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What the Law Says About Retaliatory Behavior at Work

written by: Sylvia Cochran•edited by: Jean Scheid•updated: 6/30/2011

Recognize the potential for retaliation in the workplace before supervisors or managers act on it. Guard the company from incurring liability that may be arising from taking adverse actions brought on by protected activities.

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    Case in Point

    Retaliation at Work Find Law outlines the case of an employee, whom the management team had determined to let go. A day after the management team decided on the separation -- but before the supervisor acted on the decision -- the employee became sick because of a faulty work place appliance. The company chose to continue running the appliance, even though government officials specifically forbade it from being activated.

    Learning of this practice, the worker -- still on sick leave -- filed a complaint with the local chapter of the Occupational Safety and Health Administration (OSHA). Upon the worker’s return to the job, the supervisor promptly fired the employee. The employee subsequently alleged retaliation.

    It did not end well for the employer. Because of the perception of retaliatory behavior on the part of the company, a jury awarded damages to the employee. The award was upheld on appeal.

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    Protected Conduct

    The term “protected conduct” is usually at the heart of a retaliation suit. Protected conduct, the law firm of Fortney & Klingshirn explains, carries a somewhat broad definition. It includes:

    • Assertion of workplace rights, such as pay and leave privileges.
    • Alerting authorities to illegal or unsafe work practices, such as environmental concerns or software piracy.
    • Membership in a protected group.
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    Avoiding Even the Appearance of Company Retribution

    HR policies govern the conduct of the management and supervisory teams to avoid even a hint of reprisal. For example:

    Take meeting minutes. Be sure to do so in all meetings that involve promotions and demotions, hiring and firing decisions, reprimands and other corrective actions. This protects the management team against allegations of retaliation, especially if time elapses between the decision to reprimand an employee and a potentially protected action.

    Keep personnel files updated. Disciplinary action should not be undertaken unless the file features a paper trail denoting training, coaching and reprimands. Moreover, if the worker is to be let go for cause, it is vital to have a signed acceptance page of the employee handbook on hand.

    Postpone disciplinary action. If the worker recently blew the whistle about a workplace issue, it may be wise to postpone any disciplinary action until the issue is resolved. This protects the company from appearing to retaliate against the worker.

    Document cooperation with officials. It is a good idea to document the company’s cooperation in the wake of an employee complaint. The openness with which the management team welcomes corrective actions is crucial to establishing there is little basis for retaliation.

    Another management action, which a worker could interpret as retaliatory in the wake of protected conduct, includes a change in work schedules. Further examples include a sudden transfer to another office, reversal of a long-standing fringe benefit and any other process by which the company changes the established status quo.

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    Hot-Button Issues

    Personal conduct during off-hours can sometimes spill over into the business environment. This is especially true for matters of the heart. While it is next to impossible to forbid dating relationships between staff members, the human resources department should consider adding some rules for dating a coworker, especially if one party is in a supervisory position. Dealing with messy break-ups, new hook-ups and also supervisor-employee dating can lead to a host of business liabilities.

    Religion and politics are another set of hot-button issues that may leave a worker claiming retaliation and perhaps even discrimination. For example, if a predominantly Muslim workplace suddenly disciplines the one non-Muslim worker, who may have been seen imbibing alcohol during off-hours, it is possible for this employee to make a case for retaliation. Politics may become an issue if a generally liberal workplace singles out the employee with a conservative bumper sticker on the car for grunt work and other undesirable tasks.

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    Managing Management

    To protect the company against liability, it is up to the human resources department to impartially enforce internal measures against discrimination, intimidation, bullying and reprisal. The HR manager must be consulted as an impartial authority prior to issuing reprimands and affecting adverse changes in a worker’s status. In this manner, the direct supervisor and manager are protected against partiality allegations.

    Proactive HR practices suggest that a company will train its workforce to recognize the signs of retaliation and how to report them. This helps the human resources department to partner with the employees and manage the managers. It also underscores the company’s commitment to a punishment-free workplace.

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    Be mindful when drafting policies and revising existing regulations to rule out a potential for retaliation in the workplace. Make sure that adverse employment actions follow on the heels of a well-documented process. Exercise special care with respect to job references.

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    Sources

    • Find Law, http://library.findlaw.com/2000/May/1/128601.html
    • Fortney & Klingshirn, http://www.fklaborlaw.com/faqs/workplace-retaliation-law.html

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