What's New in Employment Law?

Who counts as “family”? It’s a question California employers likely will hear more often, particularly when employees request time off to care for someone who isn’t a spouse, parent, child, or other traditionally recognized relative.

Consider an employee who asks for several weeks off to care for a seriously ill longtime friend. The two aren’t related, have never lived together, and have no legal relationship. But they’ve supported each other through life’s challenges for decades and consider themselves family. Does the employee qualify for protected leave? Can the employee receive Paid Family Leave benefits? The answers may surprise some employers. And a new California law will make understanding the distinction even more important.

Senate Bill 590, signed in 2025, expands California’s Paid Family Leave program to include employees who take time off to care for a seriously ill “designated person.” The law takes effect July 1, 2028. That’s still some time away, but the underlying concept is already part of California employment law. Employers who haven’t adjusted their leave practices may already be getting it wrong.

Wait, Isn’t This Already the Law?

Sort of. And that’s where things get interesting.

Since January 1, 2023, the California Family Rights Act (CFRA) has allowed eligible employees to take job-protected leave to care for a designated person with a serious health condition. A “designated person” includes someone related to the employee by blood or whose relationship with the employee is the equivalent of a family relationship. That definition goes well beyond traditional family relationships. It potentially encompasses a close friend, longtime companion, or another individual who plays a family-like role in the employee’s life.

Employers covered by CFRA generally must provide up to 12 weeks of protected leave to eligible employees for qualifying reasons. They may limit an employee to one designated person per 12-month period. But there’s a catch.

Until SB 590 becomes operative, an employee taking CFRA leave to care for a designated person who isn’t otherwise a qualifying family member may not be eligible for California Paid Family Leave benefits. In other words, the employee may be entitled to time away from work but not the wage-replacement benefits that would help make taking that time financially possible. SB 590 addresses that disconnect.

What Changes in 2028?

Beginning on July 1, 2028, California’s Paid Family Leave program will expand to cover eligible employees who need time away from work to care for a seriously ill “designated person.” Currently, Paid Family Leave provides eligible workers with up to eight weeks of partial wage replacement within a 12-month period for qualifying reasons. Depending on their earnings and applicable benefit limits, employees generally receive approximately 70 to 90 percent of their wages.

SB 590 does not increase the duration of Paid Family Leave benefits. Instead, it expands who an employee can care for while receiving those benefits.

Employees claiming benefits to care for a designated person for the first time will have to identify that person and attest, under penalty of perjury, to their blood relationship or explain how their relationship is equivalent to a family relationship. Importantly, this is a state-administered benefits determination, not an invitation for employers to independently decide whether an employee’s personal relationships are sufficiently meaningful.

And employers should remember that Paid Family Leave benefits and job protection are two different things. PFL provides wage replacement. CFRA, when applicable, provides job-protected leave. One does not automatically guarantee the other.

So, Who Qualifies as “Family”?

Here’s where employers need to resist the temptation to impose their own definitions. Many of us think of family in traditional terms: parents, children, siblings, spouses, and grandparents. But modern families don’t always fit neatly into those categories.

An employee may have been raised by someone who isn’t a biological or adoptive parent. Another may have a lifelong friend who has effectively become family. Someone else may rely on a close companion for the kind of support traditionally provided by relatives. California law recognizes that meaningful family relationships aren’t always established through marriage, adoption, or biology. Does that mean employees can simply identify anyone they like and demand protected leave? No. The relationship must satisfy the applicable legal definition, and the employee must meet the relevant eligibility and medical-certification requirements.

But employers should be cautious about making assumptions based on labels or insisting on documentation of a legal or biological relationship when the law recognizes family-like relationships. The better approach is to focus on the statutory requirements, seek appropriate information through the established leave process, and avoid unnecessary inquiries into employees’ personal lives.

The Biggest Mistake Employers Can Make

The most significant risk isn’t necessarily misunderstanding the new Paid Family Leave benefits. It’s misunderstanding the protections employees already have. Imagine an employee requests time off to care for someone described as a “close friend.” The supervisor responds, “Sorry, CFRA only covers family members.” That’s potentially a serious mistake.

The proper response is to determine whether the individual qualifies as a designated person and whether the employee otherwise meets CFRA’s requirements. The same issue arises when employers rely on outdated leave forms, handbook provisions, or HR software that recognizes only traditional family relationships.

