On demand 1h 16s Basic

Workplace Retaliation Claims

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Workplace Retaliation Claims

This one hour program will provide an overview of workplace retaliation
claims, including how employers can avoid and defend them. We will
discuss why employers should be concerned about workplace retaliation
claims, including the adverse effects they can have on both employers
and employees. This course will also cover the standards of proof and
remedies for such claims while taking a look at the defense available to
employers.

Transcript

- [Kristen] Hi, everyone. Welcome to this session on Workplace Retaliation. I'm Kristen Prinz, I'm the managing partner of an employment law firm based in Chicago, and I'm excited to give this presentation today. This is a really broad topic and so please forgive me if we stay pretty high level. I'm gonna try and give some good examples, but we might not get into every detail and it's certainly not gonna be a state-by-state review because of how broad the topic is. So, first, what is workplace retaliation? Workplace retaliation is something that we hear often in employment law and people use it broadly, meaning a lot of times you'll hear an individual say, "Oh, I'm being retaliated against because I reported my boss. I reported that I didn't like my boss or I reported that this person isn't washing their hands in the bathroom," which is gross, but it's not really retaliation from a legal perspective. You know, retaliation is not something that happens just in connection with any dispute or disagreement with the boss, it does require some sort of underlying legal basis, so a reporting of some illegal conduct or violation of public policy is what's necessary to have workplace retaliation. It's hard to fully define retaliation, but the Department of Labor has its own definition and they limit it to when an employee is fired or suffers some other sort of adverse action because they engaged in protected activity. So, there's going to be necessary that the employee actually did engage in some sort of protected activity and then they have to suffer an adverse action, which is also broadly defined and can be different based on what jurisdiction you're in and whether we're looking at federal law or state law. The EEOC defines retaliation as when an employer takes materially adverse action because of some action that the employee took to exercise their rights under the EEO or under EEO laws like Title VII laws. And they would consider that protected activity. And really anytime an employee is reporting illegal conduct, that's gonna be considered protected activity. Under the EEOC, typically the individual has to be reporting some sort of Title VII violation. It doesn't have to be a violation that happened to them, it can be some other protected activity. And then, you're going to need materially adverse action, which we're gonna get into a little bit later because that also is a bit of an ambiguous term. And you also have to tie the materially adverse action to the protected activity. So, sometimes the evidence just is that the employee took some action that is protected, considered protected activity, and then shortly thereafter there's some sort of temporal proximity between the employee engaging in protected activity and the employer taking a materially adverse action. So, employers do certainly need to be careful that 'cause retaliation, I will say, is probably one of the easiest claims to prove because a lot of times it's subconscious, you know, and people, we feel this sense of righteousness about, well, you know, if the person, the employee who took protected activity is not performing their job, they should still get, for example, a low performance rating. And that might be true, but if somebody just reports some illegal activity and then immediately thereafter all of a sudden their rating, which was the prior year or mid-year, a very high rating, all of a sudden they have a low rating, you should really caution your client about the optics of that. And the EEOC defines protected activity very broadly. For example, just discouraging exercise of EEO rights is considered protected activity. Meaning if we're discouraging, if your client is discouraging that employees report discrimination or report harassment, or if they're discouraging an employee testifying in support of another employee, that could be both protected activity and also retaliatory activity. And this is where we get into adverse actions and how broad they can be. An employee doesn't have to be terminated to have a retaliation claim. And the research is showing that more and more times you have employees who remain employed while pursuing a discrimination and retaliation complaint. And so, you might question, "Well, what damages has that employee suffered?" I would say I'd be very cautious about that because these claims can be considered very broad and maybe the damages are a failure to promote, so reduction in compensation or reduction in future compensation, a lost bonus. We have to be really creative when examining whether there is a retaliation claim, whether there is an adverse action. Otherwise, we can't really advise our clients to the best of our ability if we're looking at adverse section and saying, "Well, the employee wasn't terminated, and so you don't have a lot of liability because the employee's still working for your client," or you represent the employee and you're saying, "Oh, maybe you don't have a lot of damages 'cause you're still working there." These claims you'll find if you do a bit of research, there, juries are looking at them more broadly than that, and so we have to be very cautious when we're advising clients. So, adverse actions, as we said, are very broad. And the EEOC really looks at, well, is this an action that would incur or discourage an employee, another employee, or that current employee from engaging in this protected activity? Are you failing to hire someone? Are you not considering them or not giving them an interview? Are you denying them a bonus because of this? Is it an effective demotion? Because sometimes the demotion is not entitled or there's not a formal demotion, but is there an effective demotion where you've taken away responsibilities, you've