3 Mistakes to Avoid to Prevent Retaliation Allegations

Employers have the unpleasant responsibility of disciplining their workers. Ideally, discipline would never be necessary, but it is often necessary (e.g., because of excessive absenteeism, insubordination, or other employee abuses) to take adverse action against the worker to ensure the continued smooth operation of the business.

Before taking action, however, the wise employer will think carefully about how to proceed. In some cases, firing, demoting or otherwise punishing an employee could trigger allegations of retaliation and a wrongful termination lawsuit.

To protect against these types of claims, employers should consider the following:

1. Keep emotions out of your decisions. While you may be upset about an employee’s misconduct, reacting negatively in the heat of the moment could lead to a retaliation claim, particularly if the employee has recently come back from leave, filed a safety report with OSHA, refused to follow a directive they felt was illegal, or exercised some other right. Instead, stay calm, take a step back and focus on the situation, rather than on the employee. Now would also be a good time to consult with an attorney about how to best address disciplinary measures given the greater context.
2. Talk to managers and make sure everyone is on the same page. Employers can be responsible for the decisions their managers make. As such, proper training and guidance can ensure managers do not make ill-advised employment decisions.
3. Don’t fabricate information or lie. Attempting to justify a demotion, relocation, firing, or pay cuts with fabricated or inaccurate claims against an employee is never a good idea. Doing so can further motivate an employee to take legal action. Instead, make employment decisions based on facts. And maintain accurate records in the employee’s personnel file to defend against any retaliation claim.

Know your legal options

Employers have rights when it comes to managing their workforce. But employees have rights, too. When it comes to disciplining or dismissing an employee, employers must be sure they do so without violating those rights established by state and federal laws.

If you have any questions or concerns about taking adverse action against an employee, it can be prudent to consult an attorney before making a mistake you later regret.