Escaping the 'Incredible Pain' of Retaliation
Retaliation claims are growing, and it is no wonder—employees with baseless claims can make their retaliation claims stick. "You just don't want to be in front of a jury on one of these cases.” Jurors distrust employers to start with. And they easily identify with retaliation claims as part of human nature.
The Story of Uncle Milty
Uncle Milty was a 62-year-old executive whom colleagues called "Uncle" and "Grumpy." Uncle Milty lost out on a promotion which was given instead to a 35-year-old, says Faillace. Uncle Milty's lawyer fired off a letter accusing his employer of age discrimination, and days later, Uncle Milty was fired. His employer said he was fired because he was not a "team player." He always thought he knew better they said, and he made faces during meetings.
Jury Agrees: No Discrimination
A jury agreed with the employer that there was no evidence of discrimination; however, they did award Uncle Milty $5 million plus attorney's fees for retaliation.
This employer could have avoided all liability if it had done its homework when the attorney's letter arrived. "No matter how much of a pain it is." In this situation you buy the executive out and get a release.
Components of a Retaliation Claim
There are three primary elements of retaliation:
1.Protected activity
2.Adverse employment action
3.Causal connection
Protected Activity
Protected activity is of two main types: opposition and participation.
•Threatening to file a charge or other formal complaint alleging discrimination
•Complaining to anyone about alleged discrimination against oneself or others
•Refusing to obey an order because of a reasonable belief that it is discriminatory
•Requesting a reasonable accommodation or a religious accommodation
Remember, that an articulated expression of opposition is not required. Conduct itself may be enough, for example:
•Rejecting a supervisor's sexual advances
•Asking an employer whether race factored into an employment decision
•Peaceful picketing.
However, the employee's opposition must be reasonable. Some examples of acts that were not protected:• Disruptive and violent picketing
•Violations of legitimate company rules
•Knowingly disobeying company orders that are not discriminatory
•Conscious efforts to hamper the company's business pursuits.
Participation
Generally, employees are also protected when they make a charge, testify, assist, or participate in any manner in an investigation, proceeding, or hearing.
Making a preliminary visit to an EEO counselor
•Expressing an intent to file a charge
•Being a probable witness
•Assisting fellow workers in their discrimination claims
There is an important distinction between "opposers" and "participants." Opposers must have a good faith belief that the employer is violating the law; however, participants generally do not have to have such a belief. For example, a person testifying is protected even though he or she doesn't believe a law was broken.
Managers and supervisors tend toward retaliatory behavior against participants. They will ask the participant. "Whose side are you on anyway?" You must train your managers that participation is protected.
Another element of a retaliation case is adverse action. What constitutes an adverse employment action?
For sure, employment actions such as the following: denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge are adverse actions.
The EEOC also includes threats, reprimands, negative evaluations, harassment, or other adverse treatment, but the federal courts don't always agree on these points.
Actions that have been found not to be adverse actions include:
•Making vague or isolated remarks about protected activity
•Contesting unemployment compensation
•Complaining about undesirable work assignments.
The EEOC and courts may also define adverse action more broadly as an action "reasonably likely" to deter charging parties from engaging in protected activity.
Best Practices for Avoiding Adverse Actions:
•Create and implement a specific anti-retaliation policy
•Train managers and supervisors
•Prior to taking any adverse actions against employees:
oInterview managers, noting any possible protected activity
oEnsure legitimate reasons exist for taking the adverse action
oConsult with your legal department or outside counsel.
Causal connection
The third element of retaliation claims is the causal connection. That is, the employee must show that the employer took the adverse employment action because the plaintiff engaged in the protected activity. In addition, the suing employee must show that the protected activity preceded the adverse action and that the employer had knowledge of the protected activity.
Sometimes the causal connection is shown by direct evidence, such as e-mails, and sometimes by indirect evidence; for example, time proximity (e.g., fired the day after lodging a complaint).
Escaping Liability
Once a claim against an employer is established with the three elements discussed above, the employer may defeat it by producing evidence that the employer had non-retaliatory reasons for its action. For example:
•Insubordination
•Refusal to perform assigned work
•Failure to get along with others
•Violence
•Business reorganization
•Misconduct
Retaliation Tips
•Carefully document performance problems. Progressive discipline records will help suggest that no retaliation took place.
•Ensure that documentation is consistent with employee's employment history. Be especially wary in situations that show a sudden drop in performance.
•Treat complainants like other employees to negate an inference of retaliation.
•Do not order surveillance on employees who have complained. That can constitute an adverse action and is unlawful if conducted because of the protected activity.
Summarized from Today's HR Tip: Faillace, managing partner of Michael Faillace & Associates in New York City, offered specific steps HR managers can take to prevent retaliation at a Society for Human Resource Management (SHRM) conference.
Friday, October 8, 2010
10 Mistakes Employers Make and How to Avoid Them
Focus on Ten Mistakes, Eliminate 90% of Problems
Sometimes it seems that there are one thousand ways to go wrong managing people, but attorney Peter Janus suggests that 10 critical errors cause most of the problems.
