The Federal Government Continues to Prioritize Retaliation Claims – Is Your Organization Protected? | SmithAmundsen LLC

Retaliation remains a top law enforcement priority for the federal government. Last week, the U.S. Department of Labor (DOL) announced a new Field Assistance Bulletin titled “Protecting Workers from Retaliation” and pledged to “use all available tools” to “enforce the rights of workers to identify violations of the law without fear of dismissal or other threats to their reputation, safety, or livelihood.Keeping promise, the DOL this week ordered an Arizona manufacturer to pay nearly $600,000 and to reinstate a former employee who sought retaliation under Sarbanes-Oxley whistleblower provisions after raising concerns about the legality of stock trades.

Late last year, the DOL, EEOC and NLRB announced a joint initiative to combat retaliation. Virtually all federal (and state and local) laws designed to protect employee rights contain anti-retaliation provisions. As a percentage of total charges against the EEOC nationwide, retaliatory charges increased every year since 1992. More than half of all charges against the EEOC in recent years have contained allegations of retaliation.

What steps can you take now to prevent retaliation and best position your organization to defend against such claims when they arise?

  • Enforce policies that are clear, fair and tailored to their particular purpose. Unique size do not work for employee handbooks, work rules or job descriptions. Review the policies regularly and update them often to ensure they meet the unique needs of your organization and accurately reflect your actual practices.
  • Systematically apply your policies. Retaliation is often proven by evidence that employees were treated differently from one another in similar circumstances. In today’s tight labor market, it can be tempting to ease enforcement to avoid further exacerbating labor shortages. But by giving an employee a pass, an employer may inadvertently create evidence of disparate treatment. It is better to revise the rule than allow lax enforcement.
  • Document performance and behavior issues and discuss them with the offending employee. In general, employees should not be surprised when formal disciplinary action is taken.
  • Educate and train employees, including those in managerial positions. Employees need to know what is expected of them and how to report problems. Supervisors and managers are the eyes and ears of your organization. Make sure they consistently enforce your policies and train them to spot potential violations of the law and alert HR early so issues can be resolved effectively.
  • To encourage employees to report problems. Allow employees to fully voice their concerns and share supporting facts and witnesses. Encourage (but don’t force) employees to put their complaints in writing.
  • Protect employees filing complaints.
  • Investigate complaints promptly, fairly and completely. Talk with witnesses. Document all steps in the investigation process. Focus on facts rather than conclusive statements.
  • return circle with the employee who complained. Don’t let them wonder! Let them know you will be investigating and when you expect to report back. Update them if the investigation takes longer than expected. Communicate the results of your investigation.
  • Remedy problematic behavior and document the actions you took.

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