A few months ago, one of our employee filed wage claim with the County Commissioner's Office for over time wage. The case has since been resolved now, however the employee now chooses to come to work late, the work ethics and performances are not there anymore, there's constant build up of negativity in the work environment and it is becoming unbearable to keep her in the company. Every time a correctional action is demanded (such as warning for termination if she is constantly late), she gives the same retaliation pitch, "you cannot retaliate against me for filing a wage claim." It's as if she wants to be fired so she can file for retaliation.
At this point she is taking full advantage of the situation, but my question arises as of yesterday, that the employee has posted herself on facebook, quoting “I'm tired of working for and with snakes I don't trust a soul in that place time for a new path.”
Is this enough ground to terminate the employee without legally responsible for retaliation since she is looking for a new path and hates this job? Right now she is scraping by every day getting paid with little work getting done.
Thank you for your help!
You should document these issues properly before firing the employee.
A full consultation would be necessary to properly advise you.
She does not get a free pass because she has made a claim, but you do need to be very careful. These situations are generally only sticky when the employer never used to keep records of peoples performance/tardiness and then suddenly starts keeping track of performance after someone files a claim. If I were you, I would (at the very least) keep track of everyone's conduct/performance for a proper amount of time and make sure you provide the person with warnings IN WRITING and give her an opportunity to cure.
You should engage legal counsel to develop a plan that will not result in another lawsuit. There are many protections over social media posts. Do you have an up to date and compliant social media policy? The one you are quoting may very well be protected speech if deemed to be regarding the employee's wages, hours and working conditions. However, defamation and mere gripes are not protected. Knowing the difference takes an experienced employment attorney. Most of us offer a free consultation. Best of luck to you in this very sticky situation!
This type of situation is always tricky. You can't have 100% assurance that a disgruntled employee won't bring a claim against you after being terminated. Theoretically, any employee can do that regardless of the circumstances of their termination. The question is how strong their case will be v your defense. One option to avoid a claim is to pay an employee a small severance in exchange for that employee sign an release and waiver agreement, in which the employee will be bound not to bring any claims. You should consult with a reputable employment attorney in your geographic area to discuss this and other options.
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