Five ways to protect yourself from retaliation claims

On Behalf of | Oct 19, 2021 | Employment Litigation |

Claims of wrongful termination and retaliation can be seriously damaging to your business. While you certainly might end up facing a big judgment against you if you’re found to have wrongfully terminated or otherwise retaliated against an employee, you can also see collateral consequences, such as future claims and harm to your business’s reputation. That might leave you on edge, but there are things that you can do to help protect yourself as an employer.

What does the employee have to show?

To best develop your defense strategy, it’s smart to look at what an employee has to prove in order to succeed on a retaliation claim. In short, the employee must demonstrate that he or she engaged in a lawful and protected activity and that he or she suffered an adverse employment action because of his or her engagement in that protected activity. Keep in mind that an adverse employment action isn’t limited to termination. It can include reduced hours, a demotion, and even transfer to a new assignment.

Protecting yourself from retaliation and wrongful termination claims

There are several steps that you can take to protect yourself from these sorts of claims. Let’s look at some of them here:

  • Be consistent: You should strive to treat your employees equal. After all, this is why your business has written policies. So, before taking an adverse employment action, carefully consult your policies and consider how employees in similar circumstances have been treated in the past.
  • Document everything: If you’re going to end up facing a legal claim, and you should probably anticipate that you will, then you’re going to need evidence to show that your actions were justified. So, make sure that you’re carefully documenting and retaining records pertaining to employee discipline and warnings. If you do make an adverse employment action, then you should try your best to carefully detail the reasons for that action at or near the time that you take that action.
  • Give notice: If you take an adverse employment action and the employee doesn’t see it coming, then he or she is more likely to assume that it’s retaliatory in nature. That’s why it’s usually a good idea to engage in progressive discipline that culminates in the ultimate adverse employment action, whether that be termination or something else. This way there’s clear escalation and a documented progression of justifications for an adverse employment action.
  • Think about timing and optics: You must be careful of when you make an adverse employment decision to avoid the perception that it’s retaliatory in nature. For example, if the employee in question just filed a complaint for discrimination or harassment, then you may want to wait a little while before levying the adverse employment action, even if it’s immediately justifiable. Doing otherwise gives the perception that you’re only acting because of the complaint that has been made.
  • Have witnesses on your side: Even if you’ve taken the steps outlined above, you’re still going to need witness testimony to support your position. This can certainly include representatives from your human resources department, but it might also include the employee’s co-workers who can attest to his or her poor work performance, disruptive behavior, or consistent tardiness. Be sure to speak to these witnesses, document their accounts, and take down their contact information.

Diligently work to protect your business interests

A lot of disgruntled employees levy legal claims against their employer or former employer. The consequences can be devastating for those employers who are ill prepared to fight back. Don’t let that happen to you and your business. Instead, be diligent in building your defense and presenting the best legal arguments you can under the circumstances. Help may be available to you in these matters if you think it would be beneficial to you and your business.

 

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