At Sherman Law Corporation, we are often asked how a supervisor can defend against retaliation claims if an under-achieving employee continues to perform poorly after the employee made a complaint.
It is hardly a surprise that an underperforming employee who made a complaint continues to perform poorly at work. If the employee was counseled before the complaint and engages in similar conduct after the complaint, the employer should continue to counsel the employee in the same manner as before. If the punishment is harsher than before the complaint, then arguably, the employee will claim it was in retaliation for making the complaint. Any post-complaint misconduct should not be acted upon until it is fully vetted by human resources, employment counsel, and/or others, with fully documented evidence to support the misconduct with carefully worded counseling.
Not all actions are material or adverse, but often times post-complaint retaliation consists of a hodgepodge of conduct where the employee claims to be singled out, ostracized, and treated harsher because of the complaint. The conduct may include not being asked to go to lunch, given poor assignments, etc. While it is always wise for supervisors to avoid any interactions with the complainant to avoid retaliation claims, if, prior to the complaint, you invited the complainant to lunch as you did others, as long as you inform the complainant that s/he is free to join and you are not singling them out, you can get ahead of any such claims. The best defense to a retaliation claim is treating the complainant better than before the complaint. For example, if there is extra overtime that is usually shared, offer it to the complainant. If the employee was upset with your tone, make sure all communications (in writing) are exceedingly pleasant and inviting. Nothing beats a retaliation claim more than celebrating the complainant’s birthday with a cake at the office.
For more information on defending against retaliation claims from poorly performing employees, feel free to contact our office at 323-488-2087.
Frequently Asked Questions About Retaliation Claims From Poorly Performing Employees
1. What is a retaliation claim in the workplace?
A retaliation claim happens when an employee says their employer punished them for making a complaint, like reporting harassment or discrimination. Punishment can include being fired, demoted, or even subtly treated differently.
2. Can an employer discipline a poor-performing employee after they file a complaint?
Yes, but it must be done carefully. If the employee had performance issues before the complaint, you can continue addressing them the same way you did before. The key is consistency. Any change in how you treat the employee after a complaint can be used as evidence of retaliation.
3. What should a supervisor do immediately after an employee files a complaint?
Do not change how you treat the employee. Keep all interactions professional and well-documented. Any disciplinary action should be reviewed by HR or employment counsel before moving forward. Acting too quickly or too harshly after a complaint is one of the most common ways employers end up facing retaliation claims.
4. What actions count as retaliation under California law?
Retaliation doesn’t have to mean firing someone. Giving an employee bad assignments, leaving them out of team activities, changing their schedule, or even being cold toward them can all be seen as retaliation. California’s employment discrimination laws are broad, and even small changes in treatment can add up to a legal claim.
5. What is the best way to defend against a workplace retaliation claim?
The best defense is treating the complaining employee the same, or even better, than before the complaint. Document everything, keep your tone professional, and make sure any disciplinary steps are consistent with how you handled similar issues in the past. If you’re unsure how to proceed, speaking with an experienced employment attorney is the smartest first step.
6. Can a poorly performing employee still win a retaliation claim?
Yes. Even if the employee has a documented history of poor performance, they can still win a retaliation claim if they can show that how they were treated changed after the complaint. That’s why it’s critical to handle all post-complaint interactions carefully and consistently and to work with experienced legal counsel from the start.
7. How can Sherman Law Corporation help with retaliation claims?
Lisa Sherman and the team at Sherman Law Corporation help California employers defend against retaliation claims before and after litigation. If an employee has filed a complaint and you’re unsure what to do next, contact our office at 323-488-2087 for guidance.
