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Sep 10, 2015

By Eric B. Meyer

Firing an employee for complaining on Facebook about discrimination = retaliation.

And when the employer practically admits as much at a deposition = hella-stupid retaliation.

Yet, that’s what apparently happened, as described in the recent Michigan federal court decision in Brown v. Oakland County.

Brown v. Oakland County involves an employee who never made it out of her probationary period. (Don’t get me started on probationary periods, but I’ll save that for another post). The employer claimed that it terminated Ms. Brown because of performance-related and other personality issues affecting the workplace. Ms. Brown disagreed and checked a bunch of boxes on an EEOC charge (age, race, retaliation).

Timing is everything

To support her claims of discrimination, Ms. Brown noted that, just nine days prior to her termination, Ms. Brown’s direct supervisor scored her “Outstanding or Above Average” in all categories of a Performance Appraisal.

Let’s stop right there for a second.

Seriously? For God’s sake, if your employee scores “Outstanding or Above Average” in all categories of a Performance Appraisal within nine days of when you are considering her for termination, you’d better have a really compelling reason to follow through with the firing. Compelling like, two days after her glowing review, your employee celebrated by launching bottle rockets out of her butt at the CEO. Otherwise…

That’s not the half of it

OK, practically admitting to retaliation might be everything, too.

You see, the company admitted — the decision maker literally testified at her deposition — that the plaintiff’s posts on Facebook about how she felt that she was being discriminated against at work based on her age played a role in her firing.

That’s bad.

Tips for employers

If it appears as though a newly-hired employee isn’t working out, before you pull the trigger on a termination, make sure you’ve conducted some due diligence first, such as:

  • Talk to the employee’s manager;
  • Make sure that the reason(s) for termination are supported with documentation; and,
  • Confirm that there is no recent documentation that would undermine whatever reason(s) you have for firing the employee

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.