1. Conducting Unlawful Pre-employment Inquiries
Inappropriate questions can be a source for claims of discrimination. To the extent possible, standardize the application and interview process. Make sure that all applicants for a particular position are asked fundamentally the same questions. Keep questions objective and focused on the job requirements and the skills necessary to perform the requirements. Ask:
•Does this question disproportionately screen out minorities, women, or individuals with disabilities?
•Does this question measure or explore something other than a person's ability to do the job?
If the answer to either question is yes, is there a way to ask the question to obtain the information needed that is not inappropriate?
2. Delivering "Dishonest" Evaluations
Too many managers and supervisors would rather be nice than honest. As a result, many legitimate actions taken against an employee based on lack of performance can be questioned on the basis of the nice reviews. Janus suggests the following:
•Avoid putting off the inevitable
•Do not overinflate performance evaluations
•Do not make promises that you cannot keep
•In narratives, avoid making personal comments
•If you set standards and they were not met, say so
•Rely on documentation and objective criteria whenever possible
•Do not rely on incidents arising in a time period that is not covered by the evaluation.
3. Making Rash Disciplinary Decisions
Before disciplining an employee, evaluate the circumstances to avoid (or defend, if necessary) claims of discrimination and wrongful discharge. Consider the following:
•Conduct a thorough investigation
•Review company policy and the employee's personnel file
•Ascertain that the employee received a copy of the policy
•Give the employee an opportunity to give his or her version of the facts
•Make sure similarly-situated employees were treated the same.
4. Committing Termination Errors/Omissions
Terminations are tough for everyone involved, and it's easy to make mistakes in the interest of getting through the uncomfortable process as quickly as possible.
•Conduct a thorough review before discharging an employee
•Determine whether the employee was given any oral or written assurances of continued employment
Do tell the worker in person
•Do use prepared notes
•Do keep it brief (10 to 15 minutes)
•Do treat people like adults
•Do clarify the logistics of leaving and severance
•Do have an outplacement counselor nearby
•Do escort the employee to the next appointment
•Don't say "How are you, Good to see you" or use platitudes like "I know how you feel"
•Don't chitchat or try to be funny
•Don't threaten or berate
•Don't make promises you can't keep
•Don't apologize
•Don't talk about other employees
5. Making Uninformed Responses to Medical Requests
Few management tasks are more challenging than dealing with employee medical problems—the Bermuda triangle of FMLA, ADA, and workers' compensation. The time to avoid the legal pitfalls is when you are first aware of the situation. The following questions will help:
•Does the worker have a serious health condition under FMLA?
•Is there an impairment that substantially limits a major life function under the ADA?
•Does the employee have any other handicap, infirmity, or impairment of any kind that might be covered by state disability law?
•Is there an injury present that occurred during work which would mean workers' compensation would apply?
Generally, managers should contact HR when employees are going to miss work for reasons that might involve "the triangle."
6. Failing to Update Policy Handbooks
Many employers have a handbook that they prepared and distributed to employees years ago and have not kept up. As many changes have occurred in the course of the last decade, these old handbooks and policies can create serious legal problems.
You should consider your handbook as a document that must change with the times, and it must be reviewed and updated regularly.
7. Supervisors Not Knowing and Enforcing Policies
Supervisors are responsible for much of the day-to-day enforcement of the company's policies. Many of them do not know the company's position on key issues. For example, imagine a supervisor telling an employee that he or she does not have time to handle a claim of unwelcome harassment. Regularly review your policies with all supervisors and update them on all changes before the policies are distributed to employees.
8. Managers Not Knowing All Applicable Policies and Laws
"Ignorance of the laws is no excuse." Managers have an obligation, as unreasonable or impracticable as it may be, to be aware of and understand the policies and laws that apply to their workplace. Failure to comprehend these laws can initiate lawsuits, can cause embarrassment in court ("You're responsible for upholding these taws, and you've never had formal training in how they work?"), and may even result in legal action against the manager as an individual.
9. Making Incorrect Wage/Hour Assumptions
The costs of wage/hour mistakes can add up fast. Typical examples:
•Thinking that paying a salary makes an individual exempt from overtime.
•Reducing an exempt employee's pay for disciplinary reasons.
•Having employees voluntarily agree in writing to receive less than time-and-a-half for overtime hours. Employees cannot waive their rights to overtime.
10. Including Medical Records in the Personnel File
Medical records should not be included in an employee's personnel file. Medical records include all papers, documents, and reports prepared by physicians, psychiatrists, or psychologists, that are in the possession of an employer and work-related, or upon which the employer relies to make employment-related decisions.
Today's HR Daily Advisor Tip:
Janus is a partner with Siegel, O'Conner, Zangari, O'Donnell & Beck, P.C. in Hartford, Connecticut. This material originally appeared in our sister publication, the HR Manager's Legal Reporter.
