Chapter 53 – Protecting Employee and Employer are Equally Important

In this ever growing litigation area of protecting the employee from retaliation from some adverse action, we would be remiss as a society to not consider the importance of also protecting the employer. In Oregon, one of the protected acts of an employee is filing a complaint with the police, department of justice, etc., about a criminal act of public concern provided that the complaint is made in good faith. In many states that protected behavior is expanding to include complaints to management, which to me makes a lot of sense.

Borrowing data from the Occupational Safety and Health Administration (OSHA), only 2 % of complaints result is some action against the employer. And so we can surmise that the employees’ interest in, perhaps, striking a blow against an employer or former employer is determined to be unfounded 98% of the time. Now does that mean that 98% of the time the employee made a complaint in bad faith? No, but it is likely conclusion that a lot of the complaints were made in bad faith or based on bad facts.

By extension employers can be sued over any perceived adverse employment action when an employee make a goof faith complaint. The problem with the term good faith complaint is that it is not well defined. Is an employee that files a complaint, based on evidence he claims to have, enough to be considered good faith, particularly when it turns our there is no evidence? Or when the evidence was fabricated by the employee, but the complaint itself raises credible public concerns? Or when the employee intentionally thwarted the employers effort to find the evidence when performing a good faith investigation?

This is an area where an arbitrator has a lot of discretion, perhaps too much. An arbitrator could  determine that an employee did not make a good faith complaint based on the evidence or could decide from his perspective that all complaints are made in good faith, measuring it from the employees perception of reality and standards as opposed to what may well be a more educated view. The standard’s simply too subjective and too low. And because that threshold is so low, attorneys take advantage of that.

There’s been an explosion of these lawsuits.  I can imagine that when the law was first proposed and eventually enacted that the Oregon State Bar and The Trial lawyers group knew this would be good for business. The Bar is in the business of expanding the interests of its members, which logically is expanding the franchise of law…more lawsuits, more compliance, more consulting, more contracts. Attorneys don’t pan for gold. They don’t create anything new. They make their money by earning it or taking it from you and me, principally business and wealthy individuals.

The analysis in my company’s case with its former employee “M” lends itself to some version of the if…then analysis. So lets go through that in the context of retaliation complaints and litigation abuse.

1.If M was terminated before he made the complaint to the ODJ or management, then it was not an action that is retaliation and we should not have been forced to endure this seven year lawsuit. Our evidence showing that M was terminated before he filed his complaint was overwhelming and in our favor. No legal action should have been taken. In spite of this evidence, which was offered to opposing counsel early on, the lawsuit was still filed. And our motions to dismiss the case were denied by the Arbitrator.

But lets assume for our analysis that there was no strong evidence that M was fired before his complaint.

2. If there was no complaint to the police or ODJ, then there is no retaliation. If there is a good faith complaint and adverse action was taken against the employee, there is retaliation. And there was a complaint. If the government body receiving the complaint requests the evidence supporting the complaint and no such evidence was provided, then I would conclude that there is no good faith complaint. Is that a false assumption? Maybe. I can imagine that needs to be determined in context. For example if an employee complained to a government body about radiation leakage because of observed failed procedures that could put thousands of lives at risk, there may be no body of evidence readily available to the employee. I can see that context getting a nod for safety. However, if an employee makes a claim that he was fired because he called the police when observing his boss driving 55.25 miles per hour in a 55 mph zone, then I think the context on that and conclusion is it simply does not meet a good faith belief or standard. Even if the employee took a photo of a speedometer, it still does not meet a reasonable public concern standard. And if that same employee took the photo and claimed he would provide it but does not, then it fails the good faith standard. And if he provided it to the police but the speedometer shot was not that of the boss’ car, then it fails. My point is that these nuances have a way of becoming unbelievably silly and yet are real complaints and often survive through a trial or arbitration putting an unfair burden on the Defendant.

But lets assume the good faith standard was met and the employee caused some damage.

3.If the employee takes retaliation action of his own and damages the employer before or after the claimed retaliation, then the employee damages should be cut off. Action was taken to harm  us. Therefore the damages should have been cut off. So lets use an example of where  a farm employee makes a claim for unsafe working conditions and was fired. He’s going to file a lawsuit. He’s given a weeks notice and on his last day sets the barn on  fire. The employee was paid up to the time he set the barn on fire. He makes a claim for $500,000 in lost wages for the rest of his life. The farmer says you set the barn on fire and we owe you nothing. That should be correct. The employer has rights too. In our case, we went down for a week after M left, costing us more than a barn…$100,000. So the only way M gets past this is for the arbitrator to determine that he did not set the barn on fire as it were. When you present five witnesses as we did, among them software engineers and forensic experts who say he did, then even under the worst of conditions we should have won our damages. We did not.

There is no one keeping the arbitrator in check. Did Crow do it for Marshall? Did he do it because he was asked to? There’s more to this story, but the message to you is that arbitration is too dangerous because the standard for reversal is too low. You don’t get to present facts about the case when asking a court to vacate or amend an arbitration award.

Arbitrators understand that the more lawsuits that are filed the more they stand to make and for it all to work the attorneys filing the lawsuits must win often enough to support this infrastructure of players; so, you the employer must lose a lot more than you win. That’s the game. Choose not to play by avoiding arbitration. Mediate, but don’t arbitrate.

Until next time.





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