Complaining about things like pay disparities and other alleged acts of discrimination doesn’t make an employee immune from discipline. But if the timing between the complaint and the discipline is too close, watch out for a retaliation lawsuit.
Make sure that doesn’t happen by setting up a process in which disciplinary recommendations are based on an independent investigation. HR should be in charge, with the employee’s supervisors having little or no discretion in the final discipline.
Recent case: Michael Acosta worked for the city of Austin for several years. He complained up the chain of command about what he perceived as pay discrimination based on national origin. Soon after his complaint, he received a written reprimand for horseplay and pranks aimed at other employees.
He claimed the reprimand was retaliation and sued.
But the city showed that his reprimand was based on an independent investigation conducted by an HR manager. She interviewed everyone involved and ultimately recommended reprimands for four employees, including Acosta.
The court said the process the city outlined and used in this case showed there was no intention to punish Acosta for his earlier complaint. (Acosta v. City of Austin, No. 03-08-00788, Court of Appeals of Texas, 2010)
Final note: What constitutes an independent investigation? Start with a neutral party. Then make sure everyone is interviewed and given a chance to tell his or her side of the story. The investigator should be someone familiar with disciplinary actions for similar behavior.
He or she should then base discipline on past decisions, making allowances for the specific facts of the case. Document the entire process each step of the way.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- When employee complains, you must investigate -- but you can insist on a civilized complaint
- Georgia Security and Immigration Compliance Act
- Writing job descriptions: An 8-question checklist
- Alert managers: No 'magic words' needed to request FMLA