Effective documentation can protect you. With discrimination and retaliation charges on the rise – retaliation claims have risen by 50 percent since 2006 – employers have to be more careful than ever to ensure that employee disciplinary actions are well-documented and have a sound business basis. This effective documentation can be your defense against a retaliation claim.
Beware of Retaliation Claims in Employee Discipline Situations
"Any time you have somebody who engaged in protected activity and there is an adverse action following that, there is trouble." Kimberly A. Klimczuk explained in a recent BLR webinar. Employers should use a double dose of caution when employees seek accommodations, claim discrimination, complain about harassment, suffer a work-related injury, complain about an unsafe workplace, etc.
Any of these protected activities can give employees a scapegoat if they are later disciplined for an unrelated reason. Employees in this situation may run for cover by claiming protected conduct; they may claim that the adverse action was taken as a retaliatory measure rather than for the stated reasons.
One way to combat this is with effective documentation and appropriate discipline. "This [appropriateness] goes both ways – not only just making sure that the discipline is appropriate to the misconduct and no greater, but also making sure that you are not letting things slide because somebody has filed a complaint." Klimczuk explained. If you wait too long and the conduct worsens, you may be faced with a termination situation without documented discipline or warnings along the way – which will ultimately look much worse than disciplining an employee for misconduct when it occurs.
Fairness, Consistency, Business-Based Reasons, and Effective Documentation
There are four basic concepts when dealing with discipline or termination:
- Fairness. While what is legal and what is fair are not necessarily the same, jurors are often influenced by perceived fairness of a situation, regardless of the legality of the situation.
- Consistency. One of the easiest ways to subject yourself to claims of discrimination is to treat some people differently than others. "If you can show that you consistently disciplined for certain violations, that goes a long way in defending against claims of discrimination, retaliation, etc." Klimczuk noted.
- Business-based reasons. Even with at-will employment – which states that you don’t need a reason to terminate an employee – employers should be careful. If you want to show that your reason is non-discriminatory, it is better to have a business-based reason for your actions.
- Effective documentation establishing the first three concepts. Klimczuk confirmed that employers need to have effective "documentation that reflects that what you have done is fair, that it’s consistent with what you have done with other people, and that the reasons for the actions are business-based."
For more information on the importance of effective documentation in employee discipline, order the webinar recording of "Documentation Tips for HR: Reduce Your Legal Risks with Effective Drafting Strategies." To register for a future webinar, visit http://catalog.blr.com/audio.
Attorney Kimberly A. Klimczuk is a partner with Skoler, Abbot & Presser, P.C. Her practice is concentrated in labor law and employment litigation. She has successfully defended clients in a variety of areas of employment law, including wage/hour law, discrimination, harassment, wrongful discharge, breach of contract, and workers’ compensation claims.