How to Avoid a Claim of 'Pretaliation'

​Travis is an HR director. One afternoon, his company's vice president of sales, Daniel, stopped by to speak with him about problems Daniel was having with a direct report, recently hired sales manager Carla.

Daniel shared multiple issues with Carla's performance. She'd only been with the organization for two months and seemed to not be taking her responsibilities seriously. For example, she wasn't returning clients' calls in a timely manner; her follow-up paperwork wasn't tight or thoughtful enough, causing additional rewrites; she wasn't putting in the hours that were required of the role; and she wasn't able to answer clients' basic questions about order status, necessitating that clients raise their questions to Daniel instead.

Daniel told Travis that he wasn't sure what he wanted to do at that point, but he was planning on speaking with his boss, the senior vice president of sales, about his concerns with Carla's performance, and he wanted to keep Travis in the loop. Daniel reasoned that this would likely result in some form of progressive discipline with Carla, including the possible extension of her formal introductory period, but he'd have more information later in the week after speaking with his boss.

The next morning, Carla showed up unannounced in Travis' office. She was having problems with Daniel, as well, but for very different reasons. 

"I have to make a formal complaint about my supervisor, Daniel," Carla said. "I just can't take it anymore. He's very condescending toward me as a woman, he shows a bold male bravado or machismo in everything he does and he puts down my ideas. I feel like he treats me less than, and I see that he doesn't treat male employees that way. I feel like I'm being discriminated against because of my gender, and I just can't take it anymore."

Here's the question for Travis: Should he share with Carla that her boss visited him the afternoon before, complaining about her job performance, or should he say nothing to her and simply hear out her complaint?

Performance vs. Conduct: A Slippery Slope

On the one hand, you can certainly argue that the vice president's concerns about the sales manager's performance are relevant to the situation. After all, he may be behaving with frustration or resentment toward her because of her substandard job performance. On the other hand, it can be argued that one issue has nothing to do with the other. There shouldn't be any mitigating considerations for a supervisor's inappropriate behavior, especially when discrimination or harassment may be in play.

"The stronger or more favorable answer for the organization would be for the HR director to disclose that the vice president of sales was in [HR's] office the day before, making a record of the employee's substandard job performance," said Jeff Nowak, a management-side employment attorney at Littler in suburban Chicago.

"Workplace communication, generally speaking, is about transparency. Behavior and performance issues often overlap. In a spirit of goodwill and clarity, it would be best for Travis to let Carla know about his conversation with Daniel the night before, including specific details that Daniel shared, because it is simply the right thing to do," Nowak said. "After all, her job may be on the line at that point. Further, her boss's boss is getting involved. Therefore, to sweep the performance concerns under the rug and make no mention of them could be doing her a disservice, as she wouldn't be fully informed about the totality of events at play in this situation."

But there's another critical reason to disclose the boss's concerns about her performance: the record.

"The record being created is a critical consideration in everything you do as a leader in corporate America," Nowak advised. "When in doubt, always consider what the record will look like if you act one way versus another." 

For example, if Travis shares Daniel's concerns about Carla's performance, then she'll have a fuller picture of what's going on that may be affecting his communications with her. If she fully understands that he's already spoken with HR about his concerns with her job performance, then she'll have a greater appreciation of the seriousness of the situation and be given a "fighting chance" to save her job (if she chooses to).

In comparison, if Travis says nothing about Daniel's visit the night before and simply listens to Carla's complaints about his conduct, he's creating risk. First, she won't know of Daniel's concerns, and she could later accuse Travis of denying her a fair chance of salvaging her job by sharing what he knew at the time about her boss's impressions of her performance.

"Even more significantly, the employee could reason that she came to human resources in good faith to complain about her boss's conduct on Wednesday and then got written up and had her initial probationary period extended on Friday," said Rich Falcone, an employment law attorney at Littler in Irvine, Calif. "That's where the potential damage to the record lies and could come back to haunt the organization in the litigation arena, should the matter proceed there."

The Specter of Retaliation

Retaliation claims may stem from employees filing a good faith complaint about their supervisors with the HR department and then finding themselves disciplined soon after.

"By Travis disclosing the full picture, Carla at least realizes that there were concerns about her performance that preceded her complaint to human resources, and that's a critical element and consideration in terms of the record being established," Falcone said. "It removes the retaliation arrow from a plaintiff attorney's quiver so that the arrow can't be shot back at the company at some later date."

Travis told Carla that he wanted to hear her side of the story, he would take notes on everything she had to say, and he'd ask her for witnesses who could corroborate her impressions of her boss's behavior so that he could conduct a formal investigation. But in Travis's mind, she had to know about Daniel's visit the afternoon before, in which case she understood that any adverse action that might come her way from the vice president and the senior vice president was not in retaliation for having filed a complaint with HR that morning.

The Landmine Detonation  

Here's what it sounds like when an employee gets to HR first to complain about a boss's conduct before the boss has a chance to complain about the subordinate's job performance. The senior vice president calls Daniel into his office and informs him, "Daniel, I'm here with Travis from HR to let you know that a member of your team filed a formal complaint against you, alleging that your conduct might constitute discrimination or harassment." 

Daniel, pale and sweating, asks who on his team lodged the complaint. The senior vice president responds, "Carla." Daniel jolts back in his chair and responds, "Carla? You've got to be kidding. She's the worst performer on my team! I was just coming to HR to complain about her performance and extend her probationary period and write her up."  Boom! The landmine just went off, and the unsuspecting vice president of sales stepped on it without even realizing it.

While the individual employee's complaint about her superior may be totally valid, it may also be the case that the sales manager complained to HR about Daniel's conduct first in order to cloak herself in a protective veil against retaliation, better known as "pretaliation." Employees are sophisticated consumers, and they often realize—or are encouraged by plaintiffs' attorneys—to lodge a complaint about a manager's conduct before the manager has a chance to complain about their performance.

Without a crystal ball, the employer cannot know whether the complaint is warranted or if the employee is making a pre-emptive strike by doing so. What's important is that managers like Daniel run, don't walk, to HR when they have performance or conduct concerns about members of their team.

Make HR your ally early on. Leadership is a team sport. The investigations that HR conducts will reveal where the truth ultimately lies. Appropriate remedial steps can be taken from there, whether regarding the new hire's performance, the supervisor's inappropriate conduct or both. But transparency in communication is critical for the record being established, and neither HR nor the front-line operational leader should inadvertently create a perception of retaliation by sparing the employee's feelings about performance concerns. When in doubt, err on the side of openness, honesty and transparency. Let the investigation play itself out. But be sure that everyone knows what's going on and the record is clear, even when two separate tracks of performance and conduct allegations are simultaneously in play.

Paul Falcone (www.PaulFalconeHR.com) is a frequent contributor to SHRM Online and has served in a range of senior HR roles at such companies as Paramount Pictures, Nickelodeon, Time Warner and City of Hope Medical Center. He's a member of the SHRM Speakers Bureau, a corporate leadership trainer, a certified executive coach and the author of the five-book Paul Falcone Workplace Leadership Series (HarperCollins Leadership and Amacom). His other bestsellers include 101 Tough Conversations to Have with Employees, 101 Sample Write-Ups for Documenting Employee Performance Problems, 96 Great Interview Questions to Ask Before You Hire, and 2600 Phrases for Effective Performance Reviews.