Imagine this. Employee “X” has had terrible attendance and production problems. You have warned him in the past that his attendance pattern must change (you need to have him at work) and his production must improve. After you had given him a final warning and had told him that the next action would be discharge, he came to you with a dubious complaint about his work environment. When his attendance and work performance did not improve, you terminated his employment. And here is what you expected – he has filed a charge against you and has claimed that his discharge was in retaliation for his work environment complaint (claims of retaliation have increased over the past few years to the point where they are the most common complaints raised at the Equal Employment Opportunity Commission). What next??
Well, you might be in luck here in your defense against this charge because the United States Supreme Court ruled just last month that an ex-employee like yours will have to show that “but for” his complaint he would not have been discharged. He must go beyond arguing that his complaint to you was a “motivating factor” in your decision to discharge him. In this
case, that means you will have a much greater chance of beating this charge back as your ex-employee will not be able to argue the required “but for” connection as you will show that the discharge was the result of poor attendance and poor productivity. Should you have any questions regarding employment issues, please contact John B. Bechtol at 412.918.1115.
