(Published by the HR Specialist Vol. 51, No. 8 • August 2021)

When employees realize they’re about to be disciplined, some try to fight back by filing a discrimination claim or submitting a request for job-protected leave (say, FMLA). They may believe that employers can’t fire anyone who has a pending legal case or is out on medical leave. However, you are not powerless. You can still impose discipline for actions unrelated to an employee’s protected status. The key: Have enough documented proof to show the discipline was already in the works before the employee invoked his or her rights.

Recent case: When Timothy learned HR was investigating him for using work email to facilitate illegal loans to co-workers, he immediately asked to take FMLA leave. However, he was fired less than two hours later. He sued, alleging interference with his FMLA rights. A federal court dismissed his case, saying Timothy had been under investigation for months before he requested leave. The employer’s records showed the termination decision was made weeks earlier. (Watson v. Department of Revenue, 3rd Cir.)

Advice: Document and date every step in your disciplinary process.