Every day we talk to employees who have been fired after going to human resources (“HR”) for help and want to pursue a wrongful termination claim against their employer. Unfortunately, Ohio has employment at-will, which means that your employer can fire you at any time, for any reason.
1. HR is there to protect the company
The first thing you must understand is that the HR team is hired by the company to minimize the company’s exposure to potential lawsuits from employees like you. HR is typically made up of a team of seasoned professionals with knowledge of state and federal laws, including the Family and Medical Leave Act (“FMLA”), Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), the Equal Pay Act of 1963 (“EPA”), the Age Discrimination in Employment Act of 1967 (“ADEA”), and the Fair Labor Standards Act (“FLSA”). HR is there to ensure the company is complying with these laws.
2. It is not unlawful to be a jerk
If your boss is a jerk and you go to HR to complain about him or her, he or she will probably fire you. It makes sense that if your boss is a jerk, your boss will fire you for complaining, because that is what a jerk would do. Similarly, it is not unlawful to be “a bully”, “disrespectful”, or “unprofessional”. If your boss (or co-worker) is any of these things, then complain to your friends, not HR. Remember, HR is there to ensure the company is complying with state and federal laws. Unfortunately, there are no laws against being a workplace jerk or bully at this time.
3. Only certain complaints are protected
Certain complaints (to HR or a superior) are considered “protected activity” and it is unlawful for your employer to retaliate against you for engaging in protected activity. This would include any complaint of discrimination based on age, race, gender, sex, national origin, religion, or disability. The discrimination you report does not have to be against you, complaints of any unlawful discrimination in the workplace are protected. In addition, other reports such as minimum wage and overtime violations, workplace felonies, or dangers to public safety are also protected. The complaint of discrimination must clearly state the basis of the discrimination. For example, if you are the only woman in your department, you cannot complain of discrimination and assume that HR will understand it to be a complaint of gender discrimination. You must specifically state that you believe you are being treated differently than your peers because you are a woman or because of your gender. Other complaints, such as “my boss is a jerk” is not protected activity, and it is not unlawful for your employer to terminate you for making these complaints.
4. Company policy is not the law
Company polices are in place in an attempt to ensure compliance with the law. However, company policy is not the law. If you believe that the company is not complying with their own policy and you complain to HR, that complaint will not be protected unless you complain that the policy is being applied in a discriminatory manner. As noted in the third rule, for the complaint of discrimination to be protected, you must say that it is discrimination based on age, race, gender, sex, national origin, religion, or disability. A complaint that a company policy is merely being applied unfairly is not protected activity. Moreover, if a company terminates you in a way that is inconsistent with company policy, such as not giving a written warning, that alone is not unlawful.
5. Put it in writing
If you are going to complain about workplace discrimination based on age, race, gender, sex, national origin, religion, or disability make sure you put it in writing. In the event that you have a retaliation complain to pursue, a written record is the easiest way to prove that you engaged in protected activity. The writing does not need to be a formal, signed writing. A simple email or text message is enough to prove that you indeed complained. Although there are no magic words to invoke the status of protected activity, recall that you must clearly state the basis of the discrimination.
When in doubt, call an attorney first. The company has HR on its side, you should have someone on yours.