Avoiding Employee Retaliation Claims
Director of Compliance
Employee retaliation claims are the most common charge faced by employers. Unlawful retaliation occurs when an employer takes adverse action against an employee—such as termination, suspension, demotion, pay cut, written reprimand, verbal warning, or other type of discipline—for engaging in protected activity. Protected activity for an employee can include things like taking federal or state family leaves, requesting an accommodation for a disability, complaining about wage payment errors, reporting an employer’s violation of the law, or participating in an internal or external investigation. Although some employee retaliation claims have substance, many do not and to guard against unfounded retaliation claims, employers should consider the following:
Consistently document employee performance problems.
Although it can be time-consuming, consistently documenting employee performance problems can establish that an employee was disciplined for performance reasons and not for participating in protected activity.
Timing can be everything.
A proximity in time between protected activity and adverse action does not automatically create liability for retaliation, but it can support that conclusion. Biding time before disciplining an employee who recently engaged in protected conduct is often a smart move for employers. And employers should not undervalue the importance of a prompt investigation into an employee’s workplace complaint.
Examine past practices.
Treating employees consistently goes a long way toward avoiding retaliation claims. Employers should ask themselves if proposed adverse action against an employee is consistent with the way the employer handled the situation before. Employers will have difficulty winning a retaliation claim if an employee can show that others who engaged in the same conduct were not subjected to the same discipline.
Even if supervisors and managers are not involved in the HR administrative process, they should be trained in employee leave entitlements, wage and hour protections, scheduling requirements, and safety rights in order to avoid circumstances that could lead to retaliation claims.
Maintain complete and accurate job descriptions.
Complete and accurate job descriptions can help employers fend off retaliation claims in cases where employees returning from medical leave are not reinstated to their former position because work restrictions prevent them from performing their jobs. Properly crafted job descriptions can show the worker (and a court or government agency, if necessary) that the restrictions do not allow the employee to perform the essential functions of their job, with or without reasonable accommodation.
Establish a policy against retaliation.
Even before an employee engages in protected activity, employers should have a clear policy prohibiting unlawful retaliation. This policy should describe what retaliation is, emphasize that retaliation is not tolerated, and inform employees how they should report it. The seeds of retaliation claims are commonly sown when employees feel their complaints are not welcome or remain unaddressed.
Workplace retaliation lawsuits have become a big business.
Employers are often so busy trying to comply with the technical aspects of the FMLA, the Americans with Disabilities Act, the Fair Labor Standards Act, and other federal and state employment laws, they forget that they can be sued for unlawful retaliation even if they comply with these laws. The significant financial exposure retaliation claims pose for employers, along with the huge number of these charges being filed, means employers can no longer overlook the possibility of retaliation claims when dealing with employees.
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