Employee Poor Performance After a Protected Activity - What are the Options?Feb 14, 2023
What happens when an employee engages in a protected activity at work (i.e. complains of harassment), but the company wants to terminate her because of her poor performance.
Is this retaliation?
Is the employee protected from termination because she engaged in a protected activity?
How long does the company need to employ a poorly performing employee because he/she complained of harassment at some point in their employment?
There is an additional risk that exists when employees are disciplined around the same time the employee engages in protected activity. This usually happens in the following two instances:
1. when an employee receives a negative performance review, and in response, the employee complains he/she is being singled out by the manager;
2. When an employee engages in a protected class, (complains of harassment, discrimination, etc) and then his performance goes downhill because he is distracted at work because of the inappropriate conduct.
The question is which came first- the protected activity or the poor performance.
How to best protect the company from this type of issue?
The best defense for a company lies in proper documentation of the timeline of events:
(1) document poor performance and document the communications/dates decisions are made and (2) involve legal counsel, who can also help with ensuring the documentation is sufficient.
If you have documentation, but it does not accomplish its intended purpose (i.e.: leaves out important information, dates, uses certain words that could limit or reduce your available defenses, etc.) its not helpful and can be harmful at times.
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