Monday, January 4, 2010

Lessons from (a) Leach – retaliation for talking to an attorney is a no-no

One of big stories that broke while I was off last week was the firing of Texas Tech head football coach Mike Leach. The university initially suspended Leech after a player accused him of locking him in a closet following a concussion. The school later changed the suspension to a termination after Leach filed a lawsuit seeking a restraining order to allow him to coach in the team’s bowl game.

In Ohio, Texas Tech’s actions could lead to a wrongful discharge claim, provided that the employee is at-will. Ohio law does not allow an at-will employee to be fired solely for consulting an attorney. Ohio law also does not allow an employee to be fired for filing a lawsuit. While an at-will employee generally can be fired for any reason or no reason, an exception exists when the termination jeopardizes a clear public policy. Access to legal services and access to the courts are such public policies.

What does this mean for employers? Simply that you cannot terminate an employee who you suspect may be consulting with counsel. These employees are protected as if they had come to you directly with a complaint about harassment or discrimination, or engaged in any other protected activity.

Come back tomorrow as we take this question to the next level, and answer the question of what happens when an employee asks to have counsel present at a disciplinary or termination meeting.