An employee complained about workplace conditions but had ongoing performance issues before and after the complaint. Can I still discipline the employee despite the complaint?
Yes, you can discipline the employee for legitimate business reasons, such as poor performance, if doing so is unrelated to their making a complaint. You should take steps, however, to ensure your actions are fair, consistent, and don’t appear retaliatory.
Avoid Retaliation
Retaliation occurs when an employer takes adverse employment action against an employee for exercising their rights under the law — otherwise known as a protected activity.
Protected activities include actions like reporting discrimination, harassment, wage issues, or unsafe working conditions. On the other hand, general complaints about workload or personal disagreements don’t typically qualify.
Accordingly, if your employee’s complaint was a protected activity, the risk of a disciplinary action being seen as retaliation is high.
To complicate matters, in California, as of January 1, 2024, any adverse action taken against an employee within 90 days of the employee’s protected activity is presumed to be retaliatory.
In other words, state law assumes that your disciplinary action taken after the employee complained is unlawful unless proven otherwise. You can overcome this presumption by demonstrating a legitimate, nonretaliatory reason for the action.
Therefore, although discipline is allowed within the 90-day window, your action requires careful consideration. A clear and consistent process, supported by detailed documentation, can help overcome the presumption of retaliation, which otherwise could result in costly litigation.
Although avoiding retaliation is key, it is just as important to handle disciplinary actions consistently.
Consistency Is Critical
Apply your disciplinary policies consistently to all employees, regardless of whether they’ve made a complaint. Following a consistent process may help you overcome any presumption of retaliation as well as complaints of disparate treatment from other employees.
One way to assess your motives is to ask yourself how you would treat other employees having similar performance problems but who haven’t engaged in a protected activity. If you would issue a warning or start a performance improvement plan (PIP), do the same here. Treating an employee differently because of their complaint could be considered retaliation.
If other employees with similar performance issues have faced similar consequences, documented proof of consistent treatment can demonstrate further that your decision is based on performance, not the employee’s complaint.
Documentation Is Key
If you haven’t already, start documenting every instance of an employee’s poor performance. Ideally, you want documentation showing that performance problems existed before the complaint. This establishes a clear record that disciplinary actions are due to ongoing issues, not the complaint itself.
Many employers overlook the importance of documenting performance issues from the start and end up documenting issues only after an employee complains. This can create the appearance of retaliation, as the timing of the documentation coming immediately after the complaint may seem suspicious.
To avoid bad timing, document issues as they arise to demonstrate that your actions are based on legitimate business reasons, not the employee’s protected activity.
If the employee’s performance issues continue after their complaint, continue to document those issues. Be specific about dates, instances, and any efforts to help the employee improve.
Well-documented records can help show that you’re handling the situation fairly and consistently. Also consider whether any additional support, such as coaching or mentoring, might help the employee improve. Showing a genuine effort to help the employee succeed reinforces that any disciplinary action is based on performance rather than their complaint.
By being consistent, documenting thoroughly, and following a clear process, you can address performance issues while minimizing the risk of retaliation claims.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