marginalized the employee, all of that, if pled properly and proven, could be considered an adverse action. The EEOC does include some non-employment-related actions that would dissuade a reasonable person from engaging in protected activity. Those types of things include, you know, outside of work maybe discouraging somebody from testifying, as I said, that's an outside activity. Or encouraging somebody not to engage in some extracurricular activity that that would support reporting discrimination and harassment. Those could all be considered, but those all would be considered when a plaintiff is trying to allege an adverse action and protective activity. The thing that is very hard with these cases is that it's not going to be a black and white decision, which I guess is what keeps us lawyers employed because it really does depend on the facts and the circumstances of the situation. You know, this, if you look into the EEOC guidance, they cite to this Supreme Court case where the employee was transferred to a much harder, dirtier job. They received the same pay, but the employee was suspended without pay for more than a month, even though it was later reimbursed. Those two things were considered material adverse actions that could be considered retaliation. There's been wide decisions about what's adverse actions. So, filing, which I realized I have a typo, excuse my presentation, filing false criminal charges against a former employee for stealing, that is an outside of employment adverse action, changing the work schedule of a parent who has care taking responsibilities for school-aged children, that was considered a material adverse action. So, specifically in that case, the employee received the same compensation, no changes were made to compensation, but it was considered a materially adverse changing the work schedule of that employee, excluding an employee from weekly training lunch. So, preventing an employee from having access to professional advancement is a material adverse action, or at least can be a material adverse action, which is, again, why we need to be so cautious when advising clients on workplace retaliation claims. The other issue that makes workplace retaliation claims very difficult for employers especially and probably makes them easier for employees to pursue is there are multiple statutes from a federal standpoint and from a state standpoint that prohibit explicitly workplace retaliation. We discussed a little bit of Title VII when we're talking about the EEOC, the Age Discrimination and Employment Act would fall under that as well, ADA, Fair Labor Standards Act. If employees contest not receiving overtime, they have protection, they would have a protection from being free from retaliation for raising the issues. OSHA, FMLA, the National Labor Relations Act, which a lot of employers don't realize that the National Labor Relations Act applies to private employers as well as union employers. So, excuse me, it applies to all employers, I should say, and not just union employers. And so, we really need to be careful because there's so many ways that an employee can pursue a retaliation claim in terms of not just what's an adverse action, but then what is the protected activity that they're engaged in. And then state laws have pretty broad workplace protection statues, statutes, excuse me, California, Illinois, Massachusetts, New York. I mean, most states now have some workplace protection statutes that prohibit retaliation. And then there's also, in addition to the statutes in states, you have these common law retaliation claims. And typically those are gonna be based on violations of public policy, which is also broad. Typically, in a state they're gonna have to relate to the public policy at issue should relate to that state. Like for example, if an employee reports that that there's a product safety issue internally, that's usually going to implicate both some federal and some state laws. And it would also be common law because certainly there's gonna be a public policy in the state to protect the citizens from products that, excuse me, present safety concerns. There's also been a lot more passing of whistleblower statutes, which typically have a little bit higher standard than the public, excuse me, than the common law whistleblower claims. Usually, these statutes require that the employee either refuse to participate in some illegal activity. So, for the employee, if you represent an employee, you would wanna advise them if you're advising them while they're still employed, make sure that they're documenting their refusal to engage in the illegal activity or violation of public policy, or they are required to report the conduct outside of the employer, meaning to like the police, or the FBI, or some sort of law enforcement agency. Reporting violations of law internally are often is often not enough to meet the standards of these statutes. But there are some states where that's not true and where just reporting it internally can be enough, but refusing to participate is typically enough. And then, it's going to depend on whether the law is preempted. So, for example, if an employee is testifying in support of a colleague's claim of discrimination, that is going to be preempted by Title VII and you would not be able to pursue both the Title VII retaliation claim and the whistleblower claim. This is often used when there's some accounting issue, or tax reporting issue, or something that is illegal in carrying out the job of the employer. It's reported either externally, maybe even to usually to the police or it's in writing the employees refusing to participate. Now ,again, it's not just Title VII that would preempt some state retaliation claims, you'd also have like the SEC if an employee is reporting accounting issues or tax fraud, like I'm sure everybody's been following the FTX story, something like that. The SEC rules or OSHA would preempt the state law whistleblower claim. Why should employers be worried? The verdicts on these are not good. I mean, I have to say these claims are definitely on the rise. They've been increasing steadily, this was in 1999, but since then they've skyrocketed up. They're the fastest growing type of charge at the EEOC, but also they're just so much easier to prove. And