In yesterday’s Advisor, attorney Joseph L. Beachboard talked about the increasing threat of retaliations lawsuits. Today, steps you might have to take, plus an introduction to the other great lawsuit preventer, the HR audit.
Eric had Standing
First, back to Eric from yesterday’s Advisor. The Supreme Court found that Eric, who was fired because of a protected action taken by his fiancé (see yesterday’s issue for details) had standing to sue, as he was within the “zone of interest,” said Beachboard.
The Court added that “Title VII … enable[s] suit by any plaintiff with an interest arguably sought to be protected by the statutes.” In other words, says Beachboard, Title VII is designed to protect employees from their employers’ unlawful action — even if the unlawful action arises from the protected activity of another.
Beachboard, who is a shareholder in the Los Angeles office of law firm Ogletree Deakins, offered his tips at the SHRM Annual Conference and Exposition held recently in Las Vegas.
Not as Much Help as We’d Like
The Court did not define what relationships are protected from third party reprisals, but Beachboard did offer a general guideline: A close family member will almost always suffice, whereas a mere acquaintance will almost never suffice. In between, it’s still a grey area.
Nevertheless, says Beachboard, we can conclude this: under the old standard, the focus was on the individuals’ own protected activity; under the new standard, the focus is on the individual AND his or her associate’s protected activity.
In Light of Thompson v. NAS
In light of court rulings, it’s more important than ever that performance problems be well-documented, Beachboard says. There’s a wider range of individuals who may claim retaliation so you want to have ironclad reasons (and documentation of them) for adverse actions.
Also, now, prior to taking adverse action, it’s critical to consider whether the subject of the adverse action has engaged in a protected activity but also whether any of those with whom he or she is associated engaged in any protected activity.
Find problems before the feds do. HR Audit Checklists ensures that you have a chance to fix problems before government agents or employees’ attorneys get a chance. Try the program at no cost or risk.
For example, instead of just asking whether the individual about to be fired has recently filed a complaint, now you have to expand that and ask if associates have filed complaints.
Should We Strive to Know Less About Employees?
In the broader context of dealing with retaliation, Beachboard suggests that employers ask three questions of themselves:
- Should we reconsider non-fraternization policies?
- Should we reconsider nepotism policies?
- Should we strive to know less about our employees?
The point of the questions is that employers may want to take steps to reduce the number of relationships that could be involved in retaliation situations, and to reduce the employer’s knowledge of such relationships.
This may be looking too far down the road, he says, but it’s important to consider potential ramifications. “I expect a lot of litigation,” he says, “and that’s good for me!”
Good for Beachboard and your outside attorney, maybe, but not for you. Retaliating, just one of the many things your managers and supervisors could be up to while you’re not looking. The solution? There’s only one … regular audits.
Audits are the only way to make sure that employees in every corner of your facility are operating within policy guidelines. If you’re not auditing, someone’s probably violating a policy right now.
The rub is that for most HR managers, it’s hard to get started auditing—where do you begin?
BLR’s editors recommend a unique product called HR Audit Checklists. Why are checklists so great? Because they’re completely impersonal, forcing you to jump through all the necessary hoops one by one. They also ensure consistency in how operations are conducted. That’s vital in HR, where it’s all too easy to land in court if you discriminate in how you treat one employee over another.
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HR Audit Checklists compels thoroughness. For example, it contains checklists both on Preventing Sexual Harassment and on Handling Sexual Harassment Complaints. You’d likely never think of all the possible trouble areas without a checklist; but with it, just scan down the list, and instantly see where you might get tripped up.
In fact, housed in the HR Audit Checklists binder are dozens of extensive lists, organized into reproducible packets, for easy distribution to line managers and supervisors. There’s a separate packet for each of the following areas:
- Staffing and training (incorporating Equal Employment Opportunity in recruiting and hiring, including immigration issues)
- HR administration (including communications, handbook content, and recordkeeping)
- Health and safety (including OSHA responsibilities)
- Benefits and leave (including health cost containment, COBRA, FMLA, workers’ compensation, and several areas of leave)
- Compensation (payroll and the Fair Labor Standards Act)
- Performance and termination (appraisals, discipline, and termination)
HR Audit Checklists is available to HR Daily Advisor readers for a no-cost, no-risk evaluation in your office for up to 30 days. Visit HR Audit Checklists, and we’ll be happy to arrange it.