Another common mistake is assuming that approval or denial of state Paid Family Leave benefits determines whether an employer must grant protected leave. It doesn’t. Employers must evaluate their obligations under CFRA independently of the state’s benefits determination. And depending on the circumstances, other leave protections may apply as well.

What Should Employers Do Now?

Although SB 590 won’t become operative until 2028, there’s no reason to wait to address the underlying compliance issues.

Start by reviewing your CFRA policy. Does it expressly recognize “designated persons”? Does it accurately describe how employees can identify them? Are any limitations consistent with California law? Next, take a look at your leave forms and internal procedures. Employees shouldn’t have to select an inaccurate relationship category simply because the employer’s paperwork hasn’t kept up with the law. You also should train supervisors to recognize potential leave requests and refer them to HR rather than making eligibility decisions on the spot. An employee doesn’t have to use the words “CFRA” or “designated person” to raise an issue that requires further review. It is important to ensure the employees administering leaves understand the distinction between job protection and wage replacement. This will become especially important when SB 590 takes effect. Finally, review how your organization handles medical certifications and requests for additional information. Employers are entitled to obtain information permitted by law, but leave administration shouldn’t become an investigation into whether an employee’s relationships meet someone’s personal expectations.

The Bottom Line

California has been expanding its understanding of family for years, and SB 590 represents another step in that direction. The law recognizes something that employers should already understand: The people we rely on most aren’t necessarily the people we’re related to. But this isn’t simply a story about changing family structures. It’s a reminder that California’s leave laws overlap in complicated ways, and even well-intentioned employers can make expensive mistakes when they treat those laws as interchangeable.

July 2028 may seem far away. The obligation to recognize designated persons under CFRA, however, is already here.

Remember, the best time to discover that your leave policy is outdated is before an employee needs to rely on it.

The post California’s Expanding Definition of “Family” first appeared on Shaw Law Group.

      

Let’s face it. Some days, working in HR feels less like a profession and more like supervising a middle school cafeteria. Except the students have mortgages, LinkedIn profiles, and access to attorneys.

Someone is furious because a coworker didn’t invite them to lunch. A department head wants to fire an employee for having a “bad attitude” but cannot explain what that means. Two employees haven’t spoken in three weeks because of an incident involving a shared refrigerator. And the CEO wants to know why everyone can’t just get along.

Welcome to Monday. 

It’s easy to laugh at the absurdity of workplace behavior. Frankly, sometimes you have to. But underneath the drama, the personalities, and the seemingly endless parade of problems is something much more important. Every workplace needs someone willing to be the grown-up in the room.

And that person doesn’t need the fanciest title, the biggest office, or the authority to fire anyone. They just need the courage to lead.

The Courage to Be Unpopular

We spend a lot of time talking about leadership skills. Communication, emotional intelligence, conflict resolution, and strategic thinking. All important, of course. But here’s one that doesn’t get nearly enough attention: the ability to tolerate someone being unhappy with you.

Seriously. Too many workplace problems persist because someone in authority doesn’t want to have an uncomfortable conversation. They don’t want to disappoint a high performer, confront a difficult executive, or tell an employee that their behavior is unacceptable. So, they wait. And wait. And hope the problem will somehow resolve itself.

Spoiler alert: It usually doesn’t.

Instead, the problem gets bigger, employees become frustrated, and HR inherits a mess that could have been prevented six months earlier. Being a grown-up means accepting that doing the right thing won’t always make you popular. Sometimes it means telling an otherwise terrific employee that their behavior is terrible. Sometimes it means telling the CEO that the proposed solution is a very bad idea. And sometimes it means explaining, yet again, that rolling your eyes during a staff meeting is not necessarily a terminable offense.

Good leaders understand that not every uncomfortable moment is a crisis, and not every unhappy employee has been treated unfairly. They also understand that avoiding a difficult decision is itself a decision, usually one with negative consequences for everyone else.

Stop Confusing “Nice” With “Kind”

Here’s another uncomfortable truth: Being nice and being kind are not the same thing. In fact, in the workplace, they can be very different.

Being nice is avoiding a difficult conversation because you don’t want to upset someone. Being kind is having that conversation because the person deserves to know the truth. Being nice is allowing a struggling employee to continue struggling because delivering constructive criticism feels awkward. Being kind is explaining what needs to change and giving that employee a genuine opportunity to improve.

