Can I still discipline an employee for ongoing performance issues if they have complained about workplace conditions?

Yes, you can discipline the employee for legitimate business reasons, such as poor performance, if doing so is unrelated to them making a complaint. You should take steps, however, to ensure your actions are fair and consistent, and don’t appear retaliatory.

Retaliation occurs when an employer takes adverse employment action against an employee for exercising their rights under the law — otherwise known as a protected activity.

Protected activities include actions like reporting discrimination, harassment, wage issues, or unsafe working conditions. On the other hand, general complaints about workload or personal disagreements don’t typically qualify.

Accordingly, if an employee’s complaint was a protected activity, the risk of a disciplinary action being seen as retaliation is high.

To complicate matters, in California, any adverse action taken against an employee within 90 days of the employee’s protected activity is presumed to be retaliatory.

In other words, state law assumes that your disciplinary action taken after the employee complained is unlawful unless proven otherwise. You can overcome this presumption by demonstrating a legitimate, nonretaliatory reason for the action.

Therefore, although discipline is allowed within the 90-day window, your action requires careful consideration. A clear and consistent process, supported by detailed documentation, can help overcome the presumption of retaliation, which otherwise could result in costly litigation.

Although avoiding retaliation is key, it is just as important to handle disciplinary actions consistently and regardless of whether an employee has made a complaint. And, if you haven’t already, start documenting every instance of an employee’s poor performance.

By being consistent, documenting thoroughly, and following a clear process, you can address performance issues while minimizing the risk of retaliation claims.

Read more about Proving Retaliation, Consistency and Reasonableness in Disciplinary Decisions and Documenting the Discipline Process in the HR Library.