You finally have decided to take the long overdue disciplinary action. Just before you do, the employee to be disciplined, possibly sensing what's about to happen, makes a complaint of harassment.
This is the first you've heard of this problem. Is the
complaint legitimate? What do you do?
Continue with the planned disciplinary action? Put your decision
on hold while you investigate? Will it look retaliation if you
proceed with the discipline?
Which issue came first is important
On the one hand, employers have the right to take disciplinary
action. On the other hand, employees have the right to make good
faith complaints about what they believe is unlawful conduct
without fear of reprisal.
In situations such as the one described above, the issue will be
which came first – the decision to take disciplinary action
or the complaint of harassment.
To further the purpose of protecting employees' rights, most
labor and employment laws have "anti-retaliation"
provisions that protect employees' rights to voice concerns or
make good faith complaints about conduct or actions they believe to
be inconsistent with legal standards and requirements.
For example, the anti-discrimination laws protect employees'
rights to complain about harassment and discrimination, to
participate in an investigation of a complaint, to oppose
harassment and discrimination and to file a charge or a lawsuit
without fear of reprisal. Likewise, OSHA and similar state safety
laws protect employees' right to raise concerns about safety
issues.
Federal and state wage and hour laws protect employees' rights
to raise certain concerns related to pay practices. Leave laws
protect employees from retaliation for exercising their rights to
request or take leave. Even the bankruptcy code includes an
anti-retaliation provision that in some circumstances protects
employees who file for bankruptcy protection.
Because these laws protect employees' rights to raise concerns
and take others actions, an employee who raises a concern under one
of these laws is deemed to have engaged in "protected
activity."
Retaliation after engaging in a protected activity
The employee in the hypothetical above engaged in protected
activity when she complained about harassment. Retaliation occurs when an employer takes an
adverse employment action against an employee because the employee
engaged in protected activity.
Thus, if the employee in the hypothetical above establishes that
her employer disciplined her because she complained, her
retaliation claim likely will succeed. Adverse employment actions
may take the form of discipline, discharge, denial of a promotion,
transfer, raise or other benefit, and pay cuts as well other
employer actions that may have an adverse effect on the employee
who engaged in protected activity.
In many cases, the timing of the adverse employment action usually
is the employee's best evidence of retaliation.
By way of example, a productive employee has an attendance
problem, but the employer has never formally disciplined the
employee. In July, the employee complained about sexual comments by
her manager and co-workers viewing porn at work (protected
activity).
In August, the employer terminated the employee for excessive
absenteeism (adverse employment action). The employee alleges that
her termination was in retaliation for her July complaints, even
though her poor attendance record is irrefutable.
Her theory is that her attendance was not problem for her employer
until she made her complaint. She also may be able to bolster her
claim with evidence that other employees with comparable attendance
records who had not made a complaint were not terminated.
A rising number of retaliation cases
Retaliation claims are on the rise. In each of the last three
years, there were more retaliation charges filed with the EEOC than
any other type of charge.
In most cases, the retaliation charge or lawsuit also includes a
claim or claims of discrimination, harassment or some other alleged
unlawful actions by employer. The charge or complaint may allege
that the retaliation occurred in response to the employee's
complaint about the underlying conduct believed to be
unlawful.
Even if the employee does not prevail on the underlying claims of
unlawful conduct, the employee may still prevail on her retaliation
claim if she can show that her employer took the adverse action
against her for engaging in protected activity.
To avoid these difficult and hard-to-defend cases, many employers
consider employees who have engaged in protected activity to be
somewhat "bulletproof" when it comes to taking
disciplinary action against them.
In these situations, even before taking a legitimate disciplinary
action, prudent employers will carefully consider whether they can
convince the EEOC or a jury or an arbitrator that the
disciplinary action had nothing to do with the employee's
exercise of her protected rights.
Questions you need to ask
Issues to consider are what actions the employer has taken in the
past under circumstances such as these:
- Have all employees with the complaining employee's performance or conduct issues been treated the same way?
- Are there established policies and practices that have been violated?
- Is there documentation of disciplinary actions that occurred before the protected activity?
- Would the planned disciplinary action seem to an outsider to be the next logical step considering everything?
If the answer is "yes" to all these questions, the
risk of a retaliation is lessened but not eliminated. In close
calls, smart employers pull back and wait until next time.
So, what about the employee above who seemingly made a protected
complaint in anticipation of disciplinary action? We don't know
without more background facts.
Documenting helps lessens the risk
But one way to lessen the risk in situations such as this is to
document the decision as soon as it is finalized and before
it's communicated. The employee's manager can send a simple
email to the Human Resources Department or vice versa informing the
recipient of the planned disciplinary action and the timing of same
before the manager meets with the employee.
This simple step should resolve the eternal issue of which came
first – as this in this case.
The article appeared on June 3, 2014 on TLNT.com.
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.