And being nice is letting the office bully continue terrorizing everyone because they’re exceptionally good at their job. Being kind is protecting the rest of the team.

We need fewer leaders focused on being liked and more leaders committed to being fair, honest, and courageous. That doesn’t mean becoming the workplace drill sergeant. You can be compassionate without being a pushover, establish boundaries without being cruel, and hold people accountable without humiliating them. In fact, the best leaders do all three.

Employees deserve honesty, even when it’s uncomfortable. They also deserve leaders who care enough to tell them what they need to hear rather than simply what they want to hear.

You Don’t Have to Attend Every Argument

Some workplace conflicts deserve serious attention. Others deserve a polite acknowledgment and a gentle reminder that the adults involved are perfectly capable of working things out themselves.

Part of good leadership is knowing the difference. Not every disagreement requires an investigation. Not every personality conflict requires mediation. And not every employee complaint calls for an emergency meeting involving HR, the CEO, and outside counsel. Sometimes two people just don’t like each other. That’s allowed. But they still have to work together professionally.

Of course, complaints involving potential harassment, discrimination, retaliation, threats, or other legal concerns must be assessed appropriately. But once those issues have been considered, leaders should resist the temptation to become permanent referees for ordinary workplace friction.

Employees are capable of learning how to disagree respectfully, solve problems, and navigate uncomfortable conversations. Sometimes the most empowering thing a leader can say is, “I have confidence that the two of you can work through this professionally.” Then give them the tools and opportunity to do exactly that.

And if someone continues to behave badly? Address it. Promptly. Professionally. Without turning the situation into a six-month committee project.

The Little Things Aren’t Little

Leadership isn’t measured only by the big decisions. It’s measured by what happens on an ordinary Wednesday, when nobody is giving a speech about organizational values.

Do you give employees credit for their ideas? Acknowledge your mistakes? Listen when someone disagrees with you? Say, “Thank you.”? Treat the employee who cleans the office with the same respect you show the person who owns the building? Follow the rules you expect everyone else to follow?

Employees notice these things. They notice who gets a pass, whose concerns are dismissed, and whether the organization’s values disappear the minute they become inconvenient. They also notice courage, humility, consistency, and generosity.

One sincere apology can repair more damage than a dozen leadership retreats. One difficult but honest conversation can change someone’s career. One leader willing to defend an employee who isn’t in the room can change an entire team’s understanding of what respect looks like.

None of this requires a new policy, an expensive consultant, or another inspirational poster featuring a mountain. It requires paying attention, treating people decently, and recognizing that leadership is something you do, not something printed on your business card.

Here’s to the People Who Keep Showing Up

Working with people can be messy, frustrating, hilarious, and occasionally downright exhausting. But it’s also incredibly meaningful.

Think about how much of our lives we spend working. Think about the influence a leader can have on someone’s confidence, financial security, health, and happiness. Think about the difference between going home every evening feeling defeated and going home knowing your contributions matter.

That’s a tremendous amount of power. And responsibility.

The good news is that you don’t have to be perfect to make a positive difference. You don’t have to have all the answers or get every decision right. You just have to keep trying to be thoughtful, fair, honest, and brave. Apologize when you get it wrong. Speak up when something isn’t right. Give people room to grow. And remember that behind every personnel file, performance review, and workplace complaint is an actual human being.

Even the one who keeps stealing lunches from the refrigerator.

At Shaw Law Group, we’ve seen just about everything when it comes to workplace behavior. We’ve seen leaders make difficult situations worse by refusing to deal with them, employees turn relatively minor disagreements into full-blown dramas, and organizations spend an astonishing amount of time and money addressing problems that never should have gotten so far. Some days, you really can’t make this stuff up.

But we’ve also had the privilege of working with some truly remarkable people. Leaders who aren’t afraid to have difficult conversations, who genuinely care about their employees, and who understand that doing the right thing sometimes means making a decision nobody is going to like. They don’t always get it right, but they take responsibility when they don’t, and they keep trying.

And here’s something we wish more people understood: You don’t have to solve every problem, make everyone happy, or have the perfect response to every ridiculous situation that lands on your desk. You just have to be willing to deal with what matters, tell people the truth, and occasionally remind actual adults that they are, in fact, actual adults.

