Trouble in the Family: Employee Complaints and Retaliation
Published courtesy of Thompson Publishing. The following article will appear in Thompson Publishing legal publications in March 2008.
"[A]s a matter of business judgment there can be only one course open to management when an employee persists in giving it the finger." Liberty Mutual Ins. Co. v. NLRB, 592 F.2d 595, 6060 (1st Cir. 1979) (Aldrich, J., concurring).
This observation embodies a typical reaction to employee complaints, but the conventional wisdom it reflects is no longer legally wise. The law bristles with protections of so-called whistleblowers—those hardy souls who defy their employers by reporting perceived problems, internally or externally; legislatures are fond of conferring rights and remedies for those who might be targets for retaliation, and the judiciary may fill in the blanks. As a result, the Fourth Circuit's recent decision in Darveau v. Detecon Inc. (No. 06-2092, Jan. 31, 2008) should come as no surprise.