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Watch Your Response: Why Employer Retaliation Is a Big Problem in Today’s Workplaces

Published on 2/5/2018 12:00:00 AM
Non-exempt employee overtime rules and guidelines for managers to avoid potential labor law violations after the recent FLSA changes.

With the sweep of hard-hitting stories dominating the headlines in recent months, you might think sexual harassment claims are the primary area of concern for the Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing federal employee protection laws. But there’s a more prevalent issue that continues to rear its ugly head in workplaces: retaliation.

Again for fiscal year 2017, retaliation dominated the list of cases handled by the EEOC. Of the more than 84,000 charges filed with the agency in that period, almost half (48.8%) involved employer retaliation.

What, exactly, is retaliation? And why do so many businesses get into legal trouble with it?

A Serious Issue That Can’t Be Ignored

Retaliation comes in many forms, but it typically involves any action against an employee after he or she has engaged in “protected activity,” such as making an internal complaint, filing a charge with a government agency (the EEOC and others) or acting as a witness in an investigation. First, the employee speaks up, files a complaint or otherwise pursues his/her legal rights, then the employer responds inappropriately or downright illegally.

Improper responses may include:

Firing the employee
Refusing a promotion or raise
Reducing the number of hours an employee can work
Excluding the employee from meetings and other company-related activities
Transferring or demoting the employee
Evaluating an employee more severely than others (such as giving a bad performance review)
Creating an uncomfortable or hostile work environment

For the employee who has been wronged, it’s relatively easy to win a retaliation claim by showing a connection between

engaging in a legally protected activity and
experiencing any of the above adverse actions.

Let’s look at an example:

Jane, a 10-year employee at a retail store, has always exceeded her sales quota and received excellent performance appraisals. Shortly after providing a witness statement in support of a coworker’s sexual harassment claim, Jane is terminated. The reason given by the employer was that Jane failed to provide 48 hours’ notice to her supervisor about a shift swap with a coworker.

During the investigation, it comes to light that employees frequently swap shifts on the same day without consequence, despite the 48-hour notice policy. As a result, and given the short time between the “protected activity” (the witness statement) and the perceived “retaliatory action” (the termination), the odds of Jane winning a retaliation case are high.

Because the EEOC enforces a handful of anti-discrimination and harassment laws — Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA) and the Equal Pay Act — it is the government agency hit the hardest with retaliation claims. But other federal agencies and laws often come into play. Employers also can land in legal hot water for retaliating against an employee regarding time and pay rights under the Fair Labor Standards Act (FLSA), medical leave rights under the Family and Medical Leave Act (FMLA) — both enforced by the Department of Labor (DOL) — or for reporting a workplace safety issue to the Occupational Safety and Health Administration (OSHA).

How Employers Can Prevent Retaliation Claims

All employers should be on high alert about the potential for retaliation claims — and take the proper measures to avoid them. According to the EEOC, “people seek retaliation when they feel the workplace is not fair and that they cannot depend on formal channels for fair or just treatment.”

Culture and procedure are equally important in preventing accusations of retaliatory activity. To steer clear of retaliation claims, it’s smart business practice to:

Include an anti-retaliation policy in the employee handbook — You already should have firm anti-discrimination and harassment policies in your handbook. This additional policy should address retaliation, encouraging employees to come forward with concerns and explaining the process for reporting acts of retaliation.
Provide training — Every manager, supervisor and HR representative needs to understand what constitutes retaliation in the workplace, and how to respond when an employee complains or participates in an investigation. Make sure, too, you have a legitimate, non-discriminatory reason for all employment decisions. Finally, document training as proof you’ve taken practical steps to prevent retaliation.
Explore other precautions — In certain situations, it may be wise to let an employee accusing a supervisor of retaliation to report to a different supervisor or follow an alternative work schedule. Obviously, you need to be careful that these well-intentioned efforts also don’t appear retaliatory!

Ensure Legally Sound Policies

When establishing an anti-retaliation policy (or any employee policy), it’s critical to ensure that the policy is legally sound. For a simple, affordable solution that promises guaranteed compliance with federal and state employment laws, check out these employee policy products from ComplyRight, available through HRdirect.

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Jaime Lizotte
Presented by: Jaime Lizotte,
HR Solutions Manager
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