We know how exhausting that can be. Especially when you’ve explained the same thing seventeen different ways, someone is still convinced that being asked to do their job constitutes harassment, and you have three genuinely important issues waiting for your attention.

But think about the alternative. Imagine a workplace where nobody speaks up, nobody takes responsibility, and everyone waits for someone else to handle the difficult stuff. Unfortunately, we don’t have to imagine very hard. We’ve seen those workplaces, too.

So, the next time you’re wondering whether it’s worth having that uncomfortable conversation, enforcing that unpopular decision, or pushing back when everyone else wants to take the easy way out, remember this: The problems you prevent rarely make headlines. The trust you build doesn’t show up on a spreadsheet. And the employee whose work life you made better may never tell you.

That’s okay. Do it anyway.

And if someone complains that you’re being too tough, too demanding, or not nearly sympathetic enough about the ongoing refrigerator situation, take a moment to consider whether they’re right.

Then go be the grown-up in the room.

The post Be the Grown-Up in the Room (Even When Nobody Else Is) first appeared on Shaw Law Group.

      

California employers can use AI to help make employment decisions, but starting next year, they cannot let the algorithm do the firing. Governor Gavin Newsom signed Senate Bill 947 on September 30, creating what supporters have dubbed the “No Robo Bosses Act.” The new law draws a very California line in the sand: automated systems can inform discipline and termination decisions, but they cannot replace meaningful human judgment when someone’s job is at stake.

That sounds straightforward. It may not be. Many employers already use software that scores productivity, flags attendance, ranks workers, identifies possible policy violations, or recommends corrective action. Some may not even realize those tools qualify as automated decision systems. That is where the risk begins.

The Robot Cannot Make the Call

 Beginning on July 1, 2027, California employers may not rely solely on an automated decision system to discipline or terminate an employee. The law reaches systems that use artificial intelligence, machine learning, statistical modeling, data analytics, and similar technologies to generate scores, classifications, recommendations, or other outputs that influence employment decisions.

So, this is not just about futuristic AI. A system that scores productivity, flags attendance patterns, ranks employees, evaluates call-center performance, identifies suspected misconduct, or recommends corrective action may fall within the law depending on how it works and how the employer uses it.

The practical point is simple: employers will need to know when technology is influencing an employment decision and how much weight leaders are giving it.

A Human Rubber Stamp Will Not Cut It

The most important feature of SB 947 may be its requirement for meaningful human review. If an employer primarily relies on an automated system in deciding to discipline or terminate an employee, a human reviewer must independently corroborate the system’s output using other relevant information.

That could include supervisory evaluations, personnel records, employee work product, witness interviews, peer reviews, or other evidence supporting the decision. The leader reviewing the recommendation cannot simply click “approve” because the software generated a negative score or flagged the employee for action.

The human reviewer needs an independent factual basis for the decision. And if the automated recommendation cannot be corroborated, the employer cannot use it as the basis for discipline or termination. That makes documentation particularly important.

Employees Get to Ask Questions

 The law also gives employees new information rights when an automated system plays a significant role in discipline or termination. Employers will need to provide written notice when the decision is communicated, including information about the role of the automated system and the human review that occurred.

Employees also may be entitled to information about the data used by the system in reaching its result. That requirement should get employers’ attention because many organizations purchase technology without fully understanding what data the system collects, how that information is weighted, or how the software reaches a particular recommendation.

When an employee asks why a system flagged them for discipline, “that is just what the software said” will not be much of an answer.

The Bigger Problem May Be the Software You Already Have

 Employers often think of workplace AI as technology they may decide to purchase in the future. That may be the wrong way to look at the issue.

AI and automated decision-making already may be embedded in payroll systems, applicant tracking platforms, scheduling software, productivity tools, call-center systems, performance-management platforms, security programs, and other applications employers have used for years.

A vendor may have added a scoring, prediction, or recommendation feature without anyone in HR ever thinking of the product as an “AI system.” Employers therefore need to look beyond products marketed specifically as artificial intelligence and identify any technology that produces recommendations or classifications that may influence employment decisions.

In other words, the first step is not deciding whether to buy AI. It is figuring out how much AI you already have.

