Retaliatory cases have been on the rise. Recent legislation has made it easier to file a retaliation case and has widened the scope of the damages available. How can you prevent retaliation claims against your business from current and former employees? And what actually constitutes a retaliatory claim?
- Your employee establishes that he or she was involved in a protected activity. Your employee must show that the activity in which he or she participated is one protected by the employment statute or that the activity he or she protested is prohibited by the same statute.
- The employer was involved in taking an adverse or harsh action against the employee.
- A relationship between the action taken against the employee and the protected activity exists.
Case law has broadened the elements that can constitute a retaliatory claim. It is your responsibility to make business policies that prevent employees from filing claims against you.
7 Tips to Prevent Retaliatory Claims
- Implement policies that prohibit unlawful retaliation. Most businesses have non-discrimination policies but not policies against retaliation. Amend policies to include strong anti-retaliation policies to encourage your employees to come forward without fear of intimidation and reprisal for reporting unlawful conduct. Consult your attorney for the wording of a policy.
- Train your employees on your non-retaliation policy and complaint procedures. If you have a policy, but do not train your staff, the policy has little value. Train your employees to prevent retaliation and on measures to take when a complaint is reported. Document your training to prove your efforts to avoid unlawful retaliation.
- Give each and every claimant close attention. Ignoring any reported cases can prove costly later. Talk with the claimant, and issue him or her a copy of your non-retaliation policy and the procedures to redress the issue.
- Change the environment for the claimant as a protective measure. If the claimant complains about his or her supervisor, assign a new supervisor. If the employee is underperforming, per the new supervisor, document performance so you can dismiss the employee without fear of retaliatory claims.
- Enact internal corrections for corporate misconduct. Develop impartial and non-discriminatory internal correction methods. It is far better to manage problems internally and settle problems amicably than to leave the court to do it for you. Document corrective measures to show the court if your employee files a retaliation claim.
- Keep the identity of the whistleblower anonymous at all times. Without the identity of the complainant, it is difficult for anyone to retaliate.
- Don’t dismiss any case as minor or unimportant. Conduct a thorough investigation into any complaint.
Make sure to reach out to Company Counsel before taking action you think may lead to a retaliation lawsuit against your business.
