When an employer seeks the advice of an attorney before they terminate an employee, is this evidence that the termination was motivated by retaliatory intent? A federal case called O’Rourke v. Tiffany and Company recently addressed this very question. In O’Rourke, the plaintiff took leave under the Family and Medical Leave Act (FMLA) to undergo surgery. More than a year later, the plaintiff’s employer decided to terminate the plaintiff as part of a reduction in force, entirely unrelated to her leave. However, just two days later, the plaintiff informed HR that she planned to take additional FMLA leave in the upcoming months. After consulting with an attorney, the employer decided to go through with the decision to eliminate the plaintiff’s position, and her employment was terminated.
The plaintiff filed a lawsuit alleging FMLA retaliation and discrimination under the Americans with Disabilities Act (ADA). In an attempt to demonstrate retaliatory intent, the Plaintiff argued that the employer’s decision to consult with an attorney prior to her termination somehow demonstrated consciousness of wrongdoing. However, the court rejected this argument for two reasons. First, at the time that the employer made the decision to eliminate the plaintiff’s position, she had not yet made her final FMLA request, and a “plaintiff must show that the retaliator knew about [her] FMLA-protected activity [t]o demonstrate that [she] was fired in retaliation.” Second, the court held that “the prudent step of seeking a lawyer’s advice is not the stuff on which a finding of retaliatory intent can be premised.”
The takeaway for employers is clear: do not be afraid to consult with an attorney before terminating an employee and taking any form of adverse action. Not only will this not serve as evidence of retaliatory intent, but it will also help to ensure that all adverse actions are informed and free from any legal complications.