Start the Inventory Now

 SB 947 does not become operative until July 1, 2027, but employers should not wait until next summer to prepare. The most useful first step is to identify every system that plays a role in hiring, scheduling, attendance, performance management, productivity measurement, discipline, or termination.

Employers should ask what data each system uses, what output it produces, who receives that output, and whether anyone inside the organization can explain how the recommendation was generated. They also should determine whether the underlying facts can be independently verified and whether the leader making the decision could justify it without simply repeating what the software said.

Vendor contracts deserve attention too. If a vendor cannot explain how its system operates or provide enough information for the employer to meet California’s notice and review requirements, that may become the employer’s problem, not the vendor’s.

Leaders and HR professionals also will need training. Human review has to mean something more than approving whatever the computer recommends.

The Bottom Line

 California is not banning AI from the workplace. It is telling employers that when an employee’s job is on the line, a human still has to own the decision.

AI can identify patterns, flag concerns, and make recommendations. But if the best explanation for a disciplinary action is “the system told us to,” the employer may already be relying too heavily on the robo boss.

Want to Get Ahead of This Issue?

 SB 947 is only one piece of California’s rapidly developing workplace AI landscape. Employers also need to think about how AI is being used in recruiting, performance management, workplace investigations, recordings, drafting, policy administration, and everyday HR decision-making.

On Wednesday, November 4 at 10:00 a.m. PT, Joe Beachboard and I will present AI in the Workplace: A California HR Compliance Workshop, a 90-minute practical session sponsored by EmployersLawyer focused on how California employers should actually be using AI now. We will cover what an AI policy should include, where AI is already showing up in HR, the risks employers need to recognize, and the guardrails organizations should put in place before the technology gets ahead of them.

Register here.

The post California Just Fired the Robo Boss first appeared on Shaw Law Group.

      

California employers can be forgiven for spending much of their compliance time thinking about California law.

The Fair Employment and Housing Act. The Civil Rights Department. California wage and hour rules. California leave laws. California regulations that seem to multiply by the week.

So, when the Equal Employment Opportunity Commission announces a new enforcement priority, some California employers may be tempted to think: “That’s federal. We operate in California.” That would be a mistake.

The EEOC is drawing renewed attention to what it describes as anti-American national origin bias. Its current guidance expressly states that Title VII protects American employees and applicants from national origin discrimination and harassment and prohibits practices such as preferring foreign workers or workers with a particular visa status over American workers and as potential discrimination.

California employers should be paying attention.

Federal Law Still Applies in California

California employers often focus on the FEHA because it reaches more employers and, in many areas, provides protections beyond federal law. The FEHA’s discrimination provisions generally apply to employers with five or more employees, while Title VII generally applies beginning at 15 employees.

But broader California protections do not replace federal law.

A California employer covered by Title VII must comply with both Title VII and the FEHA. And even when an employer is thinking primarily about California compliance, developments at the EEOC matter because they tell employers what the federal enforcement agency is looking for—and where workplace practices may be creating risk.

The EEOC’s current focus is a good example.

National Origin Protection Runs in Every Direction

The EEOC is reminding employers of a basic principle that sometimes gets lost in workplace training: national origin discrimination law does not protect only particular nationalities.

It protects all individuals from discrimination because of national origin, including Americans.

California law similarly prohibits discrimination and harassment based on national origin and ancestry.

That means employers should be concerned about statements such as:

• “Americans are lazy.”
• “Foreign workers work harder.”
• “American employees are entitled.”
• “Visa workers are easier to manage.”
• “We should hire them because they won’t complain about the hours.”

These comments can constitute more than workplace banter. They may become evidence that national origin—or assumptions closely associated with national origin—is influencing employment decisions.

California Employers Should Watch the Stereotypes

This is where the EEOC’s message has particular practical value.

Discrimination problems often begin not with a written policy, but with a stereotype.

A recruiter believes applicants from one country have a stronger work ethic. A leader thinks American workers expect too much money. Someone assumes visa workers will be more loyal. Another person believes employees from a particular culture are less likely to complain. These assumptions should not drive hiring, compensation, promotion, assignment, discipline, or termination decisions.

The EEOC specifically identifies beliefs about lower labor costs or supposedly better work ethic as insufficient reasons for preferring one national-origin group over another. It also warns about job advertisements expressing preferences such as “H-1B preferred” or “H-1B only.”

