The Dangers of Inconsistency and Retaliation


What are the dangers of inconsistency and retaliation?

If an employee has violated the law or your employment policies, you should follow your general disciplinary policies and procedures in making decisions regarding disciplinary action.

Your disciplinary action should include:

  • Ensure that the appropriate discipline is applied (the punishment should fit the crime)
  • Ensure that discipline is consistent for all employees
  • Give employees fair warning that they have violated company policies
  • Give employees an opportunity to improve
  • Create a paper trail of evidence to show what the employee did and how you responded

Be sure you follow your disciplinary action system consistently. Disciplining some employees but not others for the same types of problems is just asking for a discrimination claim.

Watch out for retaliation.

Almost all of the federal employment laws prohibit retaliation against employees who exercise their rights under those laws. That includes the employment discrimination statutes as well as other laws granting protections to employees, such as the FMLA (Family and Medical Leave Act), the FLSA (Fair labor Standards Act) and many more.

In general, retaliation is any adverse action that is taken against an employee for filing a complaint, supporting another employee’s complaint, or otherwise asserting the employee’s rights under a federal employment law. The most common types of retaliation claim involves an employee who alleges he or she was fired for complaining about harassment or discrimination.

Double check.

If you make the wrong decision about termination for someone, a growing number of courts say that when an employee claims he was wrongfully discharged for misconduct, the issue isn’t whether he is guilty but whether you reasonably believed he was guilty.

Document everything!

No matter how honest and fair your disciplinary procedures or evaluations are, it won’t mean much in court without clear documentation to support your decision.

If you are interested in an in-depth discussion on these topics or if you need assistance in the above-mentioned areas, please contact HR Advisors. 


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