In my last Insight, I talked about some alarming statistics regarding retaliation in the workplace.
Retaliation occurs when an employer punishes or takes an adverse employment action against an employee in response to the employee engaging in a protected activity.
Retaliation can include any adverse employment action taken against an employee who complains of discrimination, harassment or a violation of workplace law.
Retaliation also includes an employer taking adverse action against an employee who participates in an investigation of a problem in the workplace.
In order to better understand what I mentioned above, you should learn two key terms: protected activity and adverse action.
Protected Activity—This includes employee actions that are protected from employer retaliation, such as opposing a company policy/practice because the employee believes the policy/practice to be unlawful. Harassment and discrimination would be examples of unlawful policies/practices.
Here’s an example:
Let’s say an employee notices there are unfair pay practices going on at her company, so she files a complaint because she feels the company is not following the law. The company is not allowed to retaliate against the employee for filing the complaint.
Other examples include: filing a complaint for law violations, filing a complaint for fraud or illegal cover-ups, violations of environmental laws, seeking workers’ compensation benefits, filing an unemployment claim, calling OSHA to report a safety violation, etc.
Adverse Action—This is an action that is negative against an employee by an employer.
Examples of adverse actions employers may try to take include: a negative change in the employee’s condition of employment, such as being fired or demoted. It could also include reducing the employee’s pay, giving the employee a negative performance evaluation, changing the employee’s work schedule or shift, taking away job responsibilities, etc.
It’s very important for employers to avoid retaliation in the workplace. Here are some ideas for how they might do this:
- Understand that most employment and labor laws include retaliation protection provisions for employees.
- Don’t react suddenly. If an employee isn’t performing, rather than taking immediate action, start to document the behavior and begin discussing with the employee. It’s easy to react suddenly, but it’s important not to.
- Always have prepared and valid reasons for the actions you take.
- Create a clear policy against retaliation in the workplace.
- Inform your managers and supervisors about their responsibilities related to retaliatory actions and inform them of what won’t be tolerated.
- Provide employees with a clear and defined policy concerning retaliation and the method of reporting retaliation complaints internally. The policy must let employees know that complaints are taken seriously and that the company will follow-through with an investigation and take appropriate action based on the findings.
- Document all steps taken when dealing with retaliation complaints and issues.
- Maintain reasonable confidentiality regarding any complaints.
Examples
I have two examples about retaliation in the workplace that I’d like to share:
- I once had an employer call me to say that he wanted to fire an employee who just returned from Family and Medial Leave because she had a lot of absences and was tardy a lot before she left for the Family and Medical Leave. I explained to the employer that terminating the employee right away could make it seem like he was retaliating due to her taking the Family and Medical Leave.
I instead explained to him that he had to wait to see if the employee’s attendance continued to be a problem now that she was back to work, and to document everything.
It turned out the employee soon returned to reporting to work late and missing work regularly, and the employer ended up terminating her, but using a progressive discipline process, not retaliatory action.
- Another time an employer called me because he had an employee complain of harassment by another employee. He wanted to know if he could move the complaining employee to another department after the incident of the harassment was investigated.
After the complaint was investigated, it turned out the complaining employee was being bothered by the other employee. The employer wanted to move the complaining employee, but I explained to him that, on the heels of a complaint of harassment, the move could be construed by the employee as retaliation.
I recommended talking to the employee to see if she wanted to be moved.
Retaliation in the workplace often occurs because employers don’t know that they are retaliating. Education is the key to overcoming this common workplace issue.