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.
Employees have a natural, perhaps downright all-American, tendency to think they have a right to say anything they want, especially when it’s on their personal computer during their personal, non-work time. But it’s not that simple, for employees nor for their employers.
Section 7 of the National Labor Relations Act (NLRA) protects an employee’s right to “protected concerted activity.” This means that employers are precluded from retaliating against employees because they discuss wages, benefits and terms and conditions of employment, whether at the water cooler or on their personal Facebook page. This doesn’t give free rein to employees, however, as gratuitous griping is not considered protected activity. One further point that is key for employers to understand: the NLRA protection applies to all employees, union and non-union members alike.
Here are a couple of cases filed with the National Labor Relations Board (NLRB) to illustrate the concepts:
(1) A worker is terminated for posting pejorative comments about her supervisor on her Facebook page. Her remarks included the complaint that the supervisor didn’t allow her to have union representative assistance when responding to a customer’s complaint about her work. Fellow workers posted supportive comments which led to further negative remarks being posted by the employee. The employer found out and terminated her based on their social media policy which prohibits employees from making disparaging remarks about the employer or fellow employees.
The NLRB ruled that the employee’s postings constituted protected concerted activity, that the disparaging remarks were intertwined with discussion about working conditions.
(2) In a case against Wal-Mart, an employee was likewise terminated for making disparaging remarks about his supervisor. The Individual complained about “management tyranny”; this time the NLRB deemed the comments to be griping, which is not considered protected activity.
These distinctions can be a bit murky so be extremely careful if you believe you need to terminate someone based solely on use of social media such as a tweet or Facebook posting. Get qualified legal advice first to make sure you are not in violation of the NLRA.
As the saying goes, statistics don’t lie. Well, maybe they can be misleading at times. But the EEOC’s recent publishing of its chart of charges filed by individuals from 1997 through 2010 contains important information. The steepest rise in filings against employers has been in the area of retaliation. That’s when an organization is accused of taking an adverse employment action, such as termination or discipline, as a result of an employee’s engaging in a protected activity such as bringing a claim of harassment, taking protected leave or participating in protected union activity.
This doesn’t mean that you can’t legitimately fire someone who deserves it. But the message is this: before taking any sort of adverse action against an employee, make sure you have documentation that the action is related to job performance or some other legitimate reason. And if the employee has recently engaged in a protected activity, be sure to conduct a careful analysis of the circumstances and to have proper documentation to prove that your action is not retaliatory. Your best protection is to have a policy against retaliation, train your managers in it, communicate with an employee who brings forth a claim, and to document, document, document.
Subscribers to HRSentry have excellent resources at their fingertips 24/7! These include resources on retaliation, its prevention and proper termination to reduce your organization’s risk.
When an employee has been terminated, or has decided to leave your company, conducting an exit interview is an important part of the process. Exit interviews are an opportunity to gain objective insights into what your employees think is right and wrong about your organization. When done properly, exit interviews can help to identify and resolve workplace problems, minimize resentment and misunderstanding when employees leave, and boost employee retention in the future.
Exit interviews are valuable whether the termination is involuntary or voluntary, and they can generate a huge amount of useful information about your organization’s working environment. Another benefit of exit interviews is that they can help tip up loose ends with the departing employee, and may also head off the unpleasant repercussions that can arise from an unpleasant dismissal situation. An exit interview is typically conducted one to two days before an employee’s separation date. The purposes of an exit interview include things such as:
Identifying the reason the employee is leaving the organization, if the termination is voluntary
Reiterate the reason for dismissal, if the termination is involuntary, in order to identify any areas of misunderstanding
Explain any conversion or continuation of benefits
Verify the employee’s address for mailing important documents and information such as the IRS W-2 Form
Explain the organization’s policy on providing references
Discuss the return of any employer property
To ensure that the exit interview goes smoothly, it is important for the interview to be conducted by a neutral party such as a member of the HR department, or another member of upper management. Many experts feel that having the employee’s supervisor present at the exit interview can inhibit the conversation. It is important to create an atmosphere that the department employee is comfortable in, and encourage them to share their honest views about the company, its management practices, and any specific details relating to their job.
For more information regarding exit interviews including what types of questions to ask, and how best to use the information from an exit interview, HR Made Simple Users should log in and search Exit-Interviews. View exit interview checklists and other relevant sources by visiting the newest section of our website HR Resources Now.
Eventually, almost every company or organization will find themselves with an employee that they need to terminate. However, there are some situations where the reason the company wants to terminate the employee is not a valid reason for termination, and is in fact illegal. To avoid lawsuits, it is important to make sure that your company does not illegally terminate an employee. Both state and federal law forbid employers from using certain reasons to fire an employee, and these prohibitions apply regardless of whether the employee has a contract for employment or not.
The first illegal reason for terminating an employee is Discrimination. Federal law makes it illegal for most employers to fire an employee because of the employee’s race, gender, national origin, disability, religion or age (if the person is older than 40). Federal law also prohibits most employers from firing someone because that person is pregnant, has recently given birth, or has any related medical conditions. Most states also have anti-discrimination laws that include all of the characteristics listed in the federal laws, and more.
The second illegal reason for terminating an employee is Retaliation. It is always illegal for employers to fire employees for asserting their rights under the state and federal anti-discrimination laws described above.
The third illegal reason for terminating an employee is their Refusal to Submit to a Lie Detector Test. The federal Employee Polygraph Protection Act prohibits most employers from terminating employees for refusing to take a lie detector test. In addition to this, many state laws also set out strong prohibitions against using lie detector tests.
The fourth illegal reason for terminating an employee is in regards to their Alien Status. The federal Immigration Reform and Control Act prohibits most employers from using an employee’s aliens status as a reason for terminating that employee, but only so long as that employee is legally eligible to work in the United States. If they are not legally eligible to work in the United States this does not apply.
The fifth and final illegal reason for terminating an employee is if they complain about OSHA Violations. The federal Occupational Safety and Health Act (OSHA) makes it illegal for employers to fire employees for complaining that work conditions fall short of complying with state or federal health and safety rules. In an instance where a company does find itself with an employee noticing that there are OSHA violations, it would be smart to reward this employee for noticing the issue and it is important to make sure that any OSHA violations are fixed immediately.
Terminating an employee is never an easy task, and it can become much more complicated if they are being terminated for an illegal reason. It is important to be aware of why and why not a company may terminate an employee. For more information on this and other best-practices regarding termination, HR Made Simple users should log in and search Termination Practices. Also, be sure to check out our blog for the first part in this three part series on best-practices in regards to termination.
