HR managers have a balancing act to perform in preventing retaliation, says Attorney Judith A. Moldover. You’ve got the manager storming around, saying "I’m going to get this person—can I fire him today?" And you’ve also got a complaining employee who is strutting around thinking he or she is bulletproof.
Find the balance, Moldover says. When you get wind of a manager’s action that might be retaliatory, put the situation in context and try to view it from the employee’s perspective.
Moldover’s comments came at the recent Legal and Legislative Conference of HRNY, the New York City chapter of SHRM. Moldover is with the New York City office of law firm Ford & Harrison LLP.
Context Matters
With retaliation, context matters, Moldover says. Take, for example, a schedule change. One person might not care at all, while another might care a great deal. For instance, a single mother with a carefully arranged daycare schedule might find a schedule change adverse if she has no other options.
Similarly, someone with asthma might find a change of workstation adverse if he or she can’t work in certain atmospheres.
Moldover’s Most Important Rule
The most important rule for fighting retaliation is to insist that HR have prior review of any action proposed against an employee who has filed a charge or lodged a complaint.
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Decision makers often want to act fast and be tough, but you can’t let that happen, says Moldover. You have to get wind of any planned change so that you can talk it through before it happens.
Don’t let a manager take an adverse action or what might be considered an adverse action until you are convinced that the decision maker can explain the basis for the action. That’s not just termination, but any form of discipline, lower evaluation, etc., says Moldover.
Ask yourself these questions, she says:
- Will a jury buy this explanation?
- Why are we doing this to this employee?
- Why now?
- Are there alternatives?
Your job is to nip problems in the bud, says Moldover.
How HR Can Help
Moldover recommends the following for HR managers:
Delay action pending investigation. Acting too fast, before you are all on the same page, can have disastrous consequences in court. It may take a few weeks, but you’ll be able to take adverse action secure in the knowledge that you can support the decision.
Deliberate with decision makers. Make sure that you are there when decisions are made, and make sure that all present understand the reasons behind the adverse action.
Don’t deviate from precomplaint practice. Be cognizant of your past practice. When you deviate from it for one employee, you will certainly look as though you are retaliating.
Preventing retaliation is a tough challenge for any HR department, and it’s even tougher in a smaller HR department. And, by the way, preventing retaliation is just one of what, a dozen challenges that will hit your desk today? FMLA intermittent leave headaches, accommodation requests, attendance problems—let’s face it, in HR, if it’s not one thing, it’s another. And in a small department, it’s just that much tougher.
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