With the continued increase in employee based lawsuits (the Equal Employment Opportunity Commission filed 50% more sexual harassment lawsuits in 2018 over 2017) employers must be prepared to mitigate these risks. Any mitigation begins and ends with proactive policies that are consistently followed and provide for robust investigation and reporting mechanisms.
One of the most common challenges is how to discipline an employee that recently made a “protected complaint” (e.g. complaints of discrimination, requests FMLA leave, requests disability accommodations). Once an employee makes a protected complaint any discipline thereafter is subject to an argument that the discipline was retaliatory. Protected complaints are unique because the complaint is often not in dispute and sets a placeholder in a timeline that may presume retaliation. Unfortunately, courts have allowed claims to move forward largely because of the temporal proximity of the complaint and the discipline at issue.
Have Legitimate Business Reasons to Support Any Discipline
When terminating any employee, but particularly those that have made a protected complaint, it is imperative that the employer clearly document the reason it is making the decision to issue its discipline. Furthermore, when issuing the discipline the reason should be clearly communicated and given to the employee in writing.
It is important to distinguish between an employee who isn’t doing a good job and an employee who is engaging in misconduct. Discipline about job performance is invariably subject to an attack as being retaliatory because it is often subjective. The key is to focus on issuing discipline for misconduct or acts within the control of the employee. Examples include:
- Disclosing trade secrets or confidential information (e.g. to their personal email, or cloud based services, such as Dropbox)
- Failing to meet written objectives (sales goals, deadlines, etc.)
- Manipulating time records or client records
- Unauthorized use of business vehicles or other property
- Falsifying an employee’s application or other employment history
Communicate the Discipline
Once the reasons for issuing the discipline have been documented it is important to set up a face-to-face conversation with the employee to communicate the discipline. Employees often believe discipline is retaliation because the employer never took the time to explain the reason it was issuing the discipline. Have a plan for that meeting and stick to that plan: (1) communicate the discipline; and (2) communicate the reason. It’s not an opportunity for the employee to plead their case or make an argument. At the end of the meeting the employee should be asked to sign a document confirming that they were told about the discipline (not that they agreed) and the business reason for issuing the discipline. This document should be concise and written in “plain language” and the employee should receive a copy. Any documents related to the discipline would be added to the employee’s personnel file.
Working with Your Employment Lawyer
If there is any doubt about issuing discipline to an employee (for whatever reason, but particularly when he/she is a member of a protected class) it is important to work with your team to develop a process, practice and program that everyone will follow. Retaliation claims can often be mitigated by taking proactive steps before issuing discipline. A key member of that team is an employment lawyer who can review and advise on best practices and moving forward with this decision.
If you have any questions regarding employment issues, please contact Walker R. Lawrence, or any of our lawyers in our employment law practice at Levin Ginsburg at 312-368-0100. You may reach Walker directly via email at firstname.lastname@example.org