Question:
Jen!
I need your advice! Recently, an employee was passed over for raise due to his recent subpar performance review. I just received a notice from the New York State Division of Human Rights that the employee is alleging we discriminated against him by declining the raise! He is still employed in our office but what do we do in this situation?
-Dr. S
Answer:
Hi Dr. S.,
First off, ensure that you have the proper documentation that will show that the employee was denied the raise due to his performance. This is critical in showing the DHR the actual reason for the denial and defeats the employee’s unwarranted discrimination claim.
Second, the employee must remain in his current employment position in your office. Once the DHR claim has been made, a demotion or dismissal can likely be viewed as workplace retaliation and get you involved in an actual lawsuit, one “with teeth,” so to speak. New York State has some of the most stringent retaliation laws. Some actions taken by an employer considered to be retaliatory include[1]:
- dismissal from employment;
- reduction in work hours;
- cut in pay;
- reassignment to a less desired office location;
- more intensive or critical supervision; or even;
- withdrawal of previously allowed privileges
My advice in this situation: Stay calm and continue your relationship with the employee as usual. The employee should remain in his current role, at his current rate and schedule, in your office until the outcome of the state action. This way, the employee has no proof that would indicate any retaliatory behavior on your part or any allegation that your office is a hostile work environment. Many employers make rash decisions. After all, it’s human for us to hit back at someone that hurt us. In this case though, it is best to think ahead and protect yourself and your staff. The last thing you need is to give this employee leverage to file another lawsuit against you. That is another costly expense that you do not need.
-Jen
