Retaliation: What You Need to Know
By Susan Walberg, JD MPA CHC
Retaliation is one of those things that everyone knows is prohibited. If you are a leader, you know it’s not acceptable to punish an employee for reporting a concern. If you are an employee, you may fear losing your job if you speak up or ’cause trouble’. The problem, however, is that many people don’t really understand all of the things that can constitute retaliation or which activities by employees are actually protected.
First of all, it helps to cover the basics. Retaliation is any adverse employment-related action taken in response to a legally protected activity. That’s pretty vague and broad, primarily because there are a number of laws that do include non-retaliation language, often in conjunction with whistle-blower provisions. In health care, for instance, the Federal False Claims Act is one of the more heavily-cited laws that protects employees who report potential false claims concerns. Non-retaliation language also resides in laws that prohibit discrimination. In many cases these laws exist at both the state and federal level.
So when is a potential non-retaliation situation triggered? It is usually understood that an employee who reports wrong-doing cannot be retaliated against, but non-retaliation also applies to an employee who cooperates in an investigation. For instance, in cases where an internal investigation is conducted and the other employees in the department are interviewed to verify that the alleged conduct occurred. Perhaps it is well known that one or two of the employees are friends with the ‘whistleblower’ and the manager may be frustrated or feel like the employees are collaborating to cause trouble. Management cannot ‘punish’ those employees, either.
Although people may think they understand what an ‘adverse employment related action’ includes, it is often broader than many may believe. Obvious retaliation includes termination, performance improvement actions that are either not warranted or are not being applied consistently, or poor performance reviews without justification. It is not unusual for a manager to remove an employee by eliminating the position and then making some minor changes and posting it for applications. Although there may be a legitimate need to make a change, it is highly suspicious if there has been reporting by the employee and suddenly their job ‘disappears’. Human Resources employees need to probe when situations like this arise unexpectedly.
A manager cannot respond to an employee who reports by suddenly finding performance issues. This is not to say that legitimate performance issues are protected once an employee becomes a ‘whistleblower’. Some employees may think they are safe from any actions, but they are not. The manager, however, needs to be very careful when taking any actions against such an employee, making sure that the action is consistent with how other employees who may have engaged in the same behavior were treated. In addition, poor performance should not be raised for the first time in the annual review. If it looks like the poor review was linked to the employee’s reporting, there is an appearance of retaliation. It is particularly suspicious if the employee has a history of excellent reviews until they complained. The key to a claim of retaliation is the nexus between the employee’s protected activity and the adverse employment actions by the company. In other words, cause and effect.
Firing or writing up an employee are not the only methods of retaliation, however, and it’s these other issues that often show up. A pattern of actions against the employee can form the basis for a retaliation claim. Past cases have found that actions removing the employee from an opportunity to report or engage with colleagues constitute retaliation. For instance, moving an employee’s office to a more remote location, excluding them from meetings, or changing their shift or other working conditions may support a claim of retaliation. Creating a ‘hostile work environment’ for an employee is a frequent method of retaliation, where an employee is shunned, diminished, mocked, or isolated by management or others with influence.
So what is the risk? Retaliation is a common fear among employees, whether justified or not. Organizations should make sure their leaders and managers understand the scope of retaliation and the seriousness of the company’s non-retaliation policy. The danger is that, if an employee is desperate or frustrated enough, they will go outside of the organization, either to the government or to an attorney. If that happens, the underlying claim by the employee will potentially get traction, along with the retaliation claim. For instance, if an employee alleges discrimination, and then is subjected to some of the actions noted above, they may feel trapped and call an attorney. The attorney will then explore the discrimination claim as well as retaliation, and the company will be called upon to explain both. Whether you believe the employee is accurate or not, such claims expose the company to legal fees, inconvenience, and potentially bad publicity or fines. Its safe to say that most companies don’t want an external investigation, even if they have done nothing wrong.
Retaliation is among the fastest growing claims in the area of employment-related lawsuits. Ethical organizations can get caught in the net of a retaliation claim when they do not properly train management or if Human Resources misses the warning signs. The employees raising concerns may be perceived as ‘problem’ employees and therefore not taken seriously. Ignoring these issues can be costly, not only in dollars but also in public relations and employee morale. The best advice is to listen to all complaints, take them seriously, and make sure all your employees are being treated consistently.