One of the best ways of preventing retaliation claims is to ensure your employees don’t feel that they have been targeted or retaliated against for filing a complaint, taking a leave of absence, or asking for a job accommodation. In our last article on retaliation, we covered some of these areas along with an example of what retaliation might look like.
Due to the potential of costly claims, all employers should be actively engaged in preventing and responding to any retaliation claims by building a positive culture. This includes an adherence to compliance issues, being prompt in conducting investigations, and building strong policies that show you take prevention and compliance seriously.
Evaluate your policies and establish policies against retaliation
Ensure that your organization has a strong no retaliation policy. That policy should contain what retaliation is, what it might look like, and that you will not tolerate any retaliation from any of your staff. Steps that any employee should take if they do feel they have been retaliated against should be included in the policy. If your staff believes their organization has an effective mechanism for raising concerns regarding perceived issues, they are more likely to bring those concerns to their manager or HR. Just like with potential claims of harassment, it’s important to have multiple people to go to with a potential issue. You should also consider a venue for employees to anonymously report any unsafe, illegal concerns.
Keep communication open and flowing
Always communicate with any employee who brings a complaint of retaliation that you take all complaints seriously and thank them for bringing the situation to your attention. Be sincere. Reiterate that the organization doesn’t tolerate retaliation in any form. Also, a heightened awareness and open communication needs to be encouraged between management and employees. By explaining all motives and intentions to the employee as the process unfolds, you prevent surprises and diminish the risk of a misunderstood action.
Follow up all your decisions and actions with clear and direct communication, and always document these interactions. Check in often with the employee and keep an interactive conversation going throughout the investigation and beyond.
As much as professionally possible, maintain confidentiality. The fewer individuals who know there is a complaint, the better. You want to avoid another possible incident of retaliation against the employee who has brought the claim forward. During an investigation, there will be people who will need to be informed of the claim and of course, interviewed to gather information. Ensure that you tell as few people as possible and only on a need-to-know basis. It’s paramount to remind all staff involved in the investigation that there is no tolerance for any form of retaliation against any staff who brings forward a claim.
If it isn’t written down…
We’ve said it before, and we’ll say it again. Document, document, document. It’s vitally important to keep good notes and records of your conversations and interactions. Document everything you are doing during the investigation and communicate to the complainant all you are doing to prevent retaliation. Again, keep those lines of communication open. Confirm that you are investigating the complaint and will keep them informed along the way.
Retaliation claims are costly and time-consuming. Here is a recap of basic steps to follow:
- Handle every discrimination complaint equally and document all actions and communications.
- With any performance issues, at any time and with all employees, ensure a detailed and honest documentation process. Make certain that it never appears that documentation started only after a complaint.
- Ensure clear and complete policies and procedures stating that retaliation is not tolerated and will be swiftly acted upon.
- Educate and train managers to be aware of possible retaliatory conduct and keep communication open between all parties.
- Follow up with the employee during and after any investigation and continue to do so throughout their employment.
- Address and act on all retaliatory action decisively and seriously.
- Make sure that your organization has clear concise anti-retaliation policies and that they are adhered to consistently.
- Again, document what you have said and done.
Even when you have done your best to anticipate problems and avoid a retaliation claim, you may still be hit with one. If you have kept yourself true to your policies and have strong documentation practices, you have a chance at fighting back and better yet, preventing them from the start.
For more information and help:
Visit the U.S. Equal Employment Opportunity Commission website, call the EEOC at (800) 669-4000 (voice) or (800) 669-6820 (TTY), or contact your local EEOC office. Ask for translation assistance if needed.
EEOC Questions and Answers: Enforcement Guidance on Retaliation and Related Issues
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The information contained in this article is not a substitute for legal advice or counsel and has been pulled from multiple sources.