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In the new age of the whistleblower, an employment lawyer who one day advises on a routine employee discipline or discharge may the next day find him- or herself directing a multi-disciplinary investigation of alleged corporate malfeasance, guiding a team of forensic accountants, private investigators, and public relations experts.

Employment lawyers have long understood that they need to look behind complaints that an employee has a “bad attitude,” since a nonspecific, highly subjective criticism of this nature may not tell the whole story. In determining the risk of taking disciplinary action against an employee — and particularly with regard to an employee who is protected by the array of federal, state, and local employment discrimination laws — we look for objective information that evidences specific difficulties with the employee’s job performance. With only an amorphous claim about “attitude” and without solid, objective evidence, there is a risk that the employee may be able to claim that the real reason he or she is being disciplined is his or her protected status, not job performance problems.

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