Can You Be Fired After Complaining to HR?

You complained to Human Resources. A few weeks later your hours get cut, you get placed on a performance improvement plan, maybe you even get fired. Is this illegal retaliation?

In New York, employers cannot take an adverse employment action against you for engaging in a legally protected activity. Whether an employer’s actions constitute retaliation depends on several factors, including (i) what you complained about, (ii) what your employer did after your complaint, and (iii) whether the two are connected.

Was My Complaint Protected?

An employee cannot be retaliated against for complaining about:

• Workplace discrimination;
• Sexual or other unlawful harassment;
• Unpaid minimum wages or overtime;
• Other wage-and-hour violations;
• Certain unlawful or unsafe workplace practices; or
• Other conduct protected by applicable employment laws.

The important thing is that your employer understands you are complaining about discrimination, harassment, or some other illegal practice. Merely disagreeing with a supervisor or complaining that a workplace decision is unfair does not necessarily constitute legally protected activity.

Did My Employer Act Against Me?

Employees sometimes assume retaliation means termination, but it can take other forms such as

• Cutting an employee’s hours;
• Reducing compensation;
• Demoting the employee;
• Giving the employee less desirable shifts or assignments;
• Removing responsibilities;
• Issuing unwarranted disciplinary notices;
• Subjecting the employee to increased scrutiny; and
• Denying opportunities that were previously available.

Did My Employer Act Because Of My Complaint?

The relevant question is not simply whether something unpleasant happened after the complaint. The nature and seriousness of the employer’s action, the reason for it, and its relationship to the protected activity all matter

Making a protected complaint does not give an employee immunity from legitimate discipline or termination. An employer may still take action for legitimate, non-retaliatory reasons.

What an employer generally cannot do, however, is punish an employee because the employee made a legally protected complaint.

Consider an employee who has received positive performance reviews for several years. The employee reports workplace discrimination to HR. Shortly afterward, a supervisor begins issuing disciplinary notices for conduct that was previously accepted, removes important responsibilities, and ultimately terminates the employee.

Those facts do not automatically establish retaliation, but the sequence of events raises questions about whether the HR complaint played a role in the employer’s decisions.

Timing is often an important part of the analysis. Suppose an employee complains about discrimination on Monday and is unexpectedly terminated on Friday. The close timing may support an inference that the complaint and termination were connected.

What Evidence Should I Save?

Employees who have made workplace complaints should consider preserving documents and communications, such as:

Their HR Complaint

Keep a copy of the written complaint or email you submitted.

If you complained orally, consider creating a contemporaneous written record of the conversation, including when it occurred, who participated, and what you reported.

Emails and Text Messages

Preserve communications with HR, coworkers, and managers regarding the subject of the complaint, the complaint itself, and any actions taken against you.

Employees who later lose access to a company email account may no longer have access to potentially important communications.

Performance Reviews and Records

Keep performance evaluations, positive feedback, awards, disciplinary notices, and performance improvement plans.

A documented difference between how an employee’s performance was characterized before and after a complaint can sometimes be relevant.

Pay and Hour Records

Preserve schedules, paystubs, time records, and other compensation information, particularly if hours, shifts, responsibilities, or compensation change after the complaint.

What If My Employer Says I Was Fired for Poor Performance?

Employers may try to claim there was a legitimate business reason for an adverse employment action. Poor performance, attendance problems, misconduct, restructuring, and reductions in force are common examples.

It isn’t true just because they say it. The surrounding circumstances matter. Was the employee actually having performance problems before making the complaint? How was the employee evaluated before the complaint? Did the employer begin documenting alleged problems only afterward? Were workplace rules applied consistently to other employees? Did supervisors make statements connecting the discipline to the complaint? Who knew about the complaint when the employment decision was made? How much time passed between the complaint and the adverse action?

What Should I Do If I Think My Employer Is Retaliating Against Me?

First, preserve relevant evidence.

Second, avoid assuming that every workplace action after an HR complaint is unlawful. Retaliation claims are fact-specific, and the legal protections available depend in part on the nature of the original complaint.

Third, consider obtaining legal advice before making significant decisions about your employment, signing a severance agreement, or taking company records.

Speak With a New York Employment Attorney

Naidich Law represents employees in Brooklyn and throughout New York City in workplace retaliation and other employment-law matters.

If you complained about discrimination, harassment, unpaid wages, or other potentially unlawful workplace conduct and believe your employer retaliated against you as a result, you can contact Naidich Law to discuss your situation.

This article provides general information and is not legal advice. Reading this article or contacting Naidich Law does not, by itself, create an attorney-client relationship.