Post-Employment Retaliation

Ready to move on, the employee begins applying for new positions, but cannot gain any traction. She learns that, in addition to informing potential employers about the RIF, ABC Corp. has falsely criticized the employee's performance. The employee later learns that her security clearance is in jeopardy because ABC provided misleading information to the Department of Defense (DOD). Next, the employee receives a 1099 in the mail in which ABC attributes to her as earned income the costs of the pre-RIF attempt at dispute resolution. Finally, ABC serves the employee with a multi-count complaint alleging violation of trade secrets, conversion, tortious interference, and other baseless causes of action.

From the perspective of employee counsel, it is important to understand how to proceed given this hypothetical but plausible scenario. The kitchen-sink approach is available ' allege everything and fight for each claim to the bitter end. But that is a costly proposition for the client and time consuming for the attorney. The better approach, in our estimation, is to focus your efforts on only those claims, and identify only those acts by the employer, that a court is likely to find “adverse actions” under the applicable statute. In addition to saving you time and your client money, this strategy will ultimately help to establish your credibility with the court.