Faillace, managing partner of Michael Faillace & Associates in New York City, offered specific steps HR managers can take to prevent retaliation at a recent Society for Human Resource Management (SHRM) conference,
For sure, says Faillace, employment actions such as the following, denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge are adverse actions.
The EEOC also includes threats, reprimands, negative evaluations, harassment, or other adverse treatment, but the federal courts don't always agree on these points.
Actions that have been found not to be adverse actions include:
The EEOC and courts may also define adverse action more broadly as an action “reasonably likely” to deter charging parties from engaging in protected activity.
Faillace offers the following best practice suggestions for avoiding adverse actions:
Yes, you do have the budget and time to train managers and supervisors with BLR's® 10-Minute HR Trainer. Try it at no cost or risk. Read more.
The third element of retaliation claims is the causal connection. That is, the employee must show that the employer took the adverse employment action because the plaintiff engaged in the protected activity. In addition, the suing employee must show that the protected activity preceded the adverse action and that the employer had knowledge of the protected activity.
Sometimes the causal connection is shown by direct evidence, such as e-mails, and sometimes by indirect evidence, for example, time proximity (e.g., fired the day after lodging a complaint).
Once a claim against an employer is established with the three elements discussed above, the employer may defeat it by producing evidence that the employer had non-retaliatory reasons for its action. For example:
Faillace furnishes additional tips for avoiding an inference of retaliation:
Retaliation—one of, what, a couple dozen things your people need training on now? Training is critical, but it's also demanding. To train effectively, you need a program that's easy for you to deliver and that requires little time from busy schedules. Also, if you're like most companies in these tight budget days, you need a program that's reasonable in cost.
We asked our editors what they recommend for training supervisors in a minimum amount of time with maximum effect. They came back with BLR's unique 10-Minute HR Trainer.
Train your line managers with BLR's 10-Minute HR Trainer. There won't be time for classroom boredom. Try it for free.
As its name implies, this product trains managers and supervisors in critical HR skills in as little as 10 minutes for each topic. 10-Minute HR Trainer offers these features:
Trains in 50 key HR topics under all major employment laws, including manager and supervisor responsibilities, and how to legally carry out managerial actions from hiring to termination. (See a complete list of topics below.) Uses the same teaching sequence master teachers use. Every training unit includes an overview, bullet points on key lessons, a quiz, and a handout to reinforce the lesson later.
Completely prewritten and self-contained. Each unit comes as a set of reproducible documents. Just make copies or turn them into overheads, and you're done. (Take a look at a sample lesson below.)
Updated continually. As laws change, your training needs do as well. 10-Minute HR Trainer provides new lessons and updated information every 90 days, along with a monthly Training Forum newsletter, for as long as you are in the program.
Works fast. Each session is so focused that there's not a second's waste of time. Your managers are in and out almost before they can look at the clock, yet they remember small details even months later.
Evaluate It at No Cost for 30 Days
We've arranged to make 10-Minute HR Trainer available to our readers for a 30-day, in-office, no-cost trial. Review it at your own pace and try some lessons with your colleagues. If it's not for you, return it at our expense. Click here and we'll set you up with 10-Minute HR Trainer.
Download product sample
Download table of contents
Download Training Forum Newsletter
If you have comments about this tip and want to post them on this page to share your thoughts with other HR Daily Advisor readers, simply enter your comments below. NOTE: Your name will appear on any comments posted.
Copyright © 2013 BLR Business & Legal Reports Reproduction in whole or in part without permission is prohibited.