Can you discipline someone whose work declines after a complaint?

| Feb 3, 2021 | Employment Law

As an executive, owner or manager at a business, you have a responsibility to keep things running well. Occasionally, issues may go unaddressed or unnoticed because of how much you have on your plate. That might lead to an employee speaking up about mistreatment, illegal behavior or other serious concerns.

Those who file an internal complaint about discrimination or harassment, those who advise management of illegal or improper business practices, and those who report illegal activity to regulatory agencies have protection as whistleblowers.

Both federal and state law protects these workers from any kind of retaliation. Does that mean you don’t have any recourse when an employee behaves inappropriately or goes through a major slump in performance? 

Businesses can’t take action because of whistleblower activity

The laws protecting whistleblowers, such as the Conscientious Employee Protection Act, help workers by forbidding any sort of direct retaliation based on their actions as a whistleblower. Companies cannot demote, fire or otherwise penalize employees for speaking up about a dangerous work environment, law-breaking or abuse.

In all likelihood, you feel grateful for the employee who brought a potentially serious issue to your attention. You don’t intend to penalize them for speaking up and doing what was right. What you may take issue with is the change in their job performance after making the report, possibly because they believe they can’t face any kind of consequence for their actions on the job. What do you do if you need to discipline someone who has whistleblower protection?

 Documentation is crucial for any disciplinary action

When disciplining a whistleblower, it is of the utmost importance that you do so in compliance with the law and your company’s written policies. Making sure that you have actual documentation or evidence of infractions, such as a performance report showing lower sales or timeclock information showing habitual tardiness in recent weeks, can justify the actions you take.

The more serious the infraction, the more important it is to address it in a written disciplinary report. Following up repeatedly if the employee does not correct their behavior is also crucial. Provided that you have documentation supporting your decisions, you can fight back if that worker later tries to allege that you retaliated against them.

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