The DIY Lawyer on Your Payroll – Helping a Coworker and Shielded from Retaliation

 

When an employee moonlights as a coworker’s unofficial lawyer – researching the law, contacting HR, and encouraging her to find a lawyer and pursue a charge with the EEOC – that role might be protected from retaliation. Overlook that and you could be handing them a legal claim.

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TL;DR: One employee went beyond watercooler sympathy and became her coworker’s unofficial legal advocate – researching the law, pushing HR, filing internal complaints, and urging an EEOC charge. That coworker had a an accommodation that exempted her from overtime work, which a supervisor revoked. Weeks later, the “helper” was fired for alleged timecard falsification. A federal appeals court said her advocacy was protected activity and revived her retaliation claim under the “cat’s paw” theory, meaning a biased supervisor’s actions can taint even a higher-up’s decision.
Read the full opinion here.

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What Happened When the DIY Lawyer Went to Work

An employee’s coworker had an ADA accommodation that exempted her from working overtime. But the coworker’s supervisor revoked it, put her on leave, and incorrectly told her she had no remaining FMLA time.

The employee jumped in:

• Researched ADA law and company policies.
• Contacted HR for information.
• Filed an internal complaint against the supervisor.
• Encouraged her coworker to get a lawyer and file an EEOC charge.

The coworker told the supervisor she was getting help from the employee. Soon after, while covering for the employee’s regular manager, that supervisor scrutinized her time records and flagged discrepancies. He reported her to HR, describing it as an “integrity” problem. Meanwhile, the supervisor characterized a similar issue by another employee as a simple “performance” problem and coached her.

HR investigated, found more issues, and fired the employee for falsifying time records. The Sixth Circuit agreed that helping a coworker with a disability can be protected activity under the ADA. The court also said there was enough evidence for a jury to find that the supervisor’s actions, including selective reporting, influenced the termination decision under the “cat’s paw” theory.

How Employers Can Avoid Stepping on a Landmine

• Helping others counts. Forget about the plaintiff’s internal complaint. Retaliation claims can arise from adverse actions against employees who merely assist others.
• Watch for changes in oversight. When supervisory responsibility shifts – even briefly – it can create an opening for bias to influence decisions. Have procedures for reviewing significant actions taken by temporary or fill-in supervisors before they become final.
• Watch for selective enforcement. Singling out one employee for conduct common to others is a red flag for retaliation.
• Apply policy labels consistently. If your rules treat certain infractions the same, don’t call one a minor “performance” issue and another an “integrity” violation when the conduct is identical — inconsistent labeling can be strong evidence of retaliation.
• Investigate bias claims, too. If retaliation is alleged during an internal investigation, examine and document that claim alongside the original allegation. Ignoring it will be used against you.

Bottom line: The DIY lawyer in your office might not have a law degree, but they can still have legal protections. Handle them as carefully as the original complainant.