Post Employment Retaliation

Steven Cesare, Ph.D.

An accomplished business owner from Massachusetts called me the other day to talk about an issue related to sexual harassment. One of the owner’s top-performing managers was a 35-ish male with multiple years of eclectic experience and sterling credentials. Overseeing several work crews, one of the manager’s indirect reports was a 17-year-old female student worker.

Apparently, as alleged by the student worker, and ultimately confirmed by the manager, during a conversation between them, the manager asked the student worker when she was going to have her 18th birthday, at which point in time, that would then allow the manager to start dating her.

She claimed a hostile work environment. He claimed it was a joke. The owner called me.

We didn’t laugh.

With the passage of only a brief discussion, the owner and I agreed immediate termination was appropriate.

Validated, energized, and righteous, the business owner correctly decided to have a company-wide meeting the next day to inform all employees of the manager’s departure, transgression, and desired behaviors of all remaining employees moving forward to prevent reoccurrence, thereby showing simultaneous compassion to the harassed student worker, condemnation of the manager’s action, and corroboration of the company culture.

I agreed with the spirit of the law; though the letter of law caused me concern.

I explained to the business owner, the same message could be conveyed in a more delicate and optimal fashion if the relevant parties (e.g., manager and student worker) were not mentioned by name. The anonymity of the participants provides an absolute level of distance between the owner and potential legal recoil. In specific, mentioning the manager by name could lead to a charge of post-employment retaliation.

“Yes.” Former employees can sue a previous employer for retaliation (i.e., after their employment ends) related to an action (e.g., harassment, theft, fraud, safety, fighting) the employee took while employed.

If the owner had identified the manager by name, and fellow employees disseminated that fact through gossip, social media, or other means, the former employee could state that the business owner had a direct and detrimental impact on the manager’s future career by slandering the manager in the local community, throughout the regional area, and across the green industry.

Don’t think for a moment, that an employment lawyer would not gladly take that action.

When taken in total, the business owner was primarily interested in maintaining policy enforcement, inter-employee respect, and a team-based organizational culture. Thus, by simply restating the company’s Sexual Harassment Policy, clarifying inappropriate behaviors, and specifying proper reporting procedures without naming names, the ultimate goal was achieved.

Needless to say, I coached the owner to respond to all specific questions regarding the participants, in an innocuous manner (e.g., “Joe and the company have parted ways,” “I am not at liberty to discuss the reasons for Joe’s departure,” “ I think we should all demonstrate professionalism and not speculate on why Joe no longer works for our company).

As always, the owner did the right thing! And now he has 25 witnesses who can verify his side of the story, if he is ever challenged for committing post-employment retaliation.

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