Claims of Retaliation Are on the Rise

Posted on January 9, 2012 by jill

Legal claims of retaliation against employers have exploded in recent years. An Equal Employment Opportunity Commission (EEOC) chart of statistics from 1997 through 2010, shows that in the most recent year the largest percentage of claims, 36.3% out of almost 100,000 total handled by the EEOC, were in the area of retaliation. Claims of retaliation have increased each year shown and, in 2010, the latest year available, exceeded even those of race which had been the largest category for years. Clearly important and becoming even more so, what exactly is retaliation?

In layman’s terms, retaliation is payback, the act of getting back at someone, harming or punishing the person because of something they’ve done. In the employment law sense, it’s when an adverse action is taken by an employer against an employee for having taken an action that is protected by law; the result is considered retaliation and it is unlawful.

Adverse action by an employer can take many forms: termination, demotion, discipline, salary reduction, negative performance evaluation, change in job assignment, change in shift assignment and can even consist of hostile behavior toward the person by the supervisor or someone else. Obviously, many of these actions may be perfectly legal and within an employer’s rights under proper circumstances. You are free to engage in adverse actions that are brought about by nondiscriminatory reasons even if the employee happened to have filed a claim against you or was out on protected leave. But before embarking on any adverse action, carefully think things through, ensure that HR is involved and be certain there is proper documentation that shows your action was taken lawfully. If you are unsure, it’s well worth it to get sound legal advice.

Here’s an example of a situation you might encounter: when someone is having performance issues, don’t procrastinate; document the problems right away. If the person then requests and becomes eligible for FMLA leave, you want it to be crystal clear that performance issues were already being addressed in advance and are completely separate from the request for leave. If discipline results from the performance issues after the person returns from leave, be sure you have excellent documentation of the lawful reasons for taking disciplinary action. You always want to consider your documentation in terms of how a jury might view it. Timing of and clear communication to the employee about any performance issue or other lawful reason are vital.

Don’t forget that whether or not retaliation occurred may be in the eye of the beholder. Consider whether any adverse action you take may be viewed by the employee as punishment for something they have done that has legal protection. Treating employees humanely and respectfully, even when initiating a disciplinary action, is vital. Not only is it the right thing to do, but employees who are treated disrespectfully can become angry. And angry individuals are much more likely to file a lawsuit, baseless or otherwise, against you.

In addition to taking FMLA leave, what other common employee activities are protected by law? Here are some important examples:

Requesting accommodation under the Americans with Disabilities Act;
Bringing a claim of discrimination;
Taking protected leave under Uniformed Service Employment and Reemployment Rights Act;
Making a complaint of harassment or other workplace violation (such as a safety infraction or a wage-hour law violation;)
Posting comments on social media that qualify as “protected concerted activity;”
Participating in a government agency’s investigation of a claim brought by another employee.

It’s pretty clear that retaliation should be on every employer’s radar screen and it’s key that all of your managers and supervisors be trained to understand it, to understand protected statuses and activities, and to make sure discrimination in general and retaliation in particular doesn’t happen. After all, supervisors are on the front lines where they could make stray comments that might be construed by an employee to be retaliatory. Even unfounded legal claims are costly in terms of time, effort and attorney fees so you want to avoid even the appearance of retaliation. Further, it is ironic that even when an initial claim of a workplace violation is found to be baseless, the employee may still be able to prove that retaliation occurred as a result of his or her making that initial, baseless claim!

And there’s yet another caveat–they say the road to hell is paved with good intentions! Here’s an illustration of good intentions gone bad: Let’s say an employee alleges sexual harassment by her supervisor. In response, you switch the employee’s shift from day to evening so she doesn’t have to work with that supervisor. Guess what? Even though you intended no harm and thought you were trying to help her, if the employee prefers the day shift, she has a claim that you retaliated due to her claim of sexual harassment. In response to a claim of sexual harassment or any other forms of discrimination, don’t focus only the victim and ignore the alleged perpetrator as shown in the example. Conduct a full investigation and, if such discrimination is indeed happening, put a stop to it. And document all of your actions along the way.

So what can you do to prevent claims of retaliation in your workplace? Here are some strategic steps:

Establish a policy. Spell out what retaliation is and make it clear that you will not tolerate retaliation from managers or other employees. Tell employees what steps to take if they feel they are being retaliated against.

Train your managers. Make sure managers and supervisors understand what retaliation is and what your policy says. Make sure they know to always include HR when they wish to recommend an adverse action against an employee.

Respond to all claims and complaints. If a claim of a workplace violation or other workplace complaint is made, communicate with the employee. Explain that you take the claim seriously and won’t tolerate retaliation from anyone in the company.

Keep any claims you receive confidential. Confidentiality is respectful to the employee but there’s another reason: the fewer who know about a claim, the lower the chances that someone will retaliate against that employee. Naturally, when you investigate an employee’s allegation, you will have to tell some people about it but make sure it’s only those who absolutely need to know. And when you tell them, explain what retaliation is and that it won’t be tolerated.

Document, document, document. Take notes of everything you do to prevent retaliation. If an adverse action against an employee is justified, even when an employee has engaged in a protected activity, make sure it’s clear that your action was not in response to the employee’s protected activity or status and was taken for other, lawful reasons (such as poor performance or other job-related reasons) that are well communicated and well documented.

Treat all employees with respect, even when taking an adverse action.

Employment law can seem complex and it may sometimes seem that the deck is stacked against employers. But if you are meticulous, think things through, and document all adverse action properly, you should be able to take adverse actions when appropriate and protect your organization from claims of retaliation and all other forms of discrimination.

