If an employee files a lawsuit against your company, there’s a strong likelihood the claim will be about workplace retaliation. Fisher Phillips’ Melody Rayl discusses how employers can guard against these allegations.
According to EEOC statistics, the frequency with which employees allege claims of retaliation has increased dramatically over the past decade. In 2008, approximately 34 percent of all complaints filed with the EEOC included an allegation of retaliation. By 2018, that number increased to more than 51 percent. This dramatic increase means workplace retaliation claims have become one of the most frequently filed claims in employment-related lawsuits.
In most cases, claims of employer retaliation begin with a complaint of a different sort – a report of perceived workplace harassment or discrimination. The law prohibits taking any adverse action against an employee or applicant for engaging in this type of “protected activity,” even if it later turns out the original complaint was unfounded. In most cases, the action is considered retaliatory if the employee’s complaint was a motivating factor in the subsequent employment decision.
The manner in which the employer handles the employee’s reported concerns – and thereafter addresses other matters related to the complaining employee – often determines whether the employee will later claim he or she was retaliated against for having made the report. So, how can employers protect against allegations of retaliation by employees who initiate or participate in complaints of harassment or discrimination? Here are five tips to avoid claims of workplace retaliation.
Have an Anti-Retaliation Policy
Employers should ensure they have strong whistleblower and anti-retaliation policies in place. Such policies should be all-inclusive and not limited to any particular protected activity. For example, make sure your prohibition of retaliation is not limited to your sexual harassment policy alone. As with any other policies that rely on employees coming forward, an anti-retaliation policy should include a reporting procedure to let employees know how and to whom they should report perceived retaliation against themselves or others.
Many employers utilize an anonymous hotline, which encourages employees to report conduct they believe may be a violation without requiring them to disclose their identities. Finally, make sure all employees and managers are trained on the policy to reinforce the company’s commitment to adherence.
Investigate Complaints Promptly
One of the most important preventive measures employers can take to avoid complaints of perceived retaliation is to conduct a prompt and thorough investigation of every employee complaint. Make clear that all reports are taken seriously and that the company will not tolerate any type of retaliation. Emphasize to employees that if they believe they have been mistreated in any way because of their participation in an investigation, they should immediately contact management or human resources to report their concerns. If it is determined that a policy violation occurred, it should be dealt with in accordance with policy and consistent with company practice. Document every step of the investigation, including interviews, evidence gathering, conclusions and any steps taken to resolve concerns.
Evaluate any Adverse Action
Effective personnel management requires frequent and specific documentation of employee performance, both positive and negative. This is particularly true where an employee has made a complaint or participated in a workplace investigation. Employees tend to become hypersensitive to any workplace criticism or personnel action after they have engaged in protective activity. It is not uncommon for employees to begin to view every interaction through a lens of fear and suspicion.
Before taking any adverse action against an employee who has engaged in protected activity, evaluate the potential for a meritorious retaliation claim by considering the proximity of the contemplated action to the employee’s complaint. The closer in time, the greater the risk it will be perceived as retaliatory. Make sure the action being considered is truly necessary and is consistent with company policy and practice – and that, if a comparable situation has arisen with other employees, similar action has been taken.
If it becomes necessary to discipline or terminate an employee at some point after the worker has complained, it will be critical to have a well-documented performance history for the employee. If you wait until after a complaint is made to begin documentation, it will be far more difficult to refute an allegation by the employee that the sudden increase in documentation and any adverse action taken was punishment for having complained.
Watch for Red Flags
Human resource and management personnel should be aware of potential indicators of retaliation against employees who have engaged in protected activity. These “red flags” may include increased scrutiny of the employees by supervisors, co-workers ostracizing or excluding them from social interaction, inconsistent or increased performance expectations or a sudden increase in negative documentation regarding the employee’s performance.
Interdepartmental communication is essential in detecting and avoiding potential problems and ensuring that any employment action taken in close proximity to an employee’s complaint is warranted and consistent with company practice. Supervisors and managers should be trained to recognize potential retaliatory conduct and know their role in prevention. Recognizing and remediating such conduct quickly can go a long way in preventing a formal complaint.
Check In and Follow Up
It is easy to inadvertently forget about an employee who has made a complaint once the investigation is completed and appropriate action is taken. However, it is essential that you follow up with employees who have made complaints to ensure that no retaliation has occurred and that there are no “red flags” needing additional attention. This is also a good time to make sure that the activity that gave rise to the initial complaint has not reoccurred and that the workplace environment has remained free of harassment, discrimination and retaliation. Letting employees know the company cares about them is important.
As workplace retaliation claims continue to increase, it is critical to recognize and prevent actions that could be perceived by an employee as “punishment” for having reported workplace misconduct. Employers should take immediate steps to convey their commitment to maintaining a retaliation-free workplace in both their policies and their practices. In the event your company is accused of having engaged in retaliatory conduct, consult legal counsel as soon as possible to ensure your rights are protected.