A recent decision from the U.S. Court of Appeals for the First Circuit (covering Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) examining retaliatory employment conduct reinforces the advisory nature of the attorney-client relationship, including the protections that come with seeking legal counsel prior to litigation.  In the case, O'Rourke v. Tiffany and Co., the plaintiff claimed that her former employer retaliated against her for exercising her rights under the Family and Medical Leave Act (FMLA) and discriminated against her on the basis of a disability in violation of the Americans with Disabilities Act (ADA), when it eliminated her position.  By way of background, the employee took FMLA leave in 2014 for a surgical procedure, after which the company allowed her to take a second leave even though she had exhausted her FMLA leave.  The following year, Tiffany's decided to eliminate the plaintiff's position, two days before she told human resources that she intended to take FMLA leave in 2016.  Tiffany's elected to proceed with eliminating the employee's position after having internal discussions and consulting with counsel.

The First Circuit, upholding the trial court's grant of summary judgment for the employer, dismissing both claims, concluded that the employee failed to present any evidence that her employer's decision to eliminate her position was motivated by the requisite discriminatory or retaliatory intent necessary to pursue such claims.  Attempting to create a triable issue on the question of unlawful intent, the plaintiff pointed to the undisputed fact that Tiffany's human resources department had consulted with legal counsel after learning of the decision to eliminate the plaintiff's position and of her plan to take further FMLA leave.  According to the employee, the fact that the company sought legal advice could potentially be interpreted as evidence that the company intended to act unlawfully.

The court flatly rejected the plaintiff's contention, reasoning that discriminatory or retaliatory intent on the part of the plaintiff's employer could not be derived from the consultation because “the prudent step of seeking a lawyer's advice” is inconsistent with an unlawful motive.  The First Circuit quoted with approval its earlier decision in another case, Kouvchinov v. Parametric Tech. Corp., in which the court acknowledged, “A personnel officer faced with a novel situation hardly can be faulted for opting to secure the advice of counsel concerning that situation.”

The O'Rourke decision offers a practical reminder for all employers—that seeking advice of counsel prior to deciding whether to terminate an employee can provide meaningful benefits in the moment and down the line.  Apart from avoiding a critical mistake when employment action is taken, speaking with counsel can operate to the employer's advantage in related litigation.  Governing case law, on the whole, recognizes the practical realities facing employers; however, the potential for missteps always exists.

Once an employee engages in protected activity, the employment landscape must be analyzed to ensure that the employer is insulated from liability when taking subsequent action for lawful reasons.  A case must be positioned properly to avoid the appearance of pretext.  Of the many acts which arguably could evidence discriminatory motive, consulting with an attorney generally is not one.  Consultation early on—and throughout—is the best practice when taking employment action.  As this case demonstrates, engaging counsel early in the process can help protect an employer in the event that a formal dispute arises.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.