Head off problem employees’ retaliation suits: Document all decision-making as it happens

Guess which of your employees are among the most likely to file a discrimination complaint, request ADA accommodations or ask for FMLA leave. Those who know they’re in trouble at work.

They think that by doing so, they’ll make you think twice before discharging them.

If that doesn’t keep you from firing them, guess what happens next. They file a retaliation lawsuit, claiming the discharge was retaliation for engaging in so-called protected activity.

Counter those moves by keeping careful records of all your decisions—in real time. That is, document each step of the disciplinary process at the time it occurs. Then you will be able to produce proof that you made your decisions before any protected activity occurred, or that you based your decision on completely independent and legitimate business reasons.

Conversely, nothing looks worse to a judge or jury than records created after the fact or oral testimony about what happened at a meeting years ago.

Recent case: Lee Young worked at the University of North Carolina as a vice chancellor of enrollment and admissions. He was an at-will, nontenured administrator.

When a new chancellor arrived on the scene, she determined that she was not satisfied with Young’s performance, in particular the quality of the students he recruited. She decided to post the job anew, inviting other applicants (as well as Young) to apply.

Young applied, but the selection committee informed him soon after that he would not be offered an interview.

Young then told the chancellor and HR that he was going out on FMLA leave. The university approved his request. However, he was terminated before his leave ended and replaced by one of the other applicants.

Young sued, alleging retaliation for taking FMLA leave. But the university had clear documentation showing it made the decision to repost the position and not to interview Young before he asked for FMLA leave.

The court quickly dismissed Young’s case, reasoning that it’s impossible to retaliate against an action that has not yet occurred. (Young v. North Carolina Agricultural and Technical University, et al., No. 1:08-CV-894, MD NC, 2011)

Final note: The best approach to documentation is to establish a clear process that everyone must follow. Consider developing a simple checklist—including dates and space for notes—for each employment decision. The completed checklist should then be placed in each affected employee’s personnel file, as well as in a central repository.

For example, when opening up a position, make note of the reason. Date the notation. Then check off each stage of the recruiting and hiring process, such as when and where the position was posted, when each applicant applied and the date and a summary of all interviews. Note the who, what, when and how of the final selection decision.

Follow the same steps for all disciplinary decisions, too.

Added benefit: This makes it easy for HR to audit the process for fairness and lack of bias. Plus, all relevant information will be easily accessible.