The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of their race, color, religion, sex, and more. The EEOC receives thousands of complaints every year from employees who believe their workplace has discriminated against them. Complaints can range from being denied a job or promotion or unjustly fired to being paid less than comparable employees. In 2020, over 55% of these claims fell into a category the agency refers to as retaliation claims. What's a retaliation claim, and what can your company do to protect itself against one?
What does "retaliation" mean?
As defined by the Legal Information Institute, "in an employment context, retaliation is punishment of an employee by an employer for engaging in legally protected activity, such as making a complaint of harassment to a governmental body, or participating in workplace investigations. Retaliation can include any negative job action, such as demotion, discipline, firing, salary reduction, or job or shift reassignment."
More than 20 federal whistleblower laws exist to protect employees from retaliation. The Occupational Safety and Health Administration (OSHA) enforces these laws. These laws are national, but there are also state-wide laws that protect employees.
How do you protect your company against a retaliation claim?
To protect against an employee filing a retaliation complaint, OSHA recommends that employers develop an anti-retaliation program that includes the following five parts:
- Leadership management, commitment, and accountability: Management must lead by example and adopt an anti-retaliation culture. All leaders within the organization should undergo comprehensive anti-retaliation training that covers workplace retaliation and prevention methods.
- A system for listening to and properly handling employees' concerns about safety and compliance: Employees should have multiple channels available to be able to report concerns or violations relating to ethics, safety, and compliance. Protecting employee confidentiality of those who report violations or concerns is essential. Employers are responsible for educating employees on the system, so they know their options if a need arises.
- A system for obtaining and responding to retaliation reports: OHSA states, "Employees who believe they have experienced retaliation should have independent channels for reporting the retaliation; they should not be required to report to the manager whom they believe retaliated against them." Employees must also be able to escalate the issue to higher-ups if needed.
- Anti-retaliation training for managers and rank-and-file employees: This training equips employees and managers with the knowledge, skills, and tools needed to identify, report, and manage retaliation and potential hazards. All employees should be trained on their rights and obligations when reporting potential or existing violations or hazards.
- Anti-retaliation program oversight: An "oversight" plan will help employers determine whether their anti-retaliation program is working as expected. This plan should include program monitoring and auditing, data sources and info to be analyzed, and how the results from the oversight should be used.
In addition to an anti-retaliation program, employees are also encouraged to:
- Establish a complaint hotline: Providing your employees with a complaint hotline may reduce claims. It can also help you promptly and effectively tackle issues so they don't lead to retaliation claims.
- Create clear and transparent policies on retaliation: Your company's retaliation policy should be written in plain language and leave no room for interpretation. Your policy should cover what constitutes retaliation and the consequences of retaliatory behavior at your company. Distribute the written policy to all levels of employees, and be sure to update it as laws and protocols continually change.
Need assistance putting together an anti-retaliation policy for your company? Reach out to our HR Outsourcing Team to help you craft one and ensure your company has what it needs to protect against retaliation claims.