Retaliation claims in the employment context are on the rise. Last year, there were more than 37,000 retaliation claims filed with the Equal Employment Opportunity Commission (EEOC), the US federal agency charged with enforcing federal employment laws. This represents a steady increase over the past few years.
In addition to federal laws, there are state and local laws that prohibit retaliation against individuals who complain about alleged unlawful employment discrimination and those who participate in discrimination proceedings. In other words, the employer cannot punish an employee for cooperating with an investigation, whether conducted internally or by a government agency.
Even if the original complaint turns out to be unfounded or unsupported, if employees can show that something negative happened at work because of their complaint, or because they provided testimony or documents in an investigation, they can still win a retaliation claim.
Types of Retaliation
Retaliation by supervisors can take many forms, including:
- negative performance reviews
- transfer to an undesirable position or location
In many jurisdictions, retaliatory action also extends to harassment or mistreatment by co-workers and could include name-calling, ridicule and hostile attitudes.
The following are tips for employers to help prevent these types of claims from occurring in the context of a workplace investigation.
Tip #1: Communicate “No Retaliation” Rule
Every individual interviewed should be told at the outset that retaliation will not be tolerated against those who complain or those who participate in investigations by providing statements or documentation. It must be made clear that acts of retaliation will be subject to disciplinary action, up to and including termination.
Tip #2: Keep it Confidential
Every individual interviewed should be told that they are to keep the entire conversation confidential, including that they were interviewed. They also should be informed to contact the investigator if anyone asks about the investigation, what they said, or wants to discuss it. It is worthwhile to inform interviewees that off-line chit chats can be considered interference with an investigation, and will be taken very seriously by the company or organization.
Remember that there are different rules that may apply in the union context (e.g., union employees may be entitled to have another employee with them during the interview). Investigators should consult with counsel to understand how to best approach a follow-up question from interviewees about whether “anyone else” includes their attorney. Interviewees should generally not be prohibited from speaking with an attorney.
The existence of the investigation, the individuals who are involved, and the specific allegations should be on a strictly need-to-know basis. The fewer people who know about the complaint and details of the investigation, the less likely that someone will retaliate against those involved.
Future decision makers about employment status (e.g., transfers, promotions, and bonuses) should not be made aware of previous complaints or allegations (thereby avoiding the perception of “where there’s smoke, there’s fire”). If decisions are made by individuals who have no prior knowledge, then it’s extremely difficult to claim that future decisions were retaliatory.
Tip #3: Nip Gossip in the Bud
If an investigator, or someone else at the company or organization, becomes aware that employees are discussing the investigation, it should be nipped in the bud quickly. Gossip about the investigation can develop into retaliation claims, damage reputations even before an outcome is reached, and affect productivity and employee morale.
Tip #4: Consider Temporary Measures
Employers should consider whether any interim or preventive measures should be put into place during the investigation. These may be especially necessary when the complainant is a current employee who may have frequent and ongoing interaction with the subject of the complaint while the investigation is taking place.
Measures could include a temporary change in reporting relationships, a paid leave of absence, or temporary reassignment and will depend on the specific circumstances and nature of the allegations. Employers should be careful, however, not to put any changes or other preventive measures into place that could be considered retaliatory.
Tip #5: Discipline Cautiously and Consistently
Employers should be cautious about disciplining or terminating any individual who has alleged an unlawful employment practice or who provides information during a workplace investigation, especially if close in time to the complaint and/or investigation. There should be a legitimate business reason for the discipline or termination, and employers should make sure that any management employee who is implicated in any way in the investigation does not have any input into the decision to discipline and/or terminate the employee.
In addition, other employees who did not complain but who previously engaged in similar conduct should have received comparable levels of discipline. For example, if there is a progressive discipline policy or practice, it should be consistently applied across all employees whether they have or have not complained or been involved in an investigation.