For California employers, the EEOC’s new focus should prompt a review not only of formal job postings, but also of what recruiters, staffing partners, and hiring leaders are saying behind the scenes.

Don’t Forget Harassment

The issue is not limited to hiring or other employment actions, of course.

National origin harassment is prohibited under both federal and California law. The EEOC explains that unlawful harassment may include offensive or derogatory remarks about a person’s national origin, ethnicity, or accent when the conduct becomes sufficiently severe or frequent.

California law separately prohibits workplace harassment based on national origin and ancestry. So, employers should apply the same standard consistently.

If repeated negative comments about Mexican, Indian, Filipino, Chinese, or Ukrainian employees would raise concerns, repeated negative comments about Americans should not be dismissed simply because the target group is different.

The focus must be on the actual conduct, and not whether the employer thinks the affected group is one that “normally” brings discrimination claims.

Look at Your California Training Through a Federal Lens

Most California employers already have policies prohibiting national origin discrimination. Almost all of them should be providing regular harassment-prevention training.

But this is a good time to look at the examples being used. If every discrimination example flows in only one direction, employees and leaders may develop an overly narrow view of what discrimination looks like.

Training should reinforce a simpler rule: Protected characteristics should not drive employment decisions. That principle applies regardless of who is affected.

Employers also should consider whether recruiters and hiring leaders understand the difference between legitimate questions about authorization to work in the United States and unlawful preferences based on national origin, citizenship-related assumptions, or visa status.

Those conversations can become risky quickly when someone moves from “Is this person legally authorized to work?” to “We prefer these workers because they are cheaper, harder working, or less likely to complain.”

Why California Employers Should Care About Washington

California employers sometimes view federal developments as secondary because California employment law is often more protective. But enforcement priorities matter.

They tell employers what government agencies are investigating, what fact patterns may draw scrutiny, and what workplace conduct deserves another look before it becomes a charge or lawsuit.

The EEOC’s anti-American bias initiative does not require California employers to reinvent their EEO programs.

It does require them to remember that federal law remains part of the compliance picture.

The Bottom Line

California employers should continue to take their cues from the FEHA and the Civil Rights Department, but they should not stop there.

Title VII still applies to covered California employers, and the EEOC’s current focus on anti-American bias provides a useful reminder that discrimination laws protect individuals, not a predetermined list of favored groups.

Review recruiting practices. Listen for stereotypes. Train leaders to recognize bias regardless of who is targeted. And make employment decisions based on qualifications, performance, conduct, and legitimate business considerations—not assumptions about where someone comes from.

In California, we have our own extensive set of employment laws. But that doesn’t mean employers can afford to ignore what the EEOC is telling us.

The post California Employers: Don’t Ignore the EEOC’s New Focus on Anti-American Bias first appeared on Shaw Law Group.

      

Most workplace problems do not arrive neatly packaged as legal claims. An employee may say a supervisor is treating them differently, complain about a coworker’s comment, announce that they are recording workplace conversations, or raise a discrimination concern in the middle of an ongoing performance issue. Another employee may ask for a schedule change and mention a medical condition almost as an afterthought.

None of these situations necessarily means the employer has violated the law. But what happens next can matter enormously.

Employers often create more risk through their response to an employee concern than through the event that triggered the complaint in the first place. A frustrated supervisor reacts defensively. Someone sends an email that should never have been written. HR becomes focused on whether the employee’s complaint is “true” before considering whether the complaint triggers legal protections. A legitimate performance problem becomes tangled up with frustration about the employee’s allegations.

By the time lawyers become involved, the original issue may no longer be the employer’s biggest problem.

Separate the Complaint From the Employee

One of the most important things an employer can do when an employee raises a concern is separate the concern itself from everything else the organization knows about that employee. The employee may be difficult. The employee may have performance problems. The employee may exaggerate, misunderstand what happened, or ultimately be wrong.

That does not mean the concern should be ignored or dismissed.

Complaints involving discrimination, harassment, retaliation, disability or religious accommodation, wage issues, safety concerns, and other workplace rights may trigger legal protections even when employees do not use precise legal terminology. In many circumstances, an employee also does not need to prove the underlying allegation was correct in order to be protected from retaliation for raising it.

