Spring 2008
Robert R. Cleary
Retaliation claims in the employment setting continue to increase and have resulted in substantial damage awards against employers who are otherwise successful in obtaining favorable results in companion sex, age, race, religious and national origin discrimination claims. Over a 14-year period from 1992 through 2006, EEOC charge filing statistics reflect retaliation claims under all statutes have more than doubled while the sex, race and age variety of claims have increased only modestly.
The anti-discrimination statutes are not alone when it comes to anti-retaliation directives. Virtually every statute involving the employment relationship contains anti-retaliation provisions. (Title VII of the Civil Rights Act of 1964, ADEA, FLSA, FMLA, ERISA, NLRA, SOX, OSHA, etc., and virtually all the state laws and regulations involving employment).
Clients have asked us to provide an easily digestible module to help their organizations avoid retaliation claims. I have come up with some strategic action points to consider in helping your key supervisors and HR personnel understand and prevent retaliation claims.
Strategies To Prevent Retaliation Claims
Prevention of retaliation claims involves an integrated strategic plan not unlike the efforts most employers undertook to prevent the proliferation of harassment claims. It is advised that anti-retaliation be given a highly visible corporate priority coupled with training modules designed to enhance employees' basic instincts with respect to retaliation. Below are some of the "Best Practices" to consider in a strategic preventive approach.
Publish and disseminate a well-written anti-retaliation policy and complaint procedure. The policy against retaliation should be treated as an integral part of an organization's culture and should be as important and as prominent as the policy against workplace harassment. The policy against retaliation should be a top-down priority and it should contain the following:
A statement prohibiting retaliation in any form against an employee who has engaged in protected activity.
A definition of retaliation with examples of adverse action.
A complaint procedure identifying multiple individuals or resources (such as an anonymous 800 TIP phone line) to whom a complaint can be advanced and which provides employees a complaint resource other than their immediate supervisor.
Train all managers, supervisors and anyone capable of managing adverse employment decisions in preventing retaliation claims. This is a very critical strategy to implement because the most effective preventive measures are those which educate and instruct those most capable of creating the liability. Supervisors and decision makers should be instructed on the following:
- That the company policy prohibits retaliation.
- The basic elements of retaliation claims.
- The concept of adverse action and how it can be established.
- How to communicate and enforce the anti-retaliation policy.
- How to observe employee non-compliance.
- The manner by which complaints are investigated and administered.
- How to follow up with employees who have engaged in any form of protected activity.
Create action plans for supervisors to implement whenever an employee makes a complaint or raises a concern with even the slightest legal implications. It is important that supervisors know how to react properly to an employee’s complaint.
Supervisors need to take all complaints seriously and promptly respond, investigate and share the complaint with HR personnel. Management employees also need to instinctively know to create a written record that evidences prompt responses and attention to anti-retaliation objectives. The follow-up process with the complaining employee must include a written acknowledgment of receipt of the complaint together with a solicitation that the complaining party notifies management if any reactive behaviors or adverse action occurs.
Supervisors should also quietly evaluate if the complaining employee is advancing the complaint for ulterior motives. At this point, it is also important to ensure that the integrity and promptness of the ensuing investigation is documented. Specific instructions to individuals targeted or involved in the complaint prohibiting retaliatory behaviors is crucial and must be timely. Finally, the investigation must be completed and its results communicated to interested parties as soon as practicable.
What you see here are only a couple of suggestions related to retaliation claims. To obtain the rest of my suggestions, visit our Web site at www.wnj.com/ or contact me at 248.784.5181 or .
