I've talked recently about perceived discrimination stemming from employees' confusion over what is actually protected by law. I hadn't planned to do any more on the topic, but a reader's response got me thinking in another direction. Sometimes, the reader pointed out, people who have made a complaint to HR or their supervisor think that they are completely immune from any kind of adverse action now, and that they can behave in any way they like, break any policies they want, because they are protected by "whistleblower" laws. They think that, once they've filed a complaint, any kind of adverse action taken against them is retaliation and is illegal.
This is where documentation becomes really important. The employees who think they now have carte blanche to behave any way they wish are, of course, wrong. So it is very important to keep accurate documentation of policy violations and inappropriate behavior, because you're going to have to have a clear reason for taking any post-complaint negative employment action. You need to be able to justify that you are not writing them up because they complained that their supervisor was harassing them, but because they were late three days and left early without permission one day.
It's also very, very important that these employees not be treated any differently than other employees. If there is a policy that you don't generally enforce, by all means do not start to enforce it with them. The last thing you want to have to explain to an attorney or the Equal Employment Opportunity Commission (EEOC) is how it happened that, of the last six people who had attendance issues, the only one who got written up was the one who complained that their supervisor was harassing them.
Of course, what this all comes down to is that the safest way to manage is to be consistent with how you enforce your policies and with how you document policy violations or other actions resulting in discipline. As long as you're consistent (give or take some wiggle room for special circumstances), it shouldn't be a problem when an employee starts playing the retaliation card.
Catherine Bannon is an HR consultant in Marshfield, MA (catherine.bannon@gmail.com). Bannon worked for 10 years in HR management before starting her consulting practice.
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