Despite the heightened attention to avoiding and addressing sexual harassment claims in the wake of the #MeToo movement, retaliation remains the most-frequently filed employment law claim according to the Equal Employment Opportunity Commission’s FY 2019 Enforcement and Litigation Data. The agency received 39,110 retaliation charges in FY 2019 or 53.8% of all charges filed.
The “ABC’s” of documentation can help employers lower the risk of retaliation claims.
To establish a prima facie case of retaliation, plaintiffs must show: (1) they engaged in statutorily protected activity; (2) they suffered an adverse employment action; and (3) there was a causal connection between their protected activity and the adverse employment action. If a plaintiff shows a prima facie case, the employer has the opportunity to proffer a legitimate, non-retaliatory reason for the alleged adverse employment actions.
Thus, the best defense to a retaliation claim is an employer’s legitimate business reason for an adverse decision. The star role in this defense is documentation. It is not the mere existence of documentation that helps defeat the claim. Rather, it is the existence of specific, objective, and contemporaneous documentation.
Let the “ABC’s” of Documentation be your guide:
1. Always Be Consistent
Before making a decision that affects an employee, employers should review relevant policies and guide their decision accordingly. Employers also should research past practice and determine how they had addressed similar situations. For example, if an employee exhausts their Paid Time Off but requests additional unpaid time off, the employer should consider any relevant policies and whether it granted unpaid time off to employees for similar reasons.
2. Document Basis of Employer’s Action
Any documentation should reflect the basis for an employer’s action. Employee documents, such as written discipline, should explain why the employee is receiving the warning. Employer documents, such as termination summaries, should detail the specific reason for the termination. Contemporaneous documentation outlining the basis for an employer’s decision will help demonstrate the decision was legitimate and not pretext for retaliation.
3. Equal Treatment of Similarly Situated Employees
Making decisions consistently and maintaining documentation showing that fact can help employers prove they treat similarly situated employees equally. By establishing equal treatment, employers can defend against allegations that a decision was retaliatory. For example, an employer that terminates every employee who receives “Rarely Meets” on their performance review can better defend against an accusation that a termination was retaliation for some protected activity.
4. Fairness for Employee
Employees who lack context for an adverse decision are likely to view that decision as arbitrary and unfair. They also are more apt to fill in their own context – retaliation. For example, an employee who never received any prior performance-based documentation may react poorly to a Final Written Warning for poor performance and come up with some other reason for the Warning. However, if the employee receives periodic and progressive documentation about performance, a Final Written Warning will be expected.
5. Good timing
Sometimes the timing of the decision to discipline an employee can be as important as the documentation and its contents. Consider whether there are factors that militate in favor of delaying disciplinary action until more information is available. If an employee has just complained of discrimination or harassment, documented discipline or a termination in close proximity to that complaint is more likely to be viewed as retaliatory.
Of course, this is not an exhaustive guide to decisions on how to document disciplinary action. Each case is fact sensitive. Jackson Lewis attorneys can train Human Resources and managerial personnel on the importance of documentation and assist in litigating against retaliation claims.