Retaliation Avoidance and Complaint Prevention Training for Supervisors

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Introduction

As part of human nature, people want to or actually do lash back (retaliate) against those who accuse them of wrongdoings. This tendency is particularly perilous for supervisors whose employees have accused them of employment law violations. Over the last decade, retaliation claims against employers filed with the Equal Employment Opportunity Commission (EEOC) have increased over 35%. It is essential for all supervisors, in addition to the human resources staff, to be trained in avoiding retaliation and preventing retaliation complaints from their employees. This sample presentation is intended for presentation to supervisors and other individuals who manage employees. It is designed to be presented by an individual who is knowledgeable in employment laws that include retaliation protections. This is a sample presentation that must be customized to include and match the employer’s state laws and its own policies and practices.

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Objectives

At the close of this session, you will be able to:

• Describe what constitutes retaliation.

• State why it is important for employers to comply with laws against retaliation.

• Cite the difference between whistleblower protection and retaliation complaints.

• Name employment laws that include protection against retaliation.

• Cite ways to avoid retaliation and prevent complaints.

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What constitutes retaliation?

Retaliation is defined as action taken in return for an offense or injury.

In the employment context, retaliation occurs when an employer takes an adverse action against a covered individual because the employee engaged in a protected activity. To determine retaliation, you must understand the definitions of the following terms:

1. Adverse Action

2. Covered Individual

3. Protected Activity

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What constitutes retaliation? (cont’d)

1. Adverse action is an action an employer takes to keep an employee from opposing a discriminatory practice or from participating in an employment discrimination proceeding

Examples include: > Termination, refusal to hire, denial of promotion> Threats, negative performance appraisals, increased monitoring

Even if the alleged wrongdoing was allegedly committed by a different employer, the current employer cannot take retaliatory adverse action. Example, it is unlawful for the current employer to retaliate against an employee for pursuing an EEO charge against a former employer.

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What constitutes retaliation? (cont’d)

2. A covered individual is an employee who has opposed an unlawful practice, participated in proceedings, or requested an accommodation related to employment discrimination based on race, color, sex, religion, national origin, age, or disability.

Individuals who have a close relationship with a covered employee are also covered individuals. Example, it is illegal to terminate an employee whose spouse filed an EEO sexual discrimination complaint.

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What constitutes retaliation? (cont’d)

3. Protected activity includes:

• Opposition to a practice believed to be unlawful discrimination as long as it is based on a reasonable, good-faith belief and the manner of the opposition is reasonable. An example is complaining to anyone about alleged discrimination against oneself or other employees.

• Participation in an employment discrimination proceeding even if the proceeding involved claims that were found to be invalid. An example is cooperating with an internal investigation of an alleged discriminatory practice.

• A protected activity may also include requesting a reasonable accommodation based on religion or disability.

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What constitutes retaliation? (cont’d)

To show retaliation, the employee must prove that:

• He or she engaged in protected activity such as reporting unlawful discrimination.

• The employer knew or believed the employee engaged in the protected activity.

• He or she suffered an adverse employment action based on engaging in the protected activity.

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Questions ? Comments ?

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Importance of compliance with laws against retaliation

It is important for employers to comply with anti-retaliation laws because:

• These laws encourage employees to come forward, without risk of adverse action such as termination, to report unlawful actions. Stopping unlawful employment actions helps make the workplace and our society safer, more enjoyable and rewarding for everyone.

• Employees are becoming more aware of anti-retaliation protection. Consequently, charges of retaliation are increasing. In FY 2007, the EEOC resolved over 22,000 charges of retaliation discrimination. It recovered more than $124 million in monetary benefits for employees.

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Whistleblower Protection vs. Protection against Retaliation

Whistleblower protection and retaliation claims are often discussed interchangeably. However there is a difference:

• Whistleblower claims relate to conduct that may threaten public safety, waste tax dollars, or violate public trust in government. Examples are dumping chemicals illegally, submitting fraudulent claims for expense reimbursement under a government contract and using a public office for personal gain.

• Retaliation complaints pertain to an employer’s illegal interference with the rights of an individual employee to enforce their personal legal rights under the law and to support others who enforce their personal legal rights under the law. Examples are an employer disciplining an employee just for alleging workplace gender discrimination and an employer terminating an employee who reported the sexual harassment of a co-worker.

