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Documentation key to post-complaint discipline

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in Employment Law,Human Resources

HR pros often think twice before disciplining an employee who has complained of a serious workplace problem such as sexual harassment. It’s natural to worry about an add-on retaliation claim. But as long as discipline is clearly warranted, don’t second-guess yourself.

The key is to document disciplinary problems at the time the offense occurs. You’ll be in a better position to show that there were legitimate grounds for punishment, and that your motive wasn’t retaliation.

Recent case: Kelly worked as a truck driver. When a co-worker called her a “f***ing bitch” in front of other co-workers and a customer, and then made additional derogatory remarks to the customer, she naturally was offended. Kelly reported the incident to her supervisor the same day. The co-worker was disciplined according to company policy. There is no indication she ever experienced anything so offensive again.

But Kelly racked up a series of disciplinary incidents herself, including several that involved observed unsafe driving and other moving violations resulting in a traffic citation. She had to undergo safety refresher courses and was suspended for several days without pay after one incident.

Kelly sued, alleging all the discipline was punishment for complaining about the co-worker.

But the court tossed out her lawsuit. It reasoned that the dis­­cipline she received was reasonable and related to verifiable safety violations—not retaliation. (Young v. J.B. Hunt Transport, No. 11-5518, ED PA, 2013)

Final note: In this case, the earliest safety incident actually occurred before the alleged har­­assment. That helped show that the later discipline wasn’t re­­lated to Kelly’s complaint, even though many of her offenses happened shortly after she complained.

Plus, the discipline was based on verifiable safety violations and not more subjective assessments, such as insubordination or other attitude-related problems.

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