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Creating and fostering an open work environment can be challenging to employers. They want employees to feel free to discuss any workplace issue, but their legal obligations to the employee who does so can trip them up. If employees are harmed as a result of exercising a protected right - harmed by the company itself or an intermediate supervisor - the employer may be liable for retaliation.

A local case

An example based on a local case illustrates one kind of challenge employers face. A gas station and convenience store manager was performing poorly at her job. An audit revealed that during her six months at the store, her till was repeatedly short. On March 15, company officials met at a regularly scheduled operations meeting, during which they decided to fire the manager.

On March 16, the furnace at the manager's store malfunctioned, releasing noxious fumes. When the manager reported to work, she became ill and left the store to seek medical attention. The company refused to close the store, ran the furnace intermittently and continued to serve food despite a health inspector's direction to close all food service until the furnace was repaired. The manager complained to company officials about the fumes and filed a confidential written complaint with Minnesota Occupational Safety and Health Administration (MOSHA).

The manager remained on sick leave until March 23. Upon her return to work, the company fired her as planned. The manager sued the company, arguing that the company had fired her in retaliation for her complaints about the unsafe conditions. The jury found in favor of the manager, and the appeals court upheld judgment against the company.

Although that may be an extreme example, it illustrates the dilemma that an employer may face. Even though the employer had already decided to fire an employee for poor performance, the appearance of retaliation carries such weight that the employer received a substantial judgment against it because of the intervening safety complaint.

Protected conduct

Were there steps the company could have taken to foster an environment in which the employee would have been free to raise safety concerns directly to company officials and the company could have discharged a poorly performing employee without facing liability? Certainly.

But before deciding on those steps, an employer must be aware of the everyday situations that could raise retaliation concerns. An employer should never, for example, take adverse action against an employee because the employee has participated in protected conduct. An employer also must be cautious when taking adverse action against an employee - even for legitimate reasons - if that employee has recently engaged in protected conduct.

Protected employee conduct falls into three broad categories. Employees are protected for conduct in their personal lives, for concerns they may raise about workplace issues and for cooperation in an investigation of the workplace.

Personal conduct. Employees are protected for choices they make and events that occur in their personal lives. For example, an employee may have the right to take leave from work upon becoming a parent or if a family member becomes ill and needs the employee's help. Employees are protected if they disclose that they regularly consume alcohol in their free time. They have the right to collect workers' compensation if they are injured while on the job. And under new state law, nursing mothers have the right to take reasonable unpaid break time to express milk.

Employee concerns. Employees may raise concerns about workplace issues - for example, about workplace harassment or discrimination based on race, gender or another protected category. They also can raise concerns about health and safety violations or violations of other state or federal laws. Even if the underlying complaint is found to be without merit, the employee who raises a concern in good faith is protected.

Employees are protected if they raise such concerns to anyone in a supervisory role within the organization - whether their own supervisor or another managerial employee - or to an outside agency, such as MOSHA in the example above.

Regardless of the ultimate outcome, the situations can be very difficult to manage. If an investigation confirms that there is a problem in the workplace, the employer has to take immediate steps to rectify it. If an investigation proves the concern to be meritless, the employer will need to deal with the residual emotions of both the accused and the accuser. And the employer must ensure that the complaining employee is not retaliated against.

Cooperation in investigations. Employee complaints may lead to investigations of the workplace, conducted internally or externally. In either circumstance, employees will be asked to cooperate with the investigation. Cooperation can entail speaking with the investigator, answering questions, submitting a statement or any other offering of evidence. If the investigation leads to a hearing or trial, an employee may be a witness in that trial. The employee should be protected from any type of retaliation stemming from cooperation with the investigation.

Adverse employment actions

Workplace retaliation can take many forms. Obvious examples of adverse employment actions include firing or demoting an employee because the individual exercised a protected right. A reduction in benefits also can constitute an adverse employment action. Or retaliation may take the form of transferring the employee to another part of the organization, changing work hours or diminishing the employee's responsibilities. Employers must ensure supervisors understand that threats, harassment, negative evaluations or unwarranted reprimands may constitute retaliation. Difficulties arise when discipline is necessary because an employee has engaged in misconduct -- and also in protected conduct. In imposing discipline, the employer must ensure that there is no connection between the employee's protected conduct and the disciplinary action.

Keeping it separate

A necessary adverse employment action must not be taken as a result of protected conduct. Simply because the adverse action occurs shortly after the protected conduct does not in itself create a connection that will result in liability. If the two events are close in time, however, the employer will want to take extra steps to ensure that the employee cannot point to the protected conduct as the cause of the adverse action. Rather, the employer will need to show that there was a legitimate and nonretaliatory business reason for the action.

Avoiding the appearance of retaliation helps other employees as well, who must feel free to engage in protected conduct, whether taking leave to care for family members or making a complaint. Although no one is happy about a workplace complaint, employees must believe it is permitted. Most employers would prefer to know about problems so as to fix them; they certainly would rather hear the complaint directly from the employee than from an outside agency or by way of a lawsuit. Employers can deal with real workplace problems more effectively if they are the first to be notified and can take immediate action.

Taking immediate steps to address a complaint can protect the employer from the appearance of retaliating through subsequent adverse employment actions.

Other proactive steps include:

• explicitly proscribing retaliation in written employment policies;
  
  
• training all employees on the topic of retaliation and explaining the complaint or grievance procedures;
  
  
• providing special training for all supervisors, explaining the scope of retaliation and describing the type of behavior that is unacceptable in the workplace;
  
  
• communicating openly and frequently with employees who have engaged in any protected conduct; and
  
  
• keeping accurate and complete documentation when an employee engages in protected conduct, faces discipline or has complained of retaliation.
  
  In a climate in which employers fear potential liability and employees fear losing their jobs, an open workplace environment is crucial for heading off problems. And employers who keep themselves informed on what constitutes the appearance of retaliation are going to be in a better position to prevent it.
  
  Susan E. Oliphant is a partner with Minneapolis-based Maslon Edelman Borman & Brand, LLP, conducts employment litigation and practices in medical ethics and related areas. Melissa M. Weldon is a litigation associate and member of the firm's labor and employment team.