Retaliation claims by employees against their employers are easy claims to make and difficult to defend. They are now, in fact, the most common employment claim asserted against employers, ahead of discrimination and harassment claims. Why, and what can an employer do to guard against them? In this podcast, Cook Brown Partner Barbara Cotter discusses retaliation claims – the grounds for these claims, how and when they are alleged, and the policies that employers can enact to help avoid them.
Hello, and welcome to Cook Brown’s podcast series. Cook Brown is a labor and employment law firm that partners with employers to keep the workplace working. In this installment of our series we’re going to talk about retaliation claims in the workplace.
I’m Barbara Cotter, a partner here at the firm.
We’ll cover three important points:
- First, how the law defines retaliation in the employment context.
- Second, why it’s so important for employers today to proactively guard against employee claims of retaliation.
- Third, some tips to avoid retaliation claims.
Before we start, I’d like to remind you that this podcast is for general information purposes only. It doesn’t create an attorney client relationship between Cook Brown and the listener, should not be treated as advice specific to your situation. Obviously, it is important that you consult an attorney for specific advice.
In the employment context, retaliation occurs when an employer takes an adverse action against an employee because that employee engaged in a protected activity.
Protected Activity and Adverse Action
Protected activity would be an action such as complaining about pay practices, harassment for one’s self or another employee, or any other exercise of a lawful right to complain.
What then is adverse action? That could be a demotion, termination, suspension, or reduction in pay. Essentially, it would be any act that would motivate an employee to stop exercising a projected right such registering a complaint.
So we put these two elements together: is there some kind of punitive action toward an employee because that employee engaged in a protected activity?
Let me give you an example. An employee tells a payroll clerk in your office that he or she did not receive the correct amount of overtime. The employee is angry about that and wants to know whether he or she will receive compensation. Shortly after that, the employee is terminated, demoted, suspended, or his or her pay is docked. Any of those adverse actions taken on the heels of a complaint could be seen as retaliation.
And of course there has to be link between the protected activity and the demotion or suspension, and that’s where the motivation comes into play. The employee has to show that the adverse act was motivated by his or her complaint or exercise of a protected right.
The Concern about Retaliation
Why are we concerned about retaliation now? What’s the focus? Both the federal Equal Employment Opportunity Commission and the California Department of Fair Employment and Housing have documented dramatic increases in the number of retaliation claims filed. We’re not certain why, but we can speculate that one of the reasons is that the awards in some of these lawsuits that have gone to trial have been huge and they have been publicized. That in itself will trigger interest in filing retaliation claims.
Keep the Workplace Working
Now you have a working definition of illegal retaliation and hopefully understand the need to take some action to protect your company from a claim. What steps can we take to prevent these claims? There actually are some very concrete and simple steps that will make a huge impact on minimizing the chance of a retaliation claim.
First, it’s important to have an anti-retaliation policy and a documented process for employees to voice a complaint. Make the policy express, post it, put it in your handbook, “This company does not retaliate when employees engage in protected activity such as complaining.”
Make sure that you actually have a complaint mechanism such as a hotline or an open-door policy. You will be able to point to the fact that your company respects an employee’s right to complain and will process the complaint accordingly.
Second, make sure you have some training on preventing retaliation. You’ll want to make sure that everyone from the bottom ranks to upper management understands the employee’s protected right to voice a complaint or concern and that retaliation is illegal. You’ll want to provide training, not just to your HR team but to those employees who are in the field and those who are making decisions about discipline, suspension, demotion, or termination.
A lot of times, foremen or supervisors simply don’t understand the potential consequences of retaliation. They think they’re acting on behalf of the company but they could be damaging the company.
The only way to avoid that problem is training.
Third, and I can’t stress this enough, if you are taking adverse action against an employee for a legitimate reason – and as an employer it is likely that you will at some point be taking adverse actions for good reasons – make sure you tell your HR team and that you document exactly why you are taking those actions and the lawful reasons for those actions. If the case is ultimately filed, the court will examine those reasons carefully, and if those reasons don’t hold up, if it looks like they’re contextual, that’s where an employee will have a chance of winning a retaliation claim. The documentation is critical to your defense.
In sum, retaliation claims are on the rise. You want to minimize your chances of having such a claim occur in your workplace. Training your supervisors, managers, and HR department to recognize that retaliation claims are problematic and that there are steps that you can take to prevent them will be key in keeping the workplace working smoothly.
Again, I’m Barbara Cotter. Thanks for joining us.