Require managers and supervisors to clearly document the reasons for any disciplinary action at the time it occurs.
The best defense to a retaliation claim is complete documentation that clearly articulates the legitimate, non-retaliatory reasons for any employment action. Then, if the employee claims retaliation, the employer can introduce the contemporaneous documentation, citing the real reasons for the personnel action.
Make sure managers and supervisors impose discipline consistently.
Scrutinize disciplinary decisions if you think there is any risk of a retaliation claim.Even if the employee unquestionably violated a policy, double-check to make sure that everyone who has violated the policy in the past has been disciplined in the same manner. Don't be hesitant to grill the managers and supervisors: "Are there any other employees who have committed this infraction? If so, what discipline did they receive?" If it is not the same discipline that they want to impose on the employee who recently complained about something, the employer will be vulnerable to a retaliation and/or discrimination claim.
Scrutinize the timing of employee documentation to verify that there is no retaliation.
Watch out for any discipline or other actions taken after an employee has made any sort of complaint, regardless of whether the complaint has merit or not. Make sure the managers and supervisors are not retaliating (whether consciously or not), and don't assume that they have innocent motives. Have your employer clients ask themselves: Would a jury believe that the timing of discipline was just a coincidence, or would they suspect a bad motive? If you were on the jury, what would you think? Would you be suspicious?
Remind your clients to stress to everyone that retaliation against the complaining employee will not be tolerated
Have them identify those managers and supervisors affected by the complaint and those supervising the complaining employee. Make sure they discuss the anti-retaliation policy with those individuals and make it clear that they are not to retaliate against the complaining employee in any way. Have them document their direction not to retaliate and follow-up with the complaining employee to ensure that there has been no retaliation. A natural response by someone who has had a complaint made against them is to be more cautious and wary around the complaining person. This reaction is not illegal or retaliatory. However, employers must be careful not to allow this level of distrust to cause them to do anything that could be construed as retaliatory toward the complaining party.
Advise clients not to isolate complaining employees.
Keep the lines of communication open. Follow-up and document the follow-up discussions. An employee who has made a complaint of inappropriate conduct and then later is left to feel isolated by their company, or worse, feels subjected to an adverse employment action soon after the complaint is made and investigated, is likely to seek legal representation and sue. Remind them to ask the employee whether he or she perceives that retaliation has occurred as a result of his or her complaint and document any follow-up conversations. Encourage the employee to come forward with any perceived retaliation and assure the employee that such perceived retaliation will be taken seriously and investigated. Remind them to follow up with the complaining employee and check in on a regular basis to ensure that there is no retaliation or perceived retaliation. Then document those conversations.
Be particularly careful regarding termination decisions.
Before the termination decision is made (or approved by you as counsel), always ask your client if the employee has recently complained about something. If they don't know or haven't checked, advise them to do so. A jury is going to be inherently suspicious of termination that closely follows a complaint, even if the termination is completely justified. You will need to be prepared to have the termination decision closely scrutinized and be ready to justify the decision in court.
Train managers and supervisors.
Train managers and supervisors to let Human Resources know when an employee has complained or threatened to complain to a government agency.
Tell your clients to be cautious, but don't become a victim of litigation fear.
Although retaliation complaints must be taken seriously and must be carefully investigated, such complaints do not cast a lifetime protective shield around the complaining employee. An employee can still be a marginal or poor performer who may be evaluated negatively by the employer. Fundamental employment policies and practices must be maintained and enforced. In the context of a complaining employee, such enforcement must be done with greater care and documentation.
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