Avoiding Retaliation Claims

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If an employee makes a complaint about your business – discrimination, safety violations, harassment, financial irregularities – your next and possibly bigger problem is avoiding a retaliation claim. Whether or not the original complaint was true or validated, an employee can claim that you retaliated against them for the complaint if you aren’t careful. Luckily, there are some steps you can take to reduce the chances that there will be a successful retaliation claim.

First, don’t retaliate. No matter how annoyed you are by their complaint (especially if it isn’t valid), don’t fire, demote, or discipline them for it. That is illegal and can get you in all kinds of trouble.

Second, avoid the appearance of retaliating. If you have a good business reason to discipline or terminate the employee, make sure your documentation is beyond reproach. If you were planning a transfer for the employee, make sure he or she knows the business reasons for it; if it can reasonably be postponed, consider it. One place you can inadvertently get in trouble is in trying to separate a victim from a harasser; make sure your actions don’t negatively affect the victim, or it may be perceived as retaliation. Unless the victim requests a change, all separation changes should affect the accused harasser.

Third, make it clear that you don’t tolerate retaliation. Have policies in place stating that you won’t allow retaliation and providing a procedure for reporting any perceived retaliation; make sure all your employees have a copy of them. If a claim is made, promptly give the policy, in writing, to the claimant and to anyone else involved. Tell the claimant to report any retaliation to you promptly.┬áInvestigate the complaint promptly, even if it was made to an outside agency. Stay in communication with the employee; if you have no news on the investigation, check in to see how they are doing. Document everything.

Fourth, but maybe it should be first, talk to a good employment lawyer when a complaint is filed. You will probably need them to help you defend the claim anyway, and they can help you avoid a retaliation claim or minimize the damage from one.


Thanks to Mary E Duncan for a great presentation!