An announcement from three federal agencies that they are aligning to protect employees who try to exercise their rights in the workplace means employers need to be especially on guard against actions that may be seen as unlawful retaliation.
The U.S. Department of Labor (DOL), the National Labor Relations Board (NLRB), and the Equal Employment Opportunity Commission (EEOC) on November 10 announced they will collaborate in a new initiative aiming to target employers that unlawfully retaliate against workers. And that means employers should expect increased scrutiny.
“I expect joint educational efforts to start, but I also expect to see information sharing between the EEOC, DOL, and NLRB when one agency identifies what it believes is a violation that may have implications under laws enforced by another agency,” Jeremy M. Brenner, an attorney with Armstrong Teasdale LLP in St. Louis, Missouri, says.
For example, if the EEOC identifies what it believes is an employer retaliating against an employee who is opposing a practice the employee considers unlawful under a law enforced by the DOL or the NLRB, Brenner expects the EEOC to alert the other agency and encourage a parallel investigation.
“The initiative announcement suggests that the agencies view retaliation as a pervasive problem in the American workplace today, and so I expect increased scrutiny of employer practices by all agencies, and cross-agency information sharing will serve to increase the level of scrutiny from the perspective of the agencies,” Brenner says.
Advice to Employers
Brenner says awareness is essential to preventing retaliation. “This means training decision-makers about the various aspects of the law on retaliation and also training them about how to identify and address retaliation or reports of retaliation from within their areas of responsibility.”
Also, employers need to educate employees about their rights and have a defined and published procedure for them to report retaliation issues as well as a mechanism to address those concerns.
“For example, once an employee is fired by someone with a retaliatory motive, it’s too late,” Brenner says.
So, employers must work to prevent adverse employment action before it occurs, and that takes individuals who are trained to investigate and empowered to act.
“Employers need to be prepared for increased scrutiny of retaliation claims from these agencies, and awareness is key to avoiding that scrutiny,” Brenner says. “Once the bell is rung, an employer cannot un-ring it.”
In announcing the initiative, the EEOC, the DOL, and the NLRB said they will collaborate “to protect workers on issues of unlawful retaliatory conduct, educate the public, and engage with employers, business organizations, labor organizations and civil rights groups in the coming year.”
On November 17, the initiative is scheduled to launch with a virtual dialogue with the employer community that will be focused on the importance of workers’ antiretaliation protections and the agencies’ shared commitment to vigorous enforcement.
The agencies said the initiative will build on the work of memoranda of understanding among the agencies and strengthen interagency relationships.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.