PREVENTING RETALIATION CLAIMS BY EMPLOYEES
You have a responsibility to treat each of your employees with dignity and respect. As an executive or manager, you cannot be everywhere at once. You depend on your employees to inform you or submit a formal grievance or complaint when they are victims or witnesses of wrongdoing. If an employee has raised such a complaint, they must be treated with care and the utmost professionalism.
After receiving a complaint of discrimination or harassment, you must not do anything that can be viewed as punishment or retaliation. All those in authority must adhere to this standard. Breaking this rule can lead to a lawsuit—a lawsuit that can be costly and that can lead to the ruin of your company’s brand and reputation.
Hiring a workplace lawyer can help you understand the rules and regulations regarding California’s discrimination and sexual harassment complaints. If you are a small business without a legal department, you should seek the advice of an employment attorney in Los Angeles if you have received an employee complaint.
What is Retaliation?
Simply put, retaliation is any adverse action taken against an employee because they submitted a complaint or grievance about harassment or discrimination. Any adverse action designed to deter a reasonable person from making a complaint constitutes them being retaliated against by an employer at work.
Adverse action includes demotion, termination, salary reduction, a sudden transfer, a change in shift, or salary reduction. Retaliation also includes hostile and abusive behavior toward the employee or the punishment of a relative or friend who happens to work for the company.
All such actions are illegal in the state of California.
The person who submitted the complaint need not have been the target of the mistreatment. Laws related to retaliation cover individuals who have witnessed acts of harassment, racism, sexism, xenophobia, anti-LGBTQ, and other forms of prejudice, bigotry, misconduct, and mistreatment.
It is also illegal for you to punish someone who tells the truth about what they witnessed. If the company or government investigation concludes that the complaint is without foundation, you can still get sued if you punish the employee for submitting the complaint.
What Matters is the Impact
Many employers end up being sued and paying considerable amounts of money because they think they can punish an employee without looking like they are doing so. There will be great temptation to do this, and you should resist it.
What matters in a retaliation case is impact, not the intention. If a female worker complains of a shift supervisor that sexually harasses her and you change her shift, you can be sued for retaliation if she does not want to work that shift or finds it hard to adjust to the change. Suppose a black employee complains of a team leader who makes racist or racially charged comments and takes the employee off the team. In that case, that leader can get sued for retaliation if such a change damages the person’s chances for promotion and advancement.
In other words, your focus should not be on the victim but the victimizer. As an employer, you should fix the problem, not ignore it by removing the employee. This is not a justifiable move in the eyes of the law.
How to Prevent Retaliation
You should treat every complaint as though it was an emergency. It is essential to be disciplined and thorough in handling these matters. Here are some things you can do to prevent employee retaliation in your organization:
- Establish good policy
From the start, let it be known that retaliation against an employee who submits a complaint will not be tolerated. You should spell this out in the policy. The policy document should include a definition of retaliation, and it should state clearly that retaliation from managers and other employees will be met with swift and decisive punishment. The document should also tell employees how to file a complaint. - Communicate with any employee who complains
One of the best ways to prevent retaliation is to empower the employee. Employees who submit discrimination and harassment complaints often feel alone, isolated, and uncertain. Tell them that you’ll act on it once you know about what they have been put through. You should also ask them to inform you of any negative or hostile action or behavior by their supervisors or colleagues. Refer them to your anti-retaliation policy and assure them of your zero-tolerance approach. - Keep the complaint confidential and the investigation secure
You should keep the identity of the person who complains confidential. Only those with an absolute need to know should be informed. As you conduct the investigation, you should ensure that the facts you gather are kept secure. You should give the people you interview the assurance that what they say will not be disclosed.
Running Your Business According to Law
When setting up your company, you should have a clear discrimination and harassment complaints procedure. You should also put an anti-retaliation procedure in place. Workplace lawyers know how to help companies develop such documents, as they have the experience and expertise to help you create the kind of policy and procedures that will allow you to deal with such wrongdoing quickly and discreetly.
However, you still have a business to run, and you are free to fire anyone who is not getting the job done, even if they have submitted a complaint. You can still terminate an employee for past and persistent performance problems, chronic tardiness, or misconduct. The employee may try to link this action to their complaint. A retaliation attorney in Los Angeles can help you prove that the one has nothing to do with the other. If you find yourself in this situation, you will need the counsel of an attorney that is well-versed in workplace retaliation cases.