By Richard I. Lehr Esq.
Retaliation is the No. 1 employment claim filed throughout the United States. That is, an employee engages in what he or she believes is a protected activity, and the employer responds with adverse treatment, therefore the claim of retaliation. Retaliation is prohibited, for example, if an employee:
- Raises an issue about Equal Employment Opportunity, harassment or retaliation.
- Initiates or participates in an administrative agency investigation of the employer.
- Participates in an internal investigation regarding discrimination, harassment or retaliation.
- Files a workers’ compensation claim.
- Speaks up on behalf of others regarding wages, hours or conditions of employment.
Retaliation claims are among the easiest for an individual to assert. All that is needed to get it started is for the individual to allege that he or she did something protected – like raise questions about pay – and then suffered some subsequent adverse action, such as demotion, termination or reduction of hours.
The following principles will be useful to minimize the risks of a potential retaliation claim:
- Timing is key. How close is the adverse action (termination, reduction in hours, suspension) in relation to when the employee engaged in protected activity?
- Document performance issues. Did the employee engage in similar conduct prior to the protected activity and, if so, how was it handled? Assume an employee has cash shortages, then raises a protected issue and the cash shortages continue. The employee is terminated. When the employer can show that the termination was in response to a continuation of documented performance issues that arose prior to the protected activity, that employer will be in a stronger position to avoid or defeat a retaliation claim.
- Be consistent. Did the employee engage in a dramatic incident, which is handled in the same manner as other employees with similar behaviors? Examples include dishonesty or theft. You want to be able to show a consistency in how these issues are handled, so that the individual who engaged in protected activity was treated no differently from others and, therefore, no retaliation occurred.
- Make prohibition against retaliation a policy. At times, retaliation occurs that is unknown to the employer, such as retaliation from an employee’s immediate manager. In addition to your policies that prohibit discrimination and harassment, establish a policy that prohibits retaliation. Define all three areas – discrimination, harassment and retaliation – and if possible, provide multiple options for an employee to report a possible policy violation.
- Train employees on your workplace culture, which prohibits discrimination, harassment and retaliation and how to report such claims. Stress to managers and supervisors their role to model these policies (1) to not be a source of a policy violation, and (2) to report to human resources and/or the general manager any possible violation.
Be alert to the potential circumstances that may create a retaliation issue. As a practical matter, the burden is on the employer to show that the same decision would have occurred without the protected activity.
Richard Lehr is a founding partner with the Birmingham labor and employment law firm, Lehr Middlebrooks Vreeland & Thompson, P.C.
To learn more, go to alabamaretail.org/employment-law
This article originally appeared on Page 10 of the July 2019 Alabama Retailer
Originally posted at 1:10 p.m. July 11, 2019.