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Employment Laws that include Protection Against Retaliation

The major employment laws that provide for protection against retaliation are:

• Age Discrimination in Employment Act (ADEA)• Americans with Disabilities Act (ADA)• Civil Rights Act of 1964 (Title VII)• Equal Pay Act (EPA)• Fair Labor Standards Act (FLSA)• Family and Medical Leave Act (FMLA)

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Ways to Avoid Retaliation and Prevent Complaints

Employers should take the following actions to prevent retaliation and avoid complaints:

1. Adopt and distribute an anti-retaliation policy that includes: A clear statement that, like discrimination and harassment,

retaliation is prohibited by both law and company policy and retaliatory acts will lead to disciplinary action and or termination of employment

An example of types of retaliatory conduct A system for reporting retaliation A statement that complaints will be promptly investigated and

resolved A statement that complaints will be maintained as confidential as

possible

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Ways to Avoid Retaliation and Prevent Complaints (cont’d)

2. Train Managers on how to prevent retaliation complaints . The training program should include: A description of the company’s anti-retaliation policy Examples of retaliatory acts and or role playing scenarios Information on the consequences of illegally retaliating against

employees

3. Monitor the treatment of employees who have complained or discrimination or provided information related to a discrimination complaint to ensure that they are not subjected to retaliation.

4. Investigate allegations of retaliation and take prompt corrective action with retaliation occurs.

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Questions ? Comments ?

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Quiz

Alice Jones is applying for the position of Director of Sales with Acme HealthCare Products. After a satisfactory background check and determination that she is the most qualified applicant, she is offered the position and asked to start in two weeks. She accepts the offer. A few days later at a meeting of the Acme Board of Directors it was announced that Alice accepted the offer. After the meeting, one of the Board Directors comes up to the HR VP and states that a friend of his is the president of the company where Alice just worked. He states that Alice filed a sexual harassment against his friend, the company’s president. The Director states in no uncertain terms that he does not want Alice hired and instructs the HR VP to rescind the job offer.

Would rescinding the job offer to Alice be a retaliatory action?

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Quiz (cont’d)

Paul Adams has worked at General Hospital for one year as a laboratory technician on the day shift. When first hired, Paul was informed that there were always technicians who preferred to work the night shift and it would be unlikely for him to be transferred to that shift. Two of the technicians on the night shift have unexpectedly resigned and there is an urgent and immediate need for additional coverage. As Paul has less seniority than other technicians on his shift, he fears he may be transferred to the night shift which he does not want. He angrily tells his supervisor that making him work that shift is a violation of the understanding he had when hired. His supervisor responds that there is no binding agreement on which shift he or other employees work and that, based on staffing needs, he may be transferred to the night shift. The next workday, Paul receives notice that he must begin working the late shift the following day. He goes to HR and complains that he is being retaliated against because of his complaint.

Is transferring Paul to the night shift a retaliatory action?

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Quiz (cont’d)

Karen Smith works in the call center at Hardware.com. She hears her manager, John Fox, greeting Sarah, a newly hired call center employee with “Hi gorgeous” or “Hello, sweetie” and sees him standing very close to her and putting his hand on her shoulder when talking with her. Karen overhears Sarah in the lunchroom room talking on her cell phone about the manager saying that she has told him she is not interested in a romantic relationship with him but that she has not complained to HR out of fear of losing her new job. Karen goes to HR to report what she considers is sexual harassment. The HR Director informs John of the investigation and the complaint filed by Karen. John is outraged. He feels that his interest in Sarah is none of Karen’s business. He considers her disloyal and a troublemaker. He thinks that firing Karen may get him in trouble but doesn’t want her around all day any more so he reduces her hours from full-time to part-time.

Is John’s action of reducing Karen’s hours retaliation?

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Summary

Retaliation is defined as action taken in return for an offense or injury. In the employment context, retaliation occurs when an employer takes an adverse action against a covered individual because the employee engaged in a protected activity.

It is important for employers to comply with anti-retaliation laws because these laws encourage employees to come forward to report unlawful action. Also, as more employees are becoming aware of anti-retaliation protection, complaints for violations are increasing.

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Summary (cont’d)

The difference between whistleblower complaints and retaliation complaints is that whistleblower claims relate to conduct that may threaten public safety, waste tax dollars, or violate public trust in government. Retaliation complaints pertain to an employer’s illegal interference with the rights of an individual employee to enforce their personal legal rights under the law and to support others who enforce their personal legal rights under the law.

The major employment laws that provide for protection against retaliation are the ADEA, ADA, Title VII of the Civil Rights Act, EPA, FLSA and FMLA.

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Summary (cont’d)

Employers should take the following actions to prevent retaliation and avoid complaints:

• Adopt and distribute an anti-retaliation policy• Train managers on how to prevent retaliation complaints . • Monitor the treatment of employees who have complained of discrimination

or provided information related to a discrimination complaint to ensure that they are not subjected to retaliation.

• Investigate allegations of retaliation and take prompt corrective action with retaliation occurs.

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Questions? Comments?

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Course Evaluation

Please be sure to complete and leave the evaluation sheet you received with your handouts

Thank you for your attention and interest !