Sometimes it seems that there are one thousand ways to go wrong managing people, but attorney Peter Janus suggests that 10 critical errors cause most of the problems.
1. Conducting Unlawful Pre-employment Inquiries
Inappropriate questions can be a source for claims of discrimination. To the extent possible, standardize the application and interview process. Make sure that all applicants for a particular position are asked fundamentally the same questions. Keep questions objective and focused on the job requirements and the skills necessary to perform the requirements. Ask:
•Does this question disproportionately screen out minorities, women, or individuals with disabilities?
•Does this question measure or explore something other than a person's ability to do the job?
If the answer to either question is yes, is there a way to ask the question to obtain the information needed that is not inappropriate?
2. Delivering "Dishonest" Evaluations
Too many managers and supervisors would rather be nice than honest. As a result, many legitimate actions taken against an employee based on lack of performance can be questioned on the basis of the nice reviews. Janus suggests the following:
•Avoid putting off the inevitable
•Do not overinflate performance evaluations
•Do not make promises that you cannot keep
•In narratives, avoid making personal comments
•If you set standards and they were not met, say so
•Rely on documentation and objective criteria whenever possible
•Do not rely on incidents arising in a time period that is not covered by the evaluation.
3. Making Rash Disciplinary Decisions
Before disciplining an employee, evaluate the circumstances to avoid (or defend, if necessary) claims of discrimination and wrongful discharge. Consider the following:
•Conduct a thorough investigation
•Review company policy and the employee's personnel file
•Ascertain that the employee received a copy of the policy
•Give the employee an opportunity to give his or her version of the facts
•Make sure similarly-situated employees were treated the same.
4. Committing Termination Errors/Omissions
Terminations are tough for everyone involved, and it's easy to make mistakes in the interest of getting through the uncomfortable process as quickly as possible.
•Conduct a thorough review before discharging an employee
•Determine whether the employee was given any oral or written assurances of continued employment
Do tell the worker in person
•Do use prepared notes
•Do keep it brief (10 to 15 minutes)
•Do treat people like adults
•Do clarify the logistics of leaving and severance
•Do have an outplacement counselor nearby
•Do escort the employee to the next appointment
•Don't say "How are you, Good to see you" or use platitudes like "I know how you feel"
•Don't chitchat or try to be funny
•Don't threaten or berate
•Don't make promises you can't keep
•Don't apologize
•Don't talk about other employees
5. Making Uninformed Responses to Medical Requests
Few management tasks are more challenging than dealing with employee medical problems—the Bermuda triangle of FMLA, ADA, and workers' compensation. The time to avoid the legal pitfalls is when you are first aware of the situation. The following questions will help:
•Does the worker have a serious health condition under FMLA?
•Is there an impairment that substantially limits a major life function under the ADA?
•Does the employee have any other handicap, infirmity, or impairment of any kind that might be covered by state disability law?
•Is there an injury present that occurred during work which would mean workers' compensation would apply?
Generally, managers should contact HR when employees are going to miss work for reasons that might involve "the triangle."
6. Failing to Update Policy Handbooks
Many employers have a handbook that they prepared and distributed to employees years ago and have not kept up. As many changes have occurred in the course of the last decade, these old handbooks and policies can create serious legal problems.
You should consider your handbook as a document that must change with the times, and it must be reviewed and updated regularly.
7. Supervisors Not Knowing and Enforcing Policies
Supervisors are responsible for much of the day-to-day enforcement of the company's policies. Many of them do not know the company's position on key issues. For example, imagine a supervisor telling an employee that he or she does not have time to handle a claim of unwelcome harassment. Regularly review your policies with all supervisors and update them on all changes before the policies are distributed to employees.
8. Managers Not Knowing All Applicable Policies and Laws
"Ignorance of the laws is no excuse." Managers have an obligation, as unreasonable or impracticable as it may be, to be aware of and understand the policies and laws that apply to their workplace. Failure to comprehend these laws can initiate lawsuits, can cause embarrassment in court ("You're responsible for upholding these taws, and you've never had formal training in how they work?"), and may even result in legal action against the manager as an individual.
9. Making Incorrect Wage/Hour Assumptions
The costs of wage/hour mistakes can add up fast. Typical examples:
•Thinking that paying a salary makes an individual exempt from overtime.
•Reducing an exempt employee's pay for disciplinary reasons.
•Having employees voluntarily agree in writing to receive less than time-and-a-half for overtime hours. Employees cannot waive their rights to overtime.
10. Including Medical Records in the Personnel File
Medical records should not be included in an employee's personnel file. Medical records include all papers, documents, and reports prepared by physicians, psychiatrists, or psychologists, that are in the possession of an employer and work-related, or upon which the employer relies to make employment-related decisions.
Today's HR Daily Advisor Tip:
Janus is a partner with Siegel, O'Conner, Zangari, O'Donnell & Beck, P.C. in Hartford, Connecticut. This material originally appeared in our sister publication, the HR Manager's Legal Reporter.
Subscribe to:
Posts (Atom)
