I Retaliated and I Didn’t Even Know It

Today’s complex web of employment laws is not easy to navigate for small and large employers alike. When employees step forward to express concerns on topics such as harassment, safety, wage and hour or discrimination, companies need to not only manage the problem, but the carefully consider the resulting consequences for all parties involved.

Take for instance the following workplace scenarios:

• Beth works for a supplies company earning commissions by selling to established retail clients at their places of business. When a buyer continuously attempted advances toward her during sales calls, she placed a complaint with her own HR department. Beth’s company insisted he cease and desist any advances toward Beth, however, concerned that he would continue, Beth’s company swapped her territory with one that was 10 miles away so that she would not have to call on the customer.
• Frank is an African-American employee who complained that the warehouse in which he works was racially hostile toward him because his coworkers told racial jokes and made racially derogatory implications in day-to-day conversation. In response, his manager transferred him to another site that was statistically more diverse and inclusive.
• Mark is the only male on a large marketing team managed by another male. Mark began to develop concerns that while his teammates were treated pleasantly and their ideas and opportunities were being nurtured, their manager was often abrasive toward or overly critical of contributions from him. Mark approached a VP with concerns that his manager was discriminating in his treatment of men versus women. After some review by the VP, the manager received counseling and to avoid resentment from the manager, Mark was moved to another team that happened to operate during a slightly later shift.

Each of the employers in these cases had good intentions: Remove the associate from hostile, problematic or discriminatory situations to protect them in the future. Each of the employers could also face retaliation claims.

Moving associates geographically, changing their work schedules, or altering their job duties to avoid conflict are just some of the actions you can take that open up a plethora of Adverse Action traps.

• Beth has to develop new relationships and earn trust from a completely new client list as well as travel further away, potentially suffering at least an initial reduction in commissions and incurring additional transportation costs.
• Frank could feel punished by also incurring additional transportation challenges and could feel that instead of resolving the issue, he in fact the one punished for speaking out
• Mark could be losing a desirable shift and the ability to fulfill personal priorities such as picking up his kids after school or taking night courses for an advanced degree.

The lesson from each of the three scenarios is consistent: Don’t be conflict avoidant when asked to problem solve. Address the root of the problem and set clear expectations on behavior moving forward from all parties involved. If a change for the complainer or a witness seems appropriate, involve associate in the discussion before decisions are finalized to ensure they feel whole at the end of the process. Don’t surprise them.

Preventing Retaliation
Your best defense is to take precautionary steps to receive and resolve complaints.

Have an anti-retaliation policy in place: Prior to receiving a complaint, your policy should be clearly outlined. Define retaliation and express that you do not tolerate retaliation from any associate, be it first line employees or managers. Have signed acknowledgements on file. Specify what steps should be taken if an employee feels they are being retaliated against.

Provide the complaining employee with a written acknowledgement of the complaint: Document the when, where and how of the intake of the complaint and that you take it seriously. Give them an expectation that you will get back to them after an investigation and/or within a reasonable time frame and pre-schedule the follow up meeting immediately. Explain what retaliation is. Spell out that you won’t tolerate retaliation from anyone in the company. Clarify that you want them to notify you of anything that happens to them that they consider hostile or negative during the investigation. Refer the employee to your anti-retaliation policy.

Maintain as much confidentiality that you can for complaints you receive. The fewer people who know about a complaint, the less likely that someone will retaliate against the complainer. In many cases you can’t investigate an issue anonymously, and the nature of your investigation may reveal the complainer or the complaint itself. Some state or federal laws prohibit you from demanding complete confidentiality from employees during the process, but you can make sure that you tell only the people who absolutely need to know, define retaliation, and be stern that you won’t tolerate it.

Document, document, close the issue, and document. Take notes of everything you do to prevent retaliation. Having newly signed acknowledgment of receipts for your policies at the start of the investigation and signatures on statements from anyone participating helps to set expectations. Be sure to send a closure letter to the employee confirming resolution of the problem and next steps if they feel retaliated against moving forward.

When Discipline is Perceived as Adverse Action
Keep in mind, discipline is retaliatory only if it occurred because the employee complained. You can take actions against an employee for non-related reasons, such as performance issues, attendance or violation of policies, but there will always be risk that some employees will assume they were taken in retaliation regardless if it was warranted and non-related.

If you have disciplinary issues to address after a complaint, be prepared with proof of valid reasons for any action. Be sure your reasons are supported, if possible, by prior documented warnings to the employee. If the complaint was against a manager who is now submitting disciplinary documents for the employee who complained, involve your HR department for analysis and guidance before proceeding.

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