Verizon Settles Huge ADA-related Lawsuit

Posted on July 18, 2011 by jill

The largest single class disability discrimination lawsuit, brought by the Equal Employment Opportunity Commission (EEOC) against Verizon Communications, was recently settled to the tune of 20 million dollars. The suit contested Verizon’s “no fault “ attendance policies because of their inflexibility which did not allow for reasonable accommodation of individuals with disabilities, in violation of the Americans with Disabilities Act (ADA.) The EEOC maintained that, as a result of the attendance policies at the 24 Verizon subsidiaries named in the suit, hundreds of disabled individuals who had needed accommodation were disciplined or terminated. In addition to the large payout, Verizon will be required to overhaul a number of its policies and provide mandatory training to those who administer them, will have additional reporting requirements to the EEOC and must appoint an internal consent decree monitor. Further details are outlined on the EEOC web site.

The Verizon case represents an important lesson for all employers: you must provide a reasonable accommodation, such as paid or unpaid leave, to an employee with a disability, unless doing so would cause an undue hardship, i.e. significant difficulty or expense. Always keep the ADA in mind when crafting leave policies and carefully consider potential ADA situations when considering termination or other adverse employment actions.

The Importance of Job Descriptions

Posted on April 29, 2011 by jill

We’ve been thinking a lot about job descriptions here at HRSentry®, having recently launching a new product called Job Descriptions Made Simple which helps users quickly assemble job descriptions that are ADA-compliant. Job descriptions aren’t legally required and, as writing them sometimes feels daunting, you may be tempted to avoid having them or to not update the ones you do have. But I would argue that job descriptions are helpful for myriad reasons and provide important legal protection for your organization.

Why have job descriptions? They serve as a communication tool between the employer and employees so there’s mutual understanding about the expectations and responsibilities of the position. They provide a useful reference for performance management and as grounds for termination if an employee cannot or will not meet the written duties and expectations of the job. Job descriptions justify Exempt or Nonexempt categorizations as required by the FLSA and they can protect an organization from employment claims brought under the ADA or Title VII. The key is to do them well.

Be thoughtful about making sure all the “essential duties” of the position are documented. The EEOC describes these as the tasks which are fundamental to the position and, if removed, would fundamentally change the job. You can also think of essential duties as the reason the job exists. If you are creating a description of a position that isn’t new but already exists, get input from the person doing the job as that person knows the job well and will appreciate being consulted.

When culling the essential duties in a job description, focus on what needs doing, not on how it’s done. Here’s an example: don’t say, “lift up to 50 lbs. equipment” if what is actually required is that the equipment be moved. The function to be accomplished is transporting the equipment so that’s what you should say to make sure you don’t exclude individuals who might need a reasonable accommodation such as using a dolly.
You should also pay attention to bona-fide occupational qualifications (BFOQ) to make sure the job description does not violate Title VII or other laws related to protected to class protection, such as those based on race, gender, age, national origin or pregnancy status. So, for instance, don’t specify that the job occupant needs to male or female unless you can prove that it’s really required to this this job. For instance, a counselor of a support group for teenage girls discussing sexual issues needs to be a woman if the girls are to feel comfortable opening up. So being female in this case is a BFOQ.

As mentioned job descriptions are not legally required but, if you have them, they are treated as legal documents and they must be kept for at least two years. So be thoughtful and careful about creating them and consider using Job Descriptions Made Simple to ensure they work well for you!

ADAAA Update

Posted on April 11, 2011 by jill

The Americans with Disabilities Amendments Act (ADAAA) has been with us for a couple of years but the final interpretation of the expanded coverage under the Amendments Act is just recently in. The ADA precludes discrimination in hiring and employment decisions. So what does the final interpretation mean for you as an employer?

The main thing is that a lot more people than ever before will qualify for protection under the Act. This makes it vital to consider possible ADA-related effects before taking any employment action. Coverage now includes an array of impairments including those that are episodic such as cancer or diabetes. Also included are mental illnesses and learning disabilities. As diagnoses of some of these conditions increase, the number of applicants and staff you encounter who are protected by the Act will likewise continue to grow.

There are three categories of covered individuals:
1. Someone who is disabled
2. Someone who has a record of being disabled
3. Someone who is regarded as being disabled.

An individual who falls under one of the first two categories may request “reasonable accommodation” and you should comply if the situation warrants and the accommodation does not create an “undue hardship” for your organization. Remember, however, that the person must be able to perform the essential functions of the position with such accommodation. You are under no obligation to employ someone who can’t do the job. Perform a thorough analysis and make sure all job descriptions are complete and accurate.

Be mindful that an individual who claims to fall under the “regarded as” category may also bring a claim of discrimination. Therefore, every employment action should be viewed in light of the ADA. Make ADA training mandatory for every supervisor and manager in your organization. Be sure they understand that more employees and applicants than ever before will be covered and that an ADA lens needs to be used to view employment situations and actions.

Webinar: The Bermuda Triangle of Leave Laws

Posted on September 10, 2010 by admin

Join us on Thursday September 16th, 2010 for a webinar on the three major leave laws. The Family and Medical Leave Act, Workers Compensation and The Americans with Disabilities Act are all confusing on their own – but when they combine its the Perfect Storm for the HR Dept! Join us to learn how to stay in compliance with all 3 laws and how to coordinate them to best serve your organization and your employees legally!

The webinar will take place on Thursday, September 16th from 2:00-3:00 p.m. and it will be presented by Brenda JM Sabin, CHP HRSentry’s Director of Operations and Site Administration.

All webinars are available free of charge to HR Made Simple users. Non-users will be charged $99.00 to register for a spot, click here for more information.