Q: I recently heard that claims against employers for retaliation are on the rise. Is this true? If so, what is retaliation? When am I at risk for this? What can I do to protect myself?
A: Claims of retaliation against employers are one of the fastest growing areas of employment litigation. The Equal Employment Opportunity Commission’s (EEOC) most recent statistical report for fiscal year 2011 reveals that of all claims of discrimination handled by the EEOC, retaliation claims under various federal antidiscrimination statutes were the most common, accounting for 37.4% of all private sector charges received.
Additionally, adding insult to injury, recent decisions by the U.S. Supreme Court have made it easier for employees to assert claims of retaliation against employers.
As background, employees are protected from retaliation when they engage in a “protected activity,” such as reporting the perceived wrongs being committed by their employer. Thus, if an employer takes disciplinary action against an employee who reports wrongdoings, then the employer could be held liable for having retaliated against that employee and be subject to financial judgments.
This reporting of wrongdoings, often referred to as whistle-blowing, can occur directly to the employer or externally to government-type agencies. Regardless of how it’s reported, once it happens, actions taken against that employee may be construed as retaliatory.
Once upon a time, retaliation claims had to stem from an employer making ultimate employment decisions, such as firing, against the employee who allegedly exercised his or her protected rights. Now, however, many non-ultimate employment decisions may also be considered retaliatory. For example:
- Coworker harassment
- Reduction of overtime opportunities
- Taking away duties or responsibilities
- Unwarranted discipline or negative performance evaluations
Just because the employee is engaged in a protected activity doesn’t mean he or she is entirely untouchable. However, extreme caution and care must be taken when issuing disciplinary action or terminating the protected employee in order to avoid potential claims of retaliation.
As always, documentation is of the highest priority. If the situation has been an ongoing problem, there should be documentation in place that shows a pattern of behavior and a failure to improve. If this is a new issue, make sure to accurately document the reason for taking the action, which should ultimately include communication of the practice rules and/or policies that have been broken. Provide as much information to the employee as possible — the more clear the employee is about why the disciplinary action is being taken, the less the perception of the need for retaliation.
The employer must also ensure that the issue being addressed or the reason for termination is consistent. For example, an employee with a history of satisfactory performance evaluations who suddenly receives a poor review right after exercising his/her rights may question the timing and open the door to a retaliation claim. Consistency may also mean aligning actions with how other staff members have been treated in the same or similar situations.
Documentation and consistency in staff management are important at all times. With these, you will increase your odds of never having to fight false claims of retaliation.
The opinions expressed above are based on the writers’ comprehensive backgrounds as human resources professionals and the policies in our Bent Ericksen & Associates products having been reviewed by legal counsel. The writers are not attorneys, and the advice provided in this message should not be construed as a legal opinion. If you have legal questions after considering the advice and reading any materials referenced, it is recommended that you consult with your attorney.
Tim Twigg is the president of Bent Ericksen & Associates, and Rebecca Crane is a human resource compliance consultant with Bent Ericksen & Associates. For 30 years, the company has been a leading authority in human resource and personnel issues, helping dentists deal successfully with the ever-changing and complex labor laws. To receive a complimentary copy of the company’s quarterly newsletter or to learn more about its services, call (800) 679-2760 or visit www.bentericksen.com.