Very recently, retaliation claims have increased dramatically. In fact, in 2010 retaliation claims surpassed race discrimination as the most common type of charge filed with the US Equal Employment Opportunity Commission (EEOC). This increase has resulted in the creation of the most significant legal risk to employers today, according to Society for Human Resource Management speaker, and law expert Joseph Beachboard, at the 2012 Employment Law & Legislative Conference.
What is Retaliation?
In the context of internal workplace investigations, retaliation occurs when an employer inflicts any kind of negative job action on a whistleblower (an employee who informs on a person or organization engaged in an illicit activity). These negative job actions generally include demotion, discipline, termination, salary reduction, or job reassignment. Those issues seem easy enough to avoid, but retaliation can be a lot subtler.
In reality, even a totally unintentional, minor oversight can result in retaliation charges. Something as simple as excluding the employee from a business lunch, could actually lead to a retaliation claim. The ease of which these claims can be filed is exactly why 37% of the nearly 100,000 federal workplace discrimination charges filed in 2011 were retaliation claims.
How to Avoid Retaliation in Your Workplace
When you consider how broad the spectrum of actions and behaviors that can be considered retaliatory is, it can be extremely hard to prevent them from occurring. When managers don’t have a clear understanding of what could be considered retaliatory action, or how to avoid such actions, the risk is high.
ENFORCE THE RETALIATION POLICY WITH MANAGEMENT
Preventing retaliation starts with education. Most managers don’t know what behaviors to avoid, so revisiting your retaliation policy is a great place to start. The policy should cover how to avoid retaliation and it should define what retaliation is and what it is not. The policy should highlight specific behaviors to avoid, and what behaviors are acceptable. Many leaders believe that retaliation has only occurred if someone is punished or fired, but even the appearance of retaliation is dangerous for the organization.
The policy should define retaliation reporting procedures, so that employees know exactly what to do if they believe a retaliatory action or behavior has taken place. Reporting procedures should define how and when a report should be filed. It should also include an assurance to employees that if they should file such a report, they will not be subject to retaliation themselves. If you do not currently have a retaliation policy in place, SHRM offers some great resources to get you started.
PROVIDE RETALIATION AWARENESS TRAINING
Beyond reviewing the retaliation policy, training is a great next step. This training should teach manager and employees to not only be aware of their own behaviors and actions that could be considered retaliatory, but also identify such issues around them. The training should stress that employees are obligated to bring such issues to HR. Furthermore, managers need to know what to do when such complaints are brought directly to them, rather than HR or a company hotline.
PREVENT RETALIATION AFTER A CLAIM IS FILED
Immediately following an investigation, HR should put steps in place to prevent the appearance of retaliation. Make sure that managers who continue to supervise a whistleblower (especially if the complaint was against one or all of them) are not the sole decision maker on any negative employment actions against that person for at least six months. For instance, if the employee applies for a higher position, but is not qualified, the manager involved with the complaint or charge should not be the only decision maker. This way, the organization is guarded against even the appearance of retaliation.
Raising awareness in the workplace can drastically mitigate the risk of such issues making their way to court. Some companies are even offering anti-retaliation incentives. Retaliation is a high stakes risk for the entire organization, and the mitigation of that risk lies on HR’s shoulders. Does your HR department have the training and resources necessary to safeguard your organization?
Avoiding internal investigation retaliation requires the proper training, policies and procedures. Does your HR team have what it takes?
