By Chuck Post
Beware. Routine criticisms of job performance when directed to employees engaged in a caring profession, may subject you to retaliation and whistleblower claims.
So you hire an employee, call her a brick layer. She is a horrible brick layer. You get in constant arguments with her concerning the quality of her brick laying. You say that the bricks must be square and aligned and she says, no they look better if they are crooked, uneven and “rustic.” Firing that employee for discharging her duties as a brick layer in a way the employer finds unacceptable is, in almost all cases, a low risk decision. Subjective dislike of an employee’s work performance is a time honored and well recognized “legitimate nondiscriminatory, nonretaliatory,” reason for termination.
But what if you employ professionals engaged in a helping profession (doctors, nurses, teachers, social workers, psychologists, etc.) or professionals engaged in activities that may affect public health (epidemiologists, doctors, certain engineers, etc.)? An employer of teachers who grows unhappy with a teacher’s performance of his teaching duties or an employer of doctors or nurses who grow unhappy with those health professionals discharge of their professional duties may not have the same protections that the employer of the brick layer enjoys. Why? Because California statutes and regulations recognize and protect certain professions against retaliation or interference with such professional work. For example, Business and Professions Code section 2056 protects health practitioners from retaliation for “advocating appropriate medical care,” and numerous regulations and laws similarly protect teachers. California Education Code section 56046 prohibits any employer from taking adverse action against a teacher for having advocated on behalf of a student or assisting parents in seeking or obtaining services or accommodations for students with exceptional needs. Such workers may also have substantial protections under the U.S. Constitution and section 504 of the federal rehabilitation act.
What this means is that employers who employ helping professionals should familiarize themselves with statutes, regulations and laws that may cloak an employee’s disagreement over what to do for their patient, student, or the public with “protected activity” status. Prior to taking any “he/she does a bad job” action against a helping professional or, anyone engaged in compliance activities, employers should carefully scrutinize whether their action could be viewed as interference with an employee’s protected “whistleblower” activities or opposition to improper teaching, medical, or public health activities by the employer.