When Employee Protections and Corrective Action Collide

You've just issued a written corrective action or started a Performance Improvement Plan (PIP). A few days later, the employee files an internal workplace complaint.

Should Corrective Action Automatically Stop?

Generally, no.

One of the biggest misconceptions employers have is that corrective action must stop as soon as an employee engages in protected activity or requests protected leave. In most cases, that isn't true.

If the performance concerns are legitimate, well documented, and unrelated to the employee's protected activity, employers should continue moving forward with the corrective action process. Stopping the process simply because an employee engaged in protected activity can create unnecessary compliance risk and make it more difficult to tie future corrective action back to the original performance concerns.

The key is your documentation. It should clearly support the performance concerns and the corrective action taken, including any prior steps that may have been verbal or less formal.  When applicable, your documentation should clearly show that the performance concerns existed before the protected activity and that the corrective action process was already underway. This becomes even more important if employers later need to move forward with additional corrective action.

Although this blog begins with a workplace complaint, the same general concepts often apply when an employee requests protected leave, seeks a reasonable accommodation, files a workers' compensation claim, or engages in other legally protected activity. With that, not every type of employee protection should be handled the same way.

Protected Activity

If an employee files a harassment or discrimination complaint, raises a safety concern, complains about wages, files a workers' compensation claim, or engages in other protected activity, that does not mean employers have to stop addressing legitimate performance or conduct concerns.

For example, an employee has ongoing attendance issues and is placed on a written warning. Shortly after, the employee files a harassment complaint. The employee then has another unexcused absence that would normally result in the next step of corrective action. Employers can generally continue with the next step if the attendance concerns are legitimate and unrelated to the complaint, just as they would if the employee had not made the complaint. However, timing is extremely important. When corrective action closely follows protected activity, it is even more important to make sure the performance concerns are well documented and that similar situations have been handled consistently.

Protected Leave

Protected leave, such as Paid Leave Oregon or FMLA leave, often requires a different approach than other types of employee protections.

If an employee takes a continuous block of protected leave while on a PIP, the least risky approach is to pause the PIP and resume it when the employee returns. Continuing the PIP timeline while the employee is on leave creates compliance risk because the employee should not be working and therefore doesn't have an opportunity to demonstrate improvement. If the employee performs work during protected leave to satisfy the PIP, that also creates compliance risk because it could appear the employer interfered with the employee's protected leave rights.

Remember, pausing the PIP isn't about excusing the performance concerns. It's about allowing the employee to take protected leave while making sure they have a fair opportunity to demonstrate improvement when they return. In other words, the leave changes the timing, not the reason for the PIP.

Intermittent Protected Leave

Intermittent leave is a little different because the employee is still working.

If the employee is working enough to demonstrate improvement, the PIP can often continue. However, if the intermittent leave significantly limits the employee's opportunity to demonstrate improvement, it may make sense to extend the timeline. The goal is to make sure the employee has a fair opportunity to complete the PIP while still holding them accountable for meeting legitimate performance expectations.

Before Moving Forward, Ask Yourself

• Are the performance concerns legitimate, documented, and unrelated to the employee's protected activity or leave?
• Has the employee had a meaningful opportunity to demonstrate improvement?
• Does protected leave or a requested accommodation require adjustments to the timeline or process?
• Can you clearly explain and demonstrate through documentation why you're moving forward with corrective action?

The Bottom Line

Employees can have legal protections and still be held accountable for meeting legitimate performance expectations. Similarly, employers can continue addressing legitimate performance concerns while respecting an employee's legal rights.

The key takeaway is that different employee protections may require different approaches. A workplace complaint alone shouldn't stop corrective action. A reasonable accommodation may require adjustments to the process. A continuous block of protected leave will often mean pausing the timeline until the employee returns.

When in doubt, take a step back before moving forward. Evaluate the specific circumstances, document your reasoning, and make sure you're applying expectations consistently. Taking the time to do so can go a long way toward reducing compliance risk while continuing to hold employees accountable for meeting legitimate performance expectations.

If you need support navigating these situations, please contact us at compliance@cascadeemployers.com. We are happy to help!