Often times, an employee may know that discipline or a poor performance evaluation is imminent. Occasionally, such an employee will engage in a preemptive strike—“You can’t discipline me or give me a poor performance evaluation now since I have submitted a complaint.” While this may not necessarily be the norm, it is also not unheard of, causing employers to go from being confident in their decision to being uncertain and worried about the possibility of costly litigation.

Many believe retaliation claims are the easiest for employees to allege and prove. Therefore, it is not surprising that retaliation claims accounted for 40.7 percent of the charges in California that were submitted to the Equal Employment Opportunity Commission (EEOC) in 2016. Similarly, the California Department of Fair Employment and Housing received 1,688 retaliation complaints in 2016, which was the second highest percentage of claims at 21 percent. An additional reason retaliation claims are much more prolific than other protected status claims is that retaliation can be asserted based upon any protected activity (e.g., whistleblower, using federal or State family leave, complaining on behalf of another person, safety, wage and hour complaints, etc.) It is not necessary to be a member of the protected class in question to assert a retaliation claim (an example would be a man complaining about alleged discrimination against women). The employee just needs some type of protected activity.

Retaliation claims are also often the most problematic for employers to defend. For example, even an employee’s “good faith belief” that he has engaged in protected activity could meet the requirements for a retaliation claim. In a 2016 case, Castro-Ramirez v. Dependable Highway Express, Inc., an employee complained about his hours being changed because it impacted his ability to take his son to dialysis. Although the employer’s refusal to accommodate the employee’s schedule may not necessarily have been unlawful, the employee had a good faith belief that the employer’s refusal was unlawful, and that was all he needed to establish that he engaged in “protected activity” for a retaliation claim. The court even went so far as to say that the employee did not have to use the words “accommodation” or “unlawful” to prove his good faith belief that the employer’s actions were unlawful.

If an employee is able to show that he engaged in protected activity, was subject to an adverse employment action (which in some circumstances can include a poor performance evaluation if it is likely impair the employee’s prospects for advancement or promotion), and there is a connection between the activity and the action, the employer then has the burden of proving that the adverse employment action was not the result of the employee’s protected activity. This is where it gets complicated. The employer must show legitimate, lawful reasons for the action taken, and on-going and consistent documentation is the employer’s most important ally in defending against retaliation claims. If the employer has a clear, written record of the reasons why an employee may be disciplined or receive a poor performance review prior to the employee making a complaint, the employer is in a much better position to defend the adverse action. Another important element is to ensure that the employer’s policies, rules, contracts or practices are applied consistently and evenly. The U.S. Occupational Safety and Health Administration (OSHA) recently recommended anti-retaliation training for employees.

Should an employee make that preemptive strike and submit a complaint or grievance in advance of the employer taking an adverse action, the employer need not be intimidated but should consider all the relevant factors before making a decision—how good is the documentation to support the decision, when did the conduct giving rise to the discipline occur, and what factors could potentially support the employee’s retaliation claim. And when in doubt consult legal counsel.