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Nip Retaliation in the Bud

It’s the workplace version of road rage: An employee claims harassment or discrimination by a supervisor. The manager denies the charge and says the employee is a troublemaker.

In the interests of peace, the company transfers the complainant to another job. Next thing you know, the firm is slapped with a lawsuit charging that it retaliated by demoting the employee.

Retaliation suits, which occurred less often years ago, now make up an increasing percentage of the legal workload at the Equal Employment Opportunity Commission (EEOC).

Statistics show that in fiscal 2018, retaliation cases totaled 39,469, compared with 32,690 a decade earlier in 2008.

Regardless of the merits of the lawsuits, juries are often more sympathetic to employees than they are to employers.

Here are some caution signs to watch for if they come on the heels of a complaint from an employee:

Changing the status quo. Don’t make work changes, including transfers or modifications in responsibilities or schedules. If you must reassign a complainant, try to get the person’s consent.

Failing to document actions. Avoid disciplinary actions that could be considered retaliatory, such as written reprimands, demotions or terminations. Justify actions with detailed documents showing that the decisions were based on facts unrelated to prior complaints.

Handing out negative references. If you fire a staff member, don’t give poor references or any reference that isn’t required.

Treating employees unequally. Don’t monitor people who file complaints more closely than others. Make sure they aren’t ostracized by managers. Document how all employees perform. Get rid of problem workers early on — for valid reasons.

Getting mad. If someone files a complaint and you feel angry, stay calm and contact your lawyer. Blowing up at an employee might cost you a bundle.

Be on Guard: Understand Protected Activities

To show retaliation in court, employees must show they engaged in an action protected by federal law and then suffered from adverse employer action. Here are four protected activities:

1. Discrimination claims. It’s unlawful to retaliate against employees who raise a bias, discrimination or harassment claim. This includes claims filed in connection with the Americans with Disabilities Act, the Equal Pay Act, the Age Discrimination in Employment Act, the Genetic Information Non-Discrimination Act and the Family and Medical Leave Act.

2. Information related to claims. A company can’t reveal information when an employee is taking part in a legal proceeding, investigation or hearing linked to a federal employment claim. 

3. Whistle-blowing. Federal law bans retaliation against employees who speak out against what they believe to be illegal activities by an organization.

4. Written complaints. The Fair Labor Standards Act protects employees from retaliation when they file formal complaints.

Prevention is the Best Cure

To minimize the chance of a lawsuit, here are more safeguards:

Promote awareness. Set up a written policy banning retaliation and enforce it. Teach supervisors what constitutes retaliation and how to avoid it. Tell all employees that retaliation isn’t tolerated and will result in discipline.

Keep an open-door policy. Encourage your staff to report problems to the company, rather than consult a lawyer. 

Investigate complaints promptly. That way, employees feel inclined to come to you, rather than someone outside the company. Keep your lawyer up to speed. If a charge is filed, try to mediate.

If you have problem employees, they may be watching for retaliatory measures and might even goad managers into inappropriate actions. It takes just a little common sense — and some guidance from your attorney — to avoid costly litigation.