HR Inconsistency and Retaliation—Lawsuit Magnets
Follow Disciplinary Procedures
If you conduct an investigation and you find that an employee has violated the law or your employment policies, you need to follow your general disciplinary policies and procedures in meting out punishment.
Your disciplinary systems should:
- Ensure that the appropriate discipline is applied (the punishment fits the crime).
- Ensure that discipline is consistent for all employees.
- Give employees fair warning that they have violated company policies.
- Give employees a chance to improve.
- Create a paper trail of evidence to show what the employee did and how you responded.
Make sure you follow your discipline system consistently. Disciplining some employees but not others for the same types of problems is just asking for a discrimination claim.
Watch Out for Retaliation
Almost all of the federal employment laws prohibit retaliation against employees who exercise their rights under those laws. That includes the employment discrimination statutes as well as other laws granting protections to employees, such as the Family and Medical Leave Act, the Fair Labor Standards Act, and many others.
In general, retaliation is any adverse action that’s taken against an employee for filing a complaint, supporting another employee’s complaint, or otherwise asserting the employee’s rights under a federal employment law. In the context of firing, the most common type of retaliation claim involves an employee who alleges he or she was fired for complaining about harassment or discrimination.
Before making a final decision to fire someone, it’s helpful to step away for a moment to take a look at the big picture. Ask yourself if there’s any chance that you’re firing the employee for some reason other than the one you claim. Is the employee being treated differently from other employees with similar performance or misconduct deficits? If so, why? Is there anyone in the company who will be glad to see the employee go? If so, why? If the underlying reason for their feelings is discrimination or retaliation and they had any influence in the firing decision, you could be in big trouble.
What if you make the wrong decision? A growing number of courts say that when an employee claims he was wrongfully discharged for misconduct, the issue isn’t whether he’s guilty but whether you reasonably believed he was guilty. As long as your investigation was fair and your conclusion reasonable, you’ll be protected from liability even if you were wrong.
No matter how diligently you follow your disciplinary procedures, no matter how honest and fair your evaluations, it won’t mean much in court without clear documentation to support your decision.