Gauge your managers’ current knowledge about retaliation with these quick cases:
- Peter worried that a dangerous chemical was being used without proper protection, and he reported it to the federal Occupational Safety and Health Administration (OSHA). His boss, Sheila, was not happy. “Peter’s wrong,” she said. “There’s nothing unsafe about our process. And I’m miffed he didn’t come to me first. I guess he’s not the team player I thought he was. He’s not going to get that promotion after all.”
- Meanwhile, up in Accounting, Sally took FMLA leave at “crunch time” to care for her sick mother. A month later, Sally didn’t get the raise that others in her department did.
Do these scenarios depict retaliation?
The first case certainly seems to. In the second case, it’s not clear. There is no direct evidence of retaliation, but there is an appearance of retaliation. Bottom line, the organization is likely to see a retaliation lawsuit from one or both of these situations.
Unfortunately, retaliation is a natural reaction. No manager or supervisor wants to deal with unwarranted government investigations or have to cope with the absence of a top employee at a particularly busy time. But managers and supervisors must learn to resist the urge to retaliate. Retaliation claims are simply too time-consuming and expensive for employers to defend.
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. Get details.
Train your managers and supervisors on the following key information about retaliation:
What Is Retaliation?
Retaliation occurs when employers take action against an employee—such as firing, demotion, or denying a raise or a promotion—for doing something the employee had a right to do (or a right not to do).
Retaliation Danger Zone
You may not retaliate against an employee for taking protected actions such as those listed below. These employees are in the “retaliation danger zone.”
Civic duties
- Voting.
- Performing jury duty.
- In some states, answering a subpoena to testify.
Safe workplace—Reporting unsafe situations in the workplace.
Illegal actions
- Refusing to perform an illegal act. For example, refusing to falsify testimony or participate in a price-fixing scheme.
- Reporting illegal activity (whistleblowing).
Uphold the public interest—In some states, acting in the public interest is protected. Workers who are doing the “right thing” may be protected even though there may be no specific law protecting their action.
Legal activities outside of work—In some states, engaging in legal activities outside of work is protected. Many of these laws were passed to prohibit discrimination against smokers, but they may also protect other social activities.
Garnishment—Having had one’s pay garnished (reduced by court order).
Medical leave—Taking leave under the Family and Medical Leave Act.
Disability accommodation—Requesting reasonable accommodation under the Americans with Disabilities Act.
Workers’ Compensation—Filing a workers’ compensation claim.
Harassment—Complaining about harassment.
Union activity—Participating in certain union activities under the National Labor Relations Act. Even in nonunionized organizations, employees have the right to engage in “concerted” activity.
Political activity—In some states, engaging in certain political activity is protected.
Compensation—Making complaints about wage and hour issues.
Benefits—Exercising certain rights pertaining to pensions and other benefits under the Employee Retirement and Income Security Act. For example, employees may not be terminated just so the employer can avoid providing a benefit, such as vesting.
Veterans’ rights—Taking leave for certain military service and the right to return to work under certain circumstances.
Train your line managers with BLR’s 10-Minute HR Trainer. There won’t be time for classroom boredom. Try it for free.
Secondary Claims
Often a retaliation claim is secondary to another claim. The employee sues for sexual harassment, and then claims that he or she was retaliated against for having filed the claim. Surprisingly, the retaliation claim is often upheld even when the main claim is not.
Why? Juries easily grasp the idea of retaliation and they are sympathetic to the employee. Also, employers often have solid evidence to refute the original claim, but have weaker evidence to refute the retaliation claim.
Appearance of Retaliation
Many retaliation charges are based almost entirely on unfortunate timing. For example, an employee requests leave, files a sexual harassment charge, or makes an OSHA complaint. Two weeks later he or she is fired and charges retaliation.
Now you’ve got a tricky task to prove your case. If your documentation and reasons for the firing are not airtight, you’ll have a difficult time convincing a jury that the firing wasn’t retaliation.
In tomorrow’s Advisor, how to keep your managers out of the danger zone and an introduction to a unique 10-minute trainer program that will help your managers stay out of legal hot water.