What is workplace retaliation and when do actions not qualify as retaliation?
Retaliation is revenge, and it can evoke thoughts of Liam Neeson going after his daughter’s kidnappers in the movie “Taken.” But workplace retaliation is not that dramatic. At least, we hope it’s not that dramatic.
However, workplace retaliation can be destructive, and it can violate the law (though not always). Understanding the rules surrounding workplace retaliation is crucial for HR team members, managers, and anyone who has a position of influence at work.
What are the forms of retaliation?
Jane comes to the HR department and says, “John is asking me out on dates. I told him no and asked him to stop.”
John is a high performer, so you move Jane to a less desirable shift.
This is a classic case of retaliation: Jane complained of sexual harassment, and you punished her by transferring her to a different shift. Now, you might say, “But her salary is still the same, and her title and seniority weren’t affected. This isn’t retaliation. Furthermore, Jane didn’t even say she was experiencing sexual harassment.”
Note: An employee does not need to use the magic words “sexual harassment” to receive legal protection for their actions. Jane complained about unwanted sexual behavior in her department, so it is considered a complaint of sexual harassment. The transfer retaliates against Jane.
In another example, Bob has 40,000 followers on Twitter, including many of his coworkers. He posts a picture of his paycheck with the caption, “Can you believe Acme is paying such lousy wages?”
One of his coworkers takes a screenshot and presents it to you. Bob named the company, and many people commented and retweeted him. As a result, you call Bob into the office and inform him that he violated the company’s social media policy, and therefore, you are suspending him for two weeks without pay.
This is illegal retaliation for protected concerted activities. According to the National Labor Relations Board: If employees are fired, suspended, or otherwise punished for engaging in protected concerted activity, the NLRB will work to restore what was illegally taken.
In other words, employees are allowed to discuss their working conditions with their coworkers, including discussions about wages. It doesn’t matter that many others saw it on Twitter. The NLRB still considers his comments to be concerted activity.
Now, of course, there are instances where retaliation is more apparent. Steve complains of racial discrimination. You immediately fire Steve for misconduct. But actions and activities like transfers are much harder to pinpoint.
Is retaliation always illegal?
Not necessarily. Retaliation is only illegal when the action that preceded the retaliation is protected by law. This can vary from state to state. It is always illegal to retaliate against an employee for acts such as sexual harassment, racial discrimination, and protected concerted activities in the workplace. Some states have protections for whistleblowers regarding any type of illegal activity, but not all states do.
If an employee files a baseless complaint, retaliation can be legal or illegal. For example, if Jane complains that John is sexually harassing her, and you investigate and find that John only asked her out once. In reality, you found that Jane rejected him and he did not bother her again.
However, you cannot retaliate against Jane as long as she honestly believed that John was acting illegally. But if you investigate and find that Jane wanted John’s better shift, so she made a false complaint, you can take action and retaliate.
Note:
The critical issue is that the employee must have a sincere belief that what they reported is illegal. Otherwise, retaliation is permitted.
Retaliation Does Not Stop Consequences
You may have a situation where the employee is underperforming, and before you discipline or terminate their contract, they file a complaint. This complaint does not nullify any other performance or actions of the employee. However, if you do not have documentation before the complaint is filed, acting after a complaint is made will look like illegal retaliation.
If you have documentation, you can proceed with the disciplinary process, but consider that the employee’s poor performance is a result of harassment or discrimination, rather than being a completely separate situation.
How Do You Stop Retaliation?
Creating a simple “no retaliation” policy will not solve all your problems. (Of course, policies never solve all problems.) You must consider each case carefully and on its own merits. Returning to Jane and John, how do you respond? If you conclude that John’s behavior was not sufficient for punishment, but Jane does not wish to work with him anymore, how do you act?
If you move John to a less desirable shift, you are punishing him for something he did not do. Moving Jane is retaliation as long as she sincerely believes that John harassed her. Resolving such a situation may require serious negotiations and careful thought.
You may also need to sit down with Jane and explain why John’s behavior is not considered harassment, and that if she wishes to move to a different shift, you can arrange that, but otherwise, she must work with John. Make it clear that moving John when you determined he did nothing wrong – is the wrong decision for the business.
You need to train your managers to refrain from retaliation and report all protected complaints to the HR department. This will help ensure that retaliatory decisions are not made and that all potential allegations are investigated.
Conclusion
Remember, if an employee sues you and you win on the facts, you could still lose later due to reported retaliation if you treated the complainant poorly. For this reason, it is critical to think about your actions before taking them and even consider discussing proper conduct with an employment law attorney.
Source: https://www.thebalancemoney.com/what-can-be-considered-workplace-retaliation-4174529
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