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Avoid Obvious Liability With Retaliation Retraining

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By George Khoury, Esq. on March 14, 2018 11:56 AM

Most employers have clear anti-retaliation policies that pretty much mirror what the law says. The basic policy, in essence, says: If you or someone files a complaint against the company (or you), then you, others, and the company, will not retaliate.

However, the word retaliate is rather vague and even high ranking officials within a company might not fully grasp how anti-retaliation laws work. And while everyone surely received some level of training during their onboarding, companies would be wise to at least retrain management on anti-retaliation practices after an exposure incident.

Retaliation is Easy Liability

Unlike many other types of employment claims, retaliation claims are rather straightforward. An employee doesn't have to prove discrimination, harassment, or corrupt practices to succeed; a retaliation plaintiff only has to prove that they made a subjective good faith complaint, and that as a result, suffered tangible adverse employment actions.

And despite the anti-retaliation policies, after an employee makes a claim against their employer, it is not uncommon for co-workers and managers to regard that employee as a social pariah within the workplace. This can frequently lead to negative consequences within the workplace such as not getting a promotion, transfer, or other assignment, having hours or overtime cut, being excluded from teams, meetings, and events, all due to the "complainer" social stigma.

Another common pitfall for employers includes creating a paper trail to oust the complaining employee. Managers think that doing so will protect them from liability, however, that paper trial may be what retaliation liability rests upon (especially if the employee was singled out for discipline when other employees were not).

If an employee has gone outside the company to report discrimination, harassment, or corrupt practices, a company would be wise to avoid seeking revenge. For in house and general counsel, it would be wise to require anyone in a position to exact revenge on a complaining employee, and especially everyone in the employee's chain of management, receive fresh anti-retaliation training.

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