this is more anecdotal, but I really think it's because people have kind of gotten to the point where they're like, "Well, anybody who's in a protected class, we all have to deal with some level of discrimination or bias at work." And so, those things might be harder to get a jury to give a big award on, but nobody likes it when there's retaliation. And we kind of all believe that, "Well, if this person reported it and something negative happened, it's very easy to tie the two incidents together." And the fact is, you don't even have to prove that the underlying action was illegal, you just have to prove that the employee had a good faith belief that it was illegal or violated some sort of public policy. And the research shows that jurors believe that employers might be motivated by revenge. I think we all kind of believe that, we all think, "Well, of course, if somebody did something that poses a big harm to your business or your team or your job as the supervisor, then it seems pretty likely that you might take some action to harm that person, even if it's unconscious and not intentional." And that's the fact is that retaliation is very implicit. People react because of the feeling that somebody has done something to harm them, and that makes it easier to prove because if we can see it, we see what happens, we've seen these, and this is in movies and stories and all of that, so it becomes a lot easier to prove to a jury, or at least to get them to believe that that was the intent of the employer or the supervisor. And the research does shows employees actually have a much better chance of getting a positive jury verdict when they have a retaliation claim. Just recently, a Los Angeles jury awarded an insurance executive $155 million for his retaliation claim. And that was because he says he was fired after he testified in support of a class action gender discrimination claim filed by a woman at the company. You know, is this jury award an outlier? Yes, and is it likely to be reduced or potentially overturned? Yeah, maybe, but the fact is, you know, even if it's a substantially smaller award in the end, this is a significant, this is a significant jury award and it really does demonstrate how jurors view these types of claims. And I think especially that they're saying, "This guy says he stood up for these women, he honestly testified in their support and as a result he lost his job." That's kind of a nice story. And most, you know, for anybody who's a litigator, most of litigation is what's the story you're telling? Is it easy to believe? Do I like it? Is there a villain? Is there somebody who's the hero? Those are the things that we'd like to see on trial. So, this should give some caution to those attorneys who are advising an employer. Now, I should say it shouldn't really embolden somebody who's representing an employee because this is such an outlier. I think sometimes these types of awards can be good cautions for employers, but maybe sometimes employees think that this is more normal or this is what happens. And the fact is you still have a huge hurdle to overcome if you represent the plaintiff in one of these cases. In Illinois, we've litigated whistleblower retaliation claims in my office on behalf of employees and it's, I don't wanna say it's easier, but certainly those are the claims where you can more better paint a picture of the bad guy and the good guy and standing up for what's right. And those are the things that people really respond to or have an emotional response to. And if you see the level of punitive damages, so in Iowa there was this, this is just a couple years ago, $80 million judgment in punitive damages. Now, the compensatory damages were 527. So, I don't think that that verdict would stand up to an appeal or judicial scrutiny. At the same time, again, it's extremely damaging to a company to get that kind of punitive damages award and then the settlement discussions are obviously changed once that type of award is granted. Massachusetts recently awarded $4 million to a security guard who said he was fired after he complained about national origin discriminatory treatment. And again, these are not cases where the plaintiff had to prove underlying illegal activity, they just had to prove a good faith report was made. Just a couple months ago, a jury awarded $250,000 to a sales associate at Sam's Club who also said she was retaliated against for reporting discrimination and harassment. You will see that the largest verdicts relate to a termination of employment. I haven't seen really big verdicts based on things like change in schedule or change in job duties, but everything is gonna depend on what does the jury think about that story? So, we're better to offset the cell from the beginning. And this is a risk that employers face, a large risk that more and more employers are facing, which is employees keep their job, keep their pay, and they pursue their claims. And maybe those things can get resolved with a separation or severance agreement. But I could tell you that the risk of an employer continuing to retaliate against an employee who's suing them is pretty high. It's hard to continue working with somebody who has filed a lawsuit against you. So, under Title VII and the ADA and ADEA, so in EEOC, there's two, they consider two types of retaliation claims and those are opposition claims. So, that's when the employee says, "I was retaliated against because I opposed a practice." And that doesn't actually require that the employee files a formal complaint or even puts in an email or has anything in writing. Although, if you represent an employee and there's nothing in writing and there's no documentation, I think you're really setting yourself up for a very big challenge in proving your claim. You know, employee, if you advise an employee who's still at work who feels that they're being subjected to retaliation, you wanna help them document as much of that as possible. I do see sometimes employees think that documenting retaliation or documenting illegal activity can be effectuated by sending themselves an email or keeping a timeline or a diary. And that's fine, I think that that can be really helpful in terms of making sure that their memory is accurate and they're getting all the details and that they