 |
|
MRSC has joined with Janice Corbin and Janet May, Partners, Sound Employment Solutions, Rhonda Hilyer, President, Agreement Dynamics,and Bruce Schroeder, Employment/Litigation Attorney, Summit Law Group, to bring you the "HR Advisor" article series on employment and labor law issues affecting Washington local governments. The "HR Advisor" will feature a new article each month with timely HR management information and advice you can use.*
Preventing Retaliatory Behavior
January 2004
Janice Corbin and Janet May
Sound Employment Solutions, LLC
Employment laws prohibit employers from retaliating against employees who engage in activities protected by those laws, such as making complaints or participating as a witness in an investigation. It is human nature for a supervisor or fellow employee who is the subject of a complaint to have hurt feelings, or to feel that the employee who filed the complaint is disloyal or causing trouble for everyone. When the supervisor or employee acts on those feelings, however, the individual may engage in retaliatory actions. It is not uncommon for an employer to escape liability on an original employment claim, and then later be found to have retaliated against the complainant.
Most courts require that alleged retaliatory conduct be shown to be materially affecting the employee's terms or conditions of employment. The EEOC, however, tends to be much broader in its interpretation of what constitutes retaliation. Threats, harassment, and poor ratings on a performance evaluation are a few actions that may be viewed by the EEOC as retaliatory. Although slights or trivial annoyances are generally not actionable even by EEOC standards, what the supervisor views as a "slight" may differ significantly from how the employee perceives the supervisor's behavior or actions. When assessing potential retaliatory conduct, consider how a juror may view the conduct, remembering that many jurors have had a boss or coworker who "got even" with them in some fashion at some point in their careers.
It is imperative that employers take steps to prevent retaliation from occurring in the workplace. Stopping retaliation, or taking remedial action to stop it once it has been discovered, can avoid further litigation or at least help minimize the litigant's damages. The following are steps you as an employer can take to help lower your risk:
Develop and Publish an Anti-Retaliation Policy
Enforcement agencies will want to know that you have a well-publicized anti-retaliation policy. Although the policy can be incorporated into your anti-harassment policies, making the anti-retaliation policy into a separate policy helps emphasize its importance and keeps it from getting lost or overlooked. The policy needs to clearly state that retaliatory conduct will not be tolerated, and that it is cause for disciplinary action up to and including termination. To avoid any suggestions from employees that the policy is confusing, or did not alert them to potentially wrongful conduct, the policy statement should define protected activity, define retaliation, and provide a general descriptor of the types of conduct that may be viewed as retaliation.
Investigate Allegations of Retaliation and Take Immediate Corrective Action
It is important that all employees see that the anti-retaliation policy is enforced and that those who violate the policy are dealt with immediately. Regardless of how slight the acts of retaliation may appear, stop the retaliatory behavior before it gains momentum and results in behavior or conduct that may be in violation of the law, or at a minimum, is more disruptive to the work place.
Management Must Know and Understand the Anti-Retaliation Policy
Train your managers and supervisors regularly about the anti-retaliation policy, and in particular, how they should interact with employees who may be "opposing" or "participating" in protected activity. Remember that it is human nature to have hard feelings about the complainant. If those feelings are acted upon, however, in a manner that adversely affects the complainant, the manager or supervisor may be found to have engaged in retaliation. It is a good idea to remind all supervisory personnel about the employers' anti-harassment and anti-retaliation policies on an annual basis.
When a complaint is filed against an individual, such as a supervisor or coworker, it is a good idea to meet with that individual to discuss the anti-retaliation policy and clarify that the employee may be subject to disciplinary action or increased personal liability if the employee engages in retaliatory conduct. Provide the employee with a copy of the anti-retaliation policy. You may also want to provide the employee with a hand-out that identifies examples of conduct that may be seen as retaliatory, and have the employee acknowledge receipt of the information.
Publish the Anti-Retaliation Policy Often
It is important that all employees know of the anti-retaliation policy, and equally as important, that they know how and where to file a complaint. Some employers maintain hotlines, while others designate a single individual, such as an EEO officer, as the employer's designated person to receive such complaints. Regardless of who is designated to receive the complaint, make sure employees know who that individual is, and make sure the individual understands his/her obligation to investigate when a complaint of retaliation is made.
Monitor the Treatment of the Employee Who Filed the Complaint
Designate an individual, not named in the complaint, who will check in periodically with the complainant to make sure the complainant is feeling comfortable in the workplace, and is not experiencing retaliation.
Continue to Take Appropriate Disciplinary Action and/or Address Performance Deficiencies
Some employers may hesitate to deal with the complainant's poor performance or misconduct for fear that such actions may be viewed as retaliatory. Such an approach can be detrimental to the employer's operations, and sends the wrong message to other employees who are properly performing their duties. Sometimes the employer simply must take steps to address the employee's poor performance, or respond to misconduct by issuing discipline. The key to not having this action viewed as retaliatory is to ensure that the employer has taken similar steps when other employees have demonstrated poor performance or been found to have engaged in similar misconduct. The employer's consistency in dealing with similar issues is critical to defending a retaliation claim. Finally, it always helps to have a meaningful performance evaluation system in place, and policies and procedures that define employee misconduct.
Don't Retaliate Against Former Employees
In some instances, the complainant will simply choose to resign. The resignation does not mean that the potential for retaliation leaves with the employee. What the employer says to the former employee's prospective employer may or may not increase the risk of a post-employment retaliation claim. Established policies and procedures specific to providing references for former employees, and the consistency in how those policies and procedures are applied can be very effective in avoiding a retaliation claim when contacted for a reference about a former employee. If your policy is to provide references to prospective employers, then you must do the same for the complainant who resigned. Similarly, if you have a policy of only providing the dates of employment, you should not suddenly provide more information about the complainant. If a reference is provided, it is important to strike the balance between providing honest information, especially if the former employee had performance or conduct related issues, and yet not be unjust or overly critical and negative. You should stick to verifiable facts, and avoid unsupported opinions.
The employer should not volunteer to the prospective employer information indicating that the former employee has/had employment complaints. If asked, the prospective employer should say that this type of information is not shared with persons outside the agency.
| Bruce Schroeder is an employment / litigation attorney with Summit Law Group, Seattle. Bruce's practice is concentrated on representing management in the entire range of employment law matters. More. |  |
|
Janice Corbin is a partner with
Sound Employment Solutions, LLC, Seattle. Janice has over 15 years of
human resources experience with the Seattle Police Department and the
International Harvester Truck Company and has worked in the law enforcement
field for over 22 years.
More. Janet May is a partner and attorney with Sound Employment Solutions, LLC, Seattle. Janet has over ten years of experience in the labor and employment law field, and has represented both management and labor. More. |
 |
| Rhonda Hilyer, President and Founder of Agreement Dynamics, is an international consultant with a reputation for helping convert traditional, conflict-based environments into productive, collaborative ones. More. |  |
*The Articles appearing in the "HR Advisor" column represent the opinions of the authors and do not necessarily reflect those of the Municipal Research & Services Center.