For that reason, the initial question should not be, “Do we believe this employee?” The better question is, “What exactly is the employee telling us, and what do we need to do about it?” Those are very different inquiries, and employers that confuse them often create unnecessary risk.

Do Not Let a Bad Delivery Distract From the Message

Employees do not always raise concerns professionally. They may be angry, send lengthy emails late at night, accuse multiple people of discrimination, copy half the organization, threaten to contact an attorney, or announce that they are recording workplace conversations.

It is understandable that leaders may become focused on the employee’s behavior. But that can cause the organization to miss the substance of what the employee is actually saying.

There may be legitimate conduct issues that need to be addressed. Employees do not necessarily receive a free pass to violate workplace rules simply because they have raised a complaint. The key is to separate the two issues. First identify and appropriately address the underlying concern. Then determine whether there is a distinct conduct issue that warrants action.

When employers blur those questions, it becomes much more difficult later to show that a disciplinary decision was based on legitimate workplace concerns rather than irritation with the employee for complaining.

Pay Attention to the Leaders Closest to the Situation

HR may understand retaliation. The employee’s immediate supervisor may not.

A supervisor who has just been accused of discrimination or harassment may understandably feel angry, embarrassed, defensive, or unfairly attacked. Without guidance, that supervisor may begin avoiding the employee, communicating differently, scrutinizing the employee more closely, excluding the employee from opportunities, or suddenly documenting every minor problem.

Those changes in behavior can become important evidence later.

Employers should give leaders specific direction after a complaint is raised. Continue treating the employee professionally. Do not discuss the complaint with people who do not need to know. Do not make comments about the employee having complained. Do not change assignments, schedules, opportunities, expectations, or working relationships because the employee raised a concern. And before taking significant employment action, involve HR.

Simply telling a supervisor “do not retaliate” is not enough. Leaders need to understand what retaliation can look like in ordinary workplace interactions.

Keep Performance Issues Separate and Credible

One of the most difficult situations arises when an employee raises a protected concern while legitimate performance or conduct problems are already unfolding. Employers sometimes become so worried about retaliation that they stop managing the employee altogether. That is not the answer.

The better approach is to continue addressing legitimate performance concerns, but to do so carefully and consistently.

The employer should be able to identify what the performance problem is, when it began, what expectations were communicated, how similar situations have been handled, and what action the organization likely would have taken if the employee had never complained.

Documentation becomes especially important in these situations, but more documentation is not always better documentation. A sudden avalanche of criticism immediately after an employee raises a complaint can look suspicious, particularly when the employer had not documented the same concerns previously.

Consistency and credibility matter more than volume. Three months of ordinary, contemporaneous documentation often will be far more persuasive than 20 pages of criticism created in the week after an employee alleges discrimination.

Think Before You Put It in Writing

Some of the most damaging evidence in employment cases comes from emails and text messages written in frustration.

Comments such as “she is creating problems again,” “he is obviously setting us up,” “now she is claiming discrimination,” or “we need to get rid of him before this gets worse” may feel like harmless internal shorthand when they are written. Months or years later, viewed by an attorney, agency investigator, judge, or jury, they may tell a very different story.

Employers should document facts, not frustration. Avoid speculation about an employee’s motives. Do not describe employees as troublemakers because they have raised concerns. And do not mix discussion of a legal complaint with unrelated dissatisfaction about the employee.

Good documentation should help explain why a decision was made. It should not create a new issue that requires its own explanation.

The Best Response Is Usually the Most Boring One

Employers do not need dramatic responses when employees raise difficult workplace concerns. They need disciplined ones.

Listen carefully. Identify the actual issue. Preserve relevant information. Investigate when appropriate. Address accommodation requests through the appropriate process. Keep legitimate performance issues separate from the complaint. Remind the appropriate leaders about retaliation. Document facts rather than emotions. And involve HR or counsel before the situation escalates.

That approach may not feel particularly exciting, but that is the point. The strongest employer response often is the one that looks completely unremarkable when someone reviews the file two years later.

At Shaw Law Group, we regularly remind employers that they cannot control whether an employee raises a complaint. They can control what happens next.

And very often, what happens next determines how much legal risk the organization ultimately faces.

The post The Risk Is in the Response: How Everyday Employee Complaints Become Legal Problems first appeared on Shaw Law Group.