Posted on April 9th, 2020
A retaliation claim can be damaging to your company’s reputation, workplace morale, and bottom line.
An employee can claim retaliation if they believe you are punishing them for exercising one of their protected rights. If the employee prevails, you might face harsh penalties from state and federal agencies. You may also face high lawyer fees, and an unwillingness from employees, clients, and vendors to do business with you.
It is possible to defend against retaliation claims in court, However, the best remedy is prevention. Retaliation claims can only arise when the employer punishes an employee for asserting their right to be free from unlawful discrimination.
Prevent retaliation by getting rid of discriminatory actions in your workplace. Set up protective policies and structures that educate, address and fix any problems before they come up.
Here are five top tips to protect your business from retaliation claims.
Staff and Management Training
California’s Fair Employment and Housing Act (FEHA) makes it illegal for public and private employers, labor organizations and employment agencies to discriminate against job applicants and employees. Employers also may not retaliate against employees for asserting their rights under the law.
This law applies to all businesses which employ more than five people. It does not matter if the worker is a contractor, employee or unpaid intern.
Everyone has the right to be free from any discrimination based on race, religion, age, disability, gender (including identity or expression), marital status, medical condition or disability.
You cannot fire, demote or otherwise punish someone for claiming discrimination. You may not refuse to give someone good assignments because they complained about harassment or wanted to join a union.
The best way to prevent those claims is by holding regular training sessions for all levels of your employees. Everyone needs to know what constitutes discrimination.
Everyone must be told what their rights are, and what to do if they experience discrimination.
We recommend implementing a rigorous training program. This can serve as evidence that you have taken precautionary measures to prevent any illegal behavior in your workplace.
Training also helps managers handle situations quickly and effectively so that these situations do not arise.
Training should be held on a regular basis. Laws change, as do personnel.
Human Resources Documentation
What if you have an employee who is pregnant or disabled, and yet they are frequently late to work? You may worry that disciplining them will expose you to a retaliation suit.
You are still allowed to terminate an employee for a valid cause. You can suspend a minority employee if they come to work drunk or drive dangerously.
However, to protect your company, you should have a scrupulous HR system in place.
Document all disciplinary actions and activity which can later support your decision to reprimand or terminate. Maintain good records of all performance reviews and warnings.
You need to be able to demonstrate that you disciplined the employee for a legal reason.
Give warnings to employees who are not performing well. Keep personnel files that detail any problems. You want to be able to show the court that you had a good reason for your actions.
Strong Anti-Discriminatory Policies
Stay on top of changing employment laws so that you can implement increased compliance measures if necessary. You want to be able to prove that you have strong, current anti-discrimination policies. Your policy should state that your workplace will not tolerate illegal behavior.
Stop workplace chatter that is overtly sexual or misogynist. Discourage nicknames that point out people’s differences in age or appearance. Promote diversity in your staff and management and set an example of inclusiveness.
Usually, this kind of policy works best when it comes from the top. The CEO or the Board of Directors set a tone for the whole workplace. If they treat people fairly and equally, they set an example for everyone else.
Everyone should behave in a professional manner. This applies to everything from internal memos to conduct at company parties. This will protect everyone from possible problems down the road.
Clear and Confidential Paths of Communication
Instead of making employees fearful about speaking up about possible discrimination, provide safe venues for them to air their grievances.
No one expects you to maintain a perfect workplace. However, you need to show that you are responsive to sensitive situations.
For example, what if someone tells a joke that someone else finds offensive? The latter should feel free to let HR know. You want to instill confidence that you will remedy the situation.
Some companies set up confidential email addresses or phone hotlines. This way employees can let management know what is bothering them. Create a system where employees may make complaints without fear of retribution.
If an employee feels he or she has been punished for making a complaint, they must have a forum to dispute their penalty. If they can’t approach a supervisor, there should be company representatives on other departments who can hear their allegations.
By setting up internal ways to resolve these conflicts, you can avoid litigating retaliation claims in court for many times the cost.
Employee Handbooks
One of the best ways to protect yourself and your company from an employee retaliation suit is to produce and distribute a comprehensive employee handbook.
This can set out clearly the rights and responsibilities of everyone who works at your company.
A handbook should outline protected classes and behavior. It should lay out expectations for job duties and describe what will happen if you do not meet those expectations.
It is the definitive statement of company policy for everyone.
Employee handbooks can provide important evidence in court. They can show that the employer made reasonable efforts to prevent discrimination.
They let people know how to report harassment and other illegal activity so that they cannot claim later that there were no avenues to voice their complaints.
Retaliation Claims: Prevent Them Before They Happen
By setting up protective measures within your company, you can circumvent damaging retaliation claims before they occur. While there will always be disgruntled employees, by setting clear policies you can be sure that you have the necessary evidence to counter any claims they may make against you.
For more ways to protect your business, check out my blog.
