employee had a reasonable basis for acting as he or she did; (3) whether the employer can show a substantial interest in the policy and its enforcement; (4) whether the discipline imposed appears disproportionate to the asserted interest; and most importantly, (5) whether similar violations of policy have been previously addressed in a consistent manner by the organization.
Lastly, personal interests should not carry any weight in determining whether to discipline a reporting employee with minor misconduct. If possible, any conflict of interest arising from any enforcement action, which could be perceived as retaliation, must be avoided. The decision should be made solely to protect the organization’s interest in maintaining public trust and employee confidence in the organization. In conclusion, “doing the right thing” is always a good practice in deciding whether to follow the letter of the law versus the spirit of the law in investigating and adjudicating employment related cases.