Workplace retaliation claims have nearly tripled in frequency over the past decade and now are one of the most frequent claims filed in employment-related lawsuits and administrative charges. Not only are they on the rise statistically, they also are one of the most difficult claims to defend against.
More often than not, an internal complaint of harassment or discrimination evolves into a retaliation claim after an employee complains or litigation materializes. Ensuring a prompt and adequate investigation of the initial complaint is one of the best ways to protect your company from such claims. The law prohibits punishing job applicants or employees for asserting their rights to be free from employment discrimination, including harassment. Asserting these rights is called "protected activity," and it can take many forms.
For example, it is unlawful to retaliate against applicants or employees for filing or being a witness in an Equal Employment Opportunity Commission charge, complaint, investigation or lawsuit, as well as for making an internal complaint to your company. An employee is more sensitive to changes in the work environment after making a complaint, and may often perceive any change as retaliation. Accordingly, employers need to be aware and cognizant of the need to adequately investigate employee complaints and the potential conduct that may be considered retaliation.
In light of the growing number of retaliation-based charges and lawsuits, particularly in California, employers should ensure that they have strong anti-retaliation and whistleblower protection policies in place, including ensuring a sufficient complaint mechanism. Many employers are instituting anonymous hotlines to ensure a procedure is in place for employees to make such complaints. Moreover, employers need to remain cognizant that an employee can have a valid retaliation claim even if the underlying complaint is unfounded. For example, an employee makes a complaint of discrimination or harassment that is investigated thoroughly and is unsubstantiated by an employer’s human resources department. If the employee is terminated or demoted shortly thereafter, the law may initially presume an inference that it was retaliation for the complaint, even if the underlying complaint was without merit, which puts the employer in the position of having to defend a retaliation claim and support the termination reason with evidence. For this reason, understanding that an employee is within a protected category once they make a complaint, regardless of the merit of that complaint, is critical to an employer’s first line of defense.
Though it is an employee’s burden to establish a causal connection between protected activity (e.g., making a complaint) and an adverse employment action (e.g., demotion, termination, discipline, etc.), this is not a difficult burden to meet. For instance, the causal connection is much easier to establish if there is a close temporal connection between a “complaint” and any adverse employment action. For this reason, employers need to ensure any termination or performance issues are well documented and supported and remain aware of and pay close attention to retaliation red flags in the employee’s work environment following an employee’s complaint. These include:
- Supervisor increased scrutiny of an employee after the making of a complaint;
- Employee monitoring policies that are not consistent across similarly situated individuals, such as requiring an employee to report whereabouts or work metrics to management when not required of others or instituting a new policy that has a negative impact primarily on the employee who complained;
- Inconsistent documentation of performance issues across employees. For example, avoiding the inference of only documenting performance issues of employees that have made a complaint;
- Higher standards or expectations of certain employees after the making of a complaint;
- Supervisor and management complaints about a subordinate employee that has made a complaint.
It is of the utmost importance that employers solidify their commitment to preventing retaliation in the workplace through: (1) recognizing and understanding both federal and state-specific retaliation provisions that apply to the company; (2) distributing detailed anti-retaliation policies, including that any concerns of retaliation following a complaint should be promptly raised; (3) conducting frequent and thorough trainings for supervisors; and (4) ensuring proper documentation of employee performance issues as well as any employee complaints or concerns. In the same vein, timely and consistent performance documentation is critical. Employers should solidify their policies and procedures of documenting poor performance, establishing clear-cut goals and expectations.
Moreover, employers often underestimate the importance of a prompt and immediate investigation into an employee’s complaint. As soon as the complaint is made, the employer should make clear that all allegations are taken seriously and promptly document it. Moreover, it is critical that the employer documents steps taken to address the complaint, steps taken to resolve it, as well as any follow-up on the employee’s complaints. An employer also should review and ensure that any steps taken to resolve the issue are consistent with the employer’s policies and past practices. Consistency is key.
Also crucial to mitigating retaliation claims is making sure to follow-up with the employee who made a complaint after the investigation is complete to ensure the work environment is free of retaliation and there are no “red flags.”
In sum, employers should take immediate steps to solidify their commitment to anti-retaliation policies and should implement the following practices to minimize potential issues:
- Consult counsel and determine what anti-retaliation laws (both at the federal and state level) apply to your company;
- Implement and publicize strong and clear anti-retaliation policies that are broad enough to encompass applicable laws and their corresponding requirements;
- Ensure proper training for managers, supervisors, human resources professionals and any other individuals that administer such policies;
- Take proactive steps to ensure that employees that have raised complaints are not retaliated against by both tracking any complaints made and prompt follow-up with the employee;
- Maintain confidentiality of employee complaints and other sensitive personnel issues to the extent possible, and consistent with conducting a thorough investigation;
- Ensure interdepartmental communication to the extent necessary to ensure that any employment actions that are in close proximity to an employee’s complaint are consistent with the employer’s policies and past practices so that they are not perceived as causally connected to an employee’s complaints.
In the event your business is sued or threatened to be sued for retaliation, you should retain qualified counsel as soon as possible so that an appropriate litigation and remediation plan can be developed.
Nathan V. Okelberry is a partner with labor and employment law firm Fisher Phillips in Los Angeles. He may be reached at [email protected].
Rayan W. Naouchi is an associate with the firm in Los Angeles. She may be reached at [email protected].