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Watch Your Response: Why Employer Retaliation Is a Big Problem in Today’s Workplaces

Published on 9/28/2016 12:00:00 AM
Non-exempt employee overtime rules and guidelines for managers to avoid potential labor law violations after the recent FLSA changes.

Retaliation continues to rear its ugly head in workplaces. In 2015 alone, retaliation was the biggest type of charge filed with the Equal Employment Opportunity Commission (EEOC). At 44.5 percent of total charges filed, it surpassed race, harassment, disability and sex charges.

What, exactly, is retaliation? And why do so many employers get into legal trouble with it?

A Serious Issue That Can’t Be Ignored

Retaliation comes in many forms, but it typically involves any action against an employee after he or she has engaged in “protected activity,” such as making an internal complaint, filing a charge with a government agency (the EEOC and others) or acting as a witness in an investigation. First, the employee speaks up, makes an accusation or pursues his/her legal rights, then the employer responds inappropriately or downright illegally.

So what does workplace retaliation look like? It can occur through any of the following:

Firing the employee
Refusing a promotion or raise
Reducing the number of hours an employee can work
Excluding the employee from meetings and other company-related activities
Transferring or demoting the employee
Evaluating an employee more severely than others (such as giving a bad performance review)
Creating an uncomfortable or hostile work environment

Keep in mind: It’s relatively easy for a disgruntled employee to win a retaliation claim by showing a connection between
1   engaging in a legally protected activity and
2   experiencing any of the above adverse actions.

The EEOC is the government agency hit the hardest with retaliation claims, because it enforces a handful of anti-discrimination and harassment laws: Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA) and the Equal Pay Act. But these aren’t the only agencies and laws that come into play. Employers can also land in legal hot water for retaliating against an employee regarding time and pay rights under the Fair Labor Standards Act (FLSA), medical leave rights under the Family and Medical Leave Act (FMLA) — both enforced by the Department of Labor (DOL) — or for reporting a workplace safety issue to the Occupational Safety and Health Administration (OSHA).

For example, the DOL recently sued Makin’ Choices Inc., a behavioral health services firm in North Carolina, for violating the anti-retaliation provision of the FLSA. Specifically, the company overstepped the law by trying to cut the wages of two workers who refused to return back wages they received in an earlier DOL investigation and settlement.

About the case, Wayne Kotowski, a regional administrator for the DOL’s Wage and Hour Division in Atlanta said: “Employers must understand they cannot retaliate against an employee who has been wronged. … Shorting workers once is bad enough, but we simply will not tolerate attempts to retaliate after we’ve stepped in to recover the wages they’ve worked so hard to earn.”

How Employers Can Prevent Retaliation Claims

This lack of tolerance by federal agencies should put all employers on high alert. In August 2016, the EEOC issued the first enforcement guidance on workplace retaliation in more than 18 years. The document outlines numerous practices and examples to help employers better understand, and avoid, retaliation claims under the various federal laws.

To steer clear of retaliation claims, employers should:

Include an anti-retaliation policy in the employee handbook — You should already have firm anti-discrimination and harassment policies in your handbook. This additional policy should address retaliation, encouraging employees to come forward with concerns and explaining the process for reporting acts of retaliation.
Provide training — Every manager, supervisor and HR representative needs to understand what constitutes retaliation in the workplace, and how to respond when an employee complains or participates in an investigation. Make sure, too, you have a legitimate, non-discriminatory reason for all employment decisions. Finally, document training as proof you’ve taken practical steps to prevent retaliation.
Explore other precautions — In certain situations, it may be wise to let an employee accusing a supervisor of retaliation to report to a different supervisor or follow an alternative work schedule. Obviously, you need to be careful that these well-intentioned efforts don’t also appear retaliatory!
FEATURED SOLUTION
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Jaime Lizotte
Presented by: Jaime Lizotte,
HR Solutions Manager
Misclassifying workers is a risk your business can’t afford to take. Federal and state agents are monitoring the situation more closely and cracking down with bigger fines and penalties. At the same time, wage and hour lawsuits are on the rise, with many “salaried” employees recognizing they are non-exempt in the eyes of the law — and therefore owed overtime.
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