by: Jeannine Hohman, TriStarr Staffing HR Strategist
According to a recent blog post by the Law Offices of Rheuban & Gresen,
“One Sacramento physician’s assistant recently won a settlement in a case that involved job loss due to company retaliation against the assistant’s justified work-related complaints. After two years of dedicated medical services, this assistant, blameworthy only for filing complaints against a cruel superior, was fired and also denied unemployment benefits… The fired physician’s assistant was awarded $168 million in damages.”
Workplace retaliation claims can be quite costly to any organization. As seen in the example above an employer can incur compensatory damages, punitive damages, personal liability, reinstatement, litigation costs, attorney fees and bad press that can negatively affect the bottom line.
Workplace retaliation is basically an adverse action an employer takes against an employee who is engaged in a protected workplace activity. A classic example of retaliation is firing an employee because he/she filed a discrimination charge against the company. Not only is that action unacceptable, but it’s illegal. Federal employment laws such as Title VII of the Civil Rights Act, Americans with Disabilities Act and other laws that create workplace rights, prohibit retaliation against employees who exercise those rights. This is what is known as “Whistle-blower Protection”. Each law contains its own anti-retaliation provisions and these provisions define what conduct they protect.
The whistle-blower protection laws first applied to those working for the federal government, but have expanded over the years. The Occupational Safety & Health Administration (OSHA) now administers and oversees the whistle-blower protection provisions of 21 statutes, which includes such areas as consumer products, food safety, consumer products, health care reform and securities laws. OSHA also oversees the whistle-blower provisions under the Occupational Safety and Health Act, which prohibits retaliation against an employee for exercising such rights as complaining to OSHA and seeking an inspection, participating in an OSHA inspection, testifying in an OSHA proceeding or reporting any type of safety or health related issue.
A retaliation complaint filed with OSHA must contain or allege the following:
- · the employee/complainant engaged in a protected activity
- · the employer/respondent knew about the activity
- · the employer/respondent subjected the employee to an adverse action
- · the protected activity motivated or contributed to the adverse action
Adverse action can include, but is not limited to, the following circumstances:
- · Firing or lay off. Denial of benefits
- · Demotion. Discipline
- · Denying overtime, reducing pay or hours. Blacklisting
- · Intimidation, making threats
It has recently been reported that workplace retaliation claims are on the rise and are now the top reason employees file claims with the Equal Employment Opportunity Commission (EEOC). According to a recent report, the EEOC received a record 99,947 charges of employment discrimination in 2011. The Commission obtained $455.6 million in monetary relief through its administrative program and litigation. The most frequent charge was retaliation, with 37,334 charges filed, which made up 37.4 percent of the total charges in 2011. Employers should be concerned with not only the high number of claims, but because retaliation claims are relatively easy for employees to make, but often difficult for the employer to defend against.
So as employers, what can we do? No body likes a tattletale you say? Well, as professionals we all need to learn to play nice in the sandbox. By the way, throwing sand at the person is not an option. There are a few things that employers can do though.
- · Training – train managers and supervisors so they gain a full understanding of what constitutes a protected activity and subsequently what defines illegal retaliation.
- · Policy – make sure you have an anti-retaliation statement in such the organization’s discrimination, harassment and ethics/code of conduct policies or employee handbook statements. More important is to actually adhere and follow the anti-retaliation clause.
- · Culture – creating a culture where employees feel free, rather than threatened or fearful, of bringing a concern to management’s attention is critical. If employees feel comfortable reporting concerns within the organization, it may deter them from going directly to the government or media as a first step.
For more information on workplace retaliation, click here to download our White Paper titled, How to Prevent Retaliation Lawsuits.