Last-Minute Whistle-Blowing Before An Expected Termination to Create A "Retaliation" Claim

A while back I wrote about this frustrating practice lawyers were training California employees to follow:

Years ago, in Ventura County California (where I am thankfully no longer doing business), a loyal employee approached our manager and told her of a meeting that had been held the night before for our employees at a local attorney's office.  The attorney was holding the meeting mainly because he was trying to drum up business, brainstorming with my employees how they might sue the company for a variety of fanciful wage and hour violations.  Fortunately, we tend to be squeaky clean on labor compliance, and the only vulnerable spot they found was on California break law, where shifting court decisions gave them an opening to extract a bit of money from the company over how we were managing lunch breaks.

Anyway, in the course of the meeting, the attorney apparently advised our employees that if they ever thought they were about to get fired, they should quickly accuse someone in the company of harassment or discrimination or some other form of law-breaking.  By doing so, they made themselves suddenly much more difficult to fire, and left the company open to charges of retaliation if the company did indeed fire them.   In later years, we saw at least two employees at this location file discrimination or harassment claims literally hours before they were to be terminated for cause.   Since then, I have seen this behavior enough, all over the country, to believe that this is a strategy that is frequently taught to employees.

So now we have the James Damore / Google memo brouhaha, of which I generally choose not to comment except to say that it is worth skimming the memo and comparing its contents to how it is portrayed in the press just to see how unreliable the media is.  However, I wanted to note this bit (gated WSJ):

But before his firing, Mr. Damore had complained to the National Labor Relations Board about superiors “misrepresenting and shaming me.” Now he is arguing that his dismissal constitutes retaliation. This is a stretch, since the labor board’s purview doesn’t extend to individual workplace disputes. But Mr. Damore could still try to take Google to court.

It is going to get super-tedious if every employee starts lobbing in an 11th hour government complaint when they are anticipating termination just to set up grounds for a retaliation claim.  Except in the case of grievous fire-on-the-spot misdeeds, it is generally good practice to give employees warnings of poor performance and potential termination so they have a chance to correct such behavior.  Terminations can certainly stressful and disappointing and aggravating, but they shouldn't be a surprise.  But perhaps in the future this may change and ambush firings will become the norm to avoid this kind of thing.


  1. Peabody:

    I think "ambush firings" as you term them will become more common. Of course to the detriment of employees that legitimately could improve their performance/behavior. And these fake harassment claims just serve to weaken those few workers who were legitimately harassed or discriminated against.

  2. glenn.griffin3:

    Apparently "ambush firings" is what the government wants: it is what they creating incentives for.

  3. ErikTheRed:

    Exactly. As PJ O'Rourke put it, the only law that's never broken in Washington is the Law of Unintended Consequences.

  4. The_Big_W:

    But the point is Damore's firing was retaliation. Also, Google higher ups were circulating and encouraging his firing from the point he posted he memo on.

    In short google is sure as hell guilty of retaliation AND descrimination for political views.

    Also, you used the wrong word for the media. It's contemptible, not unreliable.

  5. SamWah:

    I believe the media are BOTH. Embrace the power of AND.

  6. irandom419:

    Interesting you are actually using the term fired because my friend in California says they do lay-offs of one person. This makes it hard for people that had been legitimately laid-off to get work unless they can say it was a plant closing.

  7. The_Big_W:

    Ah yes...

  8. frankania:

    I got tired of all the govt paper-work, tax accounts etc. of my electronics business in MS in the 80's and 90's, so I FIRED all the employees and hired them back as "sub-contractors" giving them the FULL amount of their earnings, and allowing them to file all the papers themselves (or not).

  9. Jeffrey Deutsch:

    Not to mention that, at least in the US, even genuine layoffs -- unless they're conducted under strict seniority or similar rules, or come from employers going belly-up, locations closing or contracts being cancelled/terminated/expired -- are seen as really soft firings. In other words, you didn't commit a firing offense but you were generally a creep, a pain in the ass and/or behind the competence curve.

    A study in the Journal of Labor Economics shows that even back in the 1980s having been selectively laid off means you tend to take longer to find a new job, and when you do find one the pay tends to be somewhat lower, than if one of the above exceptions happened to you.

  10. Manual Paleologos:

    Back in the day, it was not uncommon for an employee to maintain a "Pearl Harbor File," of complaints, "Just in Case."

  11. Manual Paleologos:

    Isn't the Infernal Revenue making that quite difficult, now?

  12. Igor:

    I came to work one Friday, and the supervisor told us (because he's a good joe!) that we were to be told not to come in for work Monday evening (night shift) as we left end-of-shift because the company was laying off. We all went home that evening. Can't blame the Company, but a little advance notice would've been appreciated. This was in '84, by the way.

    Sure wish you could've gotten a video of the attorney giving that advice!