Why You Need a Retaliation Prevention Policy

Employee retaliation claims are skyrocketing, and in 2011 these claims were the number one complaint to the EEOC. As a result, you need to know how to prevent retaliation claims from happening.

At SHRM’s legislative conference in Washington, D.C. earlier this month, California employment attorney Jody Katz Pritikin, presented tips on how to prevent and defend against employee retaliation claims.

First, good recordkeeping is key to an employer’s defense, and is a good practice for all employers. In the event that an employee needs to be terminated, the employer can feel safe that its decision to terminate is well-documented and supported by written warnings or other records.

Second, employers must have a retaliation prevention policy. Again, this is the number one claim at the EEOC—it is a good business practice to educate employees and management about what retaliation is and how to prevent it. In their policy, employers should do the following:

• Make a stand-alone commitment in the policy that says the company will not tolerate retaliation by anyone.
• Define retaliation, and give specific examples of retaliatory behavior.
• Outline a complaint procedure that is consistent with other procedures, and make sure there are multiple avenues available for employees to make a complaint.
• Name an ethics officer or ombudsman—but be sure the complaint procedure is centralized so that everyone in the company is on the same page.
• Do not promise confidentiality; rather, tell the complainant that the complaint will be disclosed on a “need-to-know” basis. This is necessary because there needs to be fairness for both the accused and the accuser: if the accused is to respond to a complaint, he/she needs to know who the complainant is and what specific actions are being alleged.
• Set forth the consequences for violations, and administer those consequences fairly and consistently.

Of course, not all retaliation claims will be prevented. But with a policy in place, employers will have a workforce that is aware of what retaliation is and what can happen if the policy is violated. Employers need to be actively involved in their workplaces, and creating retaliation prevention policies is a first step toward creating a more aware (and compliant) workplace.