Personnel(ly) Speaking
Personnel Management
Systems, Inc.
I’m not retaliating; I’m just so mad, I can’t speak to him!
Retaliation is one of the hottest areas for employment litigation. While discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) against private sector employers declined in 2005 by 5%, retaliation claims continued to increase; more than 29% of all charges filed with the EEOC last year included retaliation.
So, what is retaliation and what behavior will get you into trouble? Briefly, unlawful retaliation exists when three things occur:
1. An employee engages in protected activity;
2. The employee suffers an adverse employment action; and
3. There is a causal connection between the protected activity and the adverse action.
In other words, the employee did something they are legally entitled to do (such as complaining about discrimination, filing for workers’ compensation, or requesting time off under FMLA). Then, because of that employee’s action, the company treated the employee less favorably.
What does this really mean in the workplace?
Protected Activity
Anti-retaliation rules are in place to allow employees the opportunity to voice their claims and point out violations without fear of reprisal. Therefore, employees are protected if they report a violation, make an internal complaint about or oppose potential unfair practices, or make a formal complaint through a government agency or court action. Co-workers who testify in connection with a formal complaint or those who provide information about a co-worker’s complaint are also protected.
Adverse Employment Action
If an employee participates in the protected activity, the employee is then protected from adverse action. It is easy to figure out that actions such as termination, pay reduction, and demotion are adverse. But what if behavior is more subtle ~ is it then also an adverse employment action? What if the employee’s supervisor is so uncomfortable that she simply avoids him? What if the supervisor issues a memo that says, “Bob pointed out that our safety practices were not up to par. Because of Bob, everyone needs to work for the next three Saturdays to clean up the warehouse?” Is this retaliation?
The answers are not easy and, because the definitions are evolving, employers should be cautious. Employers who focus on promoting good behavior rather than just attempting to just figure out what is legal are more likely to stay out of trouble.
Causal Connection
To show retaliation, the employee must show that the adverse action was taken because of the protected activity. The problem for employers is that some adverse actions are legitimate – an employee who complained about safety violations may be a poor performer. So, do you avoid discipline?
Thankfully, the EEOC does recognize there are legitimate reasons for adverse actions ~ employers are not prohibited from ever disciplining or even terminating an employee who has complained in the past. For example:
· You can give a negative evaluation to an employee with performance problems.
· You can discipline an employee who is always late to work for tardiness.
· You can fire an employee who engages in physical violence at work.
However, if you must take adverse action against an employee who has complained, be prepared to show your valid reasons for discipline, unrelated to the complaint. Those reasons should be supported, if possible, by prior documented warnings to the employee.
What can you do to avoid retaliation
claims?
Employees need to know their complaints and concerns will be handled quickly and fairly. They need trust in the organization. To foster this trust, we suggest the following:
· Adopt and implement a complaint process and pay attention to employees who use it. Encourage employees to bring their concerns to you.
· Train your managers and supervisors on the concept of retaliation so they can monitor their own and their employees’ behavior.
· Have no tolerance for retaliation. Review disciplinary write-ups, pay reductions, and shift changes for possible retaliatory motive. Be on the alert for behaviors that might isolate employees who have complained.
· Communicate with complaining employees. Explain that you are taking the complaint seriously. Explain retaliation and tell the employee that you want to hear about anything that happens that the employee considers hostile or negative.
· Focus on the wrongdoer rather than on the complaining employee when implementing any changes based on an investigation. Why transfer the complaining employee? Instead, discipline the wrongdoer.
· Keep confidential any complaints that you receive. The fewer people who know about a complaint, the smaller the chances are that someone will retaliate against the complainer.
· Discipline the complaining employee for other issues, if necessary, in a fair and consistent manner.
With the focus on anti-harassment and discrimination training, managers and supervisors may be unaware of the risks stemming from retaliatory behavior. Training, emphasizing good behavior, and responding discretely to employee concerns can help employers avoid problems stemming from a complaint. If you need assistance with your complaint process or are concerned about how one of your employees is being treated, contact Personnel Management Systems, Inc. We’d love to help!
Personnel(ly) Speaking is a monthly comment on HR
issues of importance. It is intended to
provide general information and must not be construed as legal advice. Reproductions are allowed as long as credit
for this information is given to PMSI.
We welcome your comments, questions, and concerns. © PERSONNEL MANAGEMENT SYSTEMS, INC.,
Corporate Office (425) 576-1900, Colorado Office (720) 497-0200, www.hrpmsi.com.