The previous month's sales numbers are final and Jane's
sales are abysmal...again. You've had enough and decide to fire
her. You call HR to get the paperwork started. Your HR manager
tells you that Jane has just left her office after complaining that
she never gets house deals, she's forced to split her deals
with the guys, and the desk regularly rejects her deals which
results in her having low sales.
She also complained that the desk managers are always hitting on
her, talking about sexual topics, and looking at porn on their
phones. Your first thought is that Jane only complained because she
knew she was about to be fired. After all, given how much she talks
about sex at work and the language she uses, there is no way she
was offended.
Should you go through with the termination – or put the
brakes on? Can employees anticipating or expecting
disciplinary action protect their jobs by engaging in protected
activity before the ax falls? Maybe. Even though you have the right
to take legitimate disciplinary action, doing so around the time an
employee engages in "protected activity" creates a
significant risk of giving rise to a retaliation claim.
Our advice? Use caution.
The Importance Of Proving "Why"
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. Whistleblower
protection provisions related to financial dealings are becoming
more prevalent.
Employees who raise concerns or make good-faith complaints about
conduct inconsistent with legal requirements and those who exercise
their rights under these laws (e.g., FMLA) are
engaging in protected activity. In other words, they are
doing something the law protects their right to do. But
remember that these laws provide protections for employees who
suffer adverse employment actions because they engaged in
protected activity. Laws do not protect employees from the
legitimate consequences of their own misconduct or their poor
performance.
Adverse employment actions may take the form of discipline,
discharge, denial of a promotion, transfer, raise or other benefit,
and pay cuts, as well as other employer actions that may have an
adverse effect on the employee for exercising a legally protected
right.
Timing Is Everything
Many times, timing is the employee's best evidence of
retaliation. In the example above, Jane engaged in protected
activity when she complained to HR about discrimination and
harassment. Although you had decided to terminate her before you
knew that she had done so, the timing of the termination is almost
guaranteed to result in claims of discrimination and
harassment.
She may argue that her sales were not a problem for you until she
complained or that others (males and non-complainers) have had
similar sales numbers and were not fired. You could win on her
underlying claims, i.e. prove that there was no
discrimination or harassment, but still lose the retaliation claim
if the facts show or suggest retaliation. Remember, it's not
your intent but what you can prove that wins the
day.
To lower the risk of a retaliation claim, many employers treat
employees who have engaged in protected activity as somewhat
"bulletproof" for purposes of disciplinary action, at
least temporarily. Before taking action, evaluate whether you can
convince a skeptical third party – the EEOC, a jury, or an
arbitrator – that the disciplinary action was unrelated to
the protected activity.
Review your previous actions under similar circumstances, how you
have treated other employees who had similar performance or conduct
issues, and whether you can show that this employee violated an
established policy and practice. Confirm the existence of proper
documentation and ask yourself whether, after considering
everything, an outsider would think that the planned disciplinary
action is the next logical step. If the results of this informal
review are "positive" for going forward, take your foot
off the brake. The risk of a retaliation claim is lessened
– but not eliminated. In close calls, smart employers pull
back and wait until next time.
Employers must also consider whether they can prove they made the
adverse action decision before the employee engaged in protected
activity. One preventive measure that you can take is to document
the intent to take the action before doing so. This can be as
simple as sending an email to HR or vice versa informing the
recipient the specified disciplinary action is planned, and
verifies that the timing is before the manager meets with the
employee. This "paper trail" will establish that you
decided to take the disciplinary action before you were aware of
the protected activity.
The Bottom Line
The risk of a retaliation claim is real. In each of the last three years, there were more retaliation charges filed with the EEOC than any other type of charge. By taking consistent actions and proceeding with caution after an employee engages in protected activity – which sometimes means having to put on the brakes – employers can lower the risk of retaliation claims.
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.