An employee reported his boss for (Occupational Safety and Health Administration) violations and we started investigating. We found the violation wasn’t serious, and only a small corrective action was taken. However, the boss came to me with a diary he found in the employee’s office. This journal contained some thoughts about his female coworkers that would trigger all sorts of #MeToo issues if they were read aloud at a staff meeting. The employee, as far as I know, has never behaved inappropriately. The boss wants to fire him, insisting this journal proves the employee is a sexual harasser and discriminator. It makes me nervous. Can we terminate him for this?

Everything about this situation makes me nervous! 

California, like all states except Montana, has at-will employment, so you can fire someone because you think he might at some point harass someone. You can fire him for wearing mismatched shoes. But what you can’t do is fire him because he filed an OSHA complaint and blame it on his diary.

Unless this manager has a habit of going into everyone’s office and reading diaries, it looks very much like this manager is retaliating against the employee for filing the complaint. Under California law, your employee is most likely protected by whistleblower protection laws, and if you fire him, I’d advise him to hire a lawyer and pursue this as illegal retaliation.

Lots of companies get into these problems. It’s not the original violation that lands you in court but the retaliation. In fact, the Equal Employment Opportunity Commission reports that more than 50 percent of discrimination lawsuits contain a retaliation charge. While this isn’t a case of illegal discrimination but whistleblowing, the same principles apply. You never punish an employee for making a protected complaint. If this employee had pointed out what he thought was a violation and it turned out it was not, you still don’t want to punish him. As long as he acted in good faith, you need to respond in good faith.

While it was embarrassing to the manager, knowing about problems as soon as possible is behavior you want to encourage. And remember, punishment can come in ways other than formal discipline or termination. Searching through someone’s office or giving someone less-desirable shifts or skipping someone over for a promotion can be forms of illegal retaliation.

Here’s what I suggest you do.

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First, meet with the manager and explain he is not to search through the employee’s papers seeking dirt to punish him and that doing so for this employee probably violated the law and put the company at risk. The manager made a mistake with the health and safety of his employees, customers or the public (depending on the nature of the OSHA charge), and he needs to take his lumps for that. He should be thanking the employee who brought the mistake to everyone’s attention before it became a serious mistake or an OSHA inspector dropped in.

But what to do about the employee? Even though the manager’s actions could be considered illegal retaliation, you now know that this employee has, at minimum, done something stupid by putting this stuff in writing and leaving it in the office. Stupid acts don’t always happen in a vacuum, and now that HR knows about them, it is obligated to investigate. I asked employment attorney and HR consultant Kate Bischoff for her advice. She says, “I would chat with the female staff members — tiptoe around whether he has been inappropriate. If nothing, tell him his writing hobby should stay at home.”

And that seems fair to everyone. You, of course, know that just because no one has made a complaint doesn’t mean he’s innocent of any wrongdoing. He probably is, but it’s best to double-check. The tiptoeing is necessary to help prevent additional retaliation accusations. 

It’s important the employee understands this type of stuff does not belong in the office. We don’t ever want to get into the situation of monitoring employee thoughts, but when you leave those thoughts at the office, it’s a bit dangerous. Just like you should keep your personal internet surfing habits on your personal computer rather than your company laptop, you should keep personal diaries at home.

It’s also not a bad time to remind all managers about retaliation and how it is never appropriate. Many of them probably haven’t ever thought about it, so make sure you train them properly. Don’t make your employees unhappy and put your business at legal risk by allowing retaliation.

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