fully understand, you know, what they want to pursue. But at the same time, you are gonna have better evidence if you're advising an employee who's working and you're making sure that they are documenting an issue. And then on the other side, for an employer, if there's some performance issues, you want to be very careful that those are being documented in a way that in no way can be tied to the protected activity so that you are treating these things as completely separate. And I can tell you for sure that actually writing down we are treating this as completely separate is not going to be helpful because essentially by saying you're treating this as a separate issue from that, you are acknowledging that that issue is playing a role. So, make sure you're getting some sort of outside perspective on how you're documenting issues or how you're helping a client, an employer, client document issues. If they really want to document performance issues with an employee who has reported illegal activity or who has engaged in protected activity. And especially if they've already filed the complaint and they have included a retaliation claim in there, even though sometimes clients don't like to hear this, it's also oftentimes a good idea to work with the employer to see if there could be a separation of employment and potentially some terms of separation that would be beneficial to the employer client. I think it's very hard to continue working. You know, I always think every relationship that we have in our lives are gonna be relationships based on on values and shared values or every good relationship. It is very hard to continue working with someone who has filed a lawsuit against you. And so, if we can figure out a way to separate these parties, it's typically the best idea. Opposition claims include reporting discrimination, harassment, threatening to file a claim. So, even it doesn't have to be actually filing the claim, it can be saying, "I'm considering filing a claim," and then the refusing to participate. Again, if you represent the employee refusing to participate in illegal conduct, that employee really should document the refusal because memories fade and usually if the client, the employee client is saying, "Well, I told my boss I would not participate in this activity," more likely than not, their boss is not going to remember those details in the same way. Even if their boss is the most friendly witness, I think it's very difficult to ensure that somebody shares the exact memory with your client. And again, one of the reasons why these claims are easier to pursue for an employee is because it's a good faith belief standard and the good faith belief standard is the employee has a good faith belief that the employer is engaging in the activity and that the activity is illegal. So, if they can prove that they have a good faith belief that the employer has engaged in illegal activity and they refused to participate in that, that is enough to establish retaliation. There's also, excuse me, participation claims and those are when the employee has actually engaged in some protected activity with like the EEOC for example. And that's gonna be somebody who's brought the claim of retaliation like that they were retaliated against because they filed a charge of discrimination or because they testified in the case. And, you know, these are I think more claims that employers definitely need to be extra cautious of because these types of claims are likely gonna have a lot more documentation available. You know, because there's going to be something that actually was filed, something that is in paper, in writing, there's gonna be evidence already. And the evidence, because we assume there's gonna be more of a presumption that the employee filed the claim because they do have a good faith belief even if the employer wasn't discriminating against them, there is a little bit of an inference here that, "Well, the employee filed this claim because they definitely believed that they were experiencing discrimination," and that puts your employer client at a higher risk. So, standards of proof for retaliation claims is the next section. And for EEOC, they use a but for standard. For EEOC, they use a but for standard when it's against private employers and state and local government employers. So, that means even if there's a lot of reasons, so like even if performance is one of the reasons for the adverse action, if the adverse action wouldn't have occurred without the protected activity, the employee having engaged in protected activity, that is enough. So, the but for is a little bit of a lower standard when an employee has a retaliation claim when, excuse me, when the employee is a federal employee and has claim against the federal government, the standard shifts to motivating factor. If the protected activity motivated in any way the retaliatory action or the adverse action, then it's a little bit easier standard to meet. I will say though, however, having litigated against the federal government, it's a very long process and even with the different standard of proof, you know, it's a tedious process for an employee to go through. And so, I would caution, you know, you really want to make sure that you have very strong evidence, very strong damages, and good liability. And then, most federal and state laws that are out there that are outside of like Title VII or the ADA or the ADEA typically apply the but for standard, so the higher standard. I can't really say that's universal, but in my experience, and I do have experience, you know, obviously in Illinois and we have some experience litigating these cases outside of Illinois as well, and that is the more common standard of proof is the but for standard Remedies, you know, well, if you're gonna litigate the case and you represent an employee, the remedies are key and they're pretty broad. So, under Title VII, you're still gonna be and the ADA, you're still going to have the statutory limits on compensatory damages. And so, that might influence whether that's the best claim to pursue. Oftentimes, if you have a Title VII claim, you usually would have some state law remedy, excuse me, state law statute as well that you could be pursuing claims under. And many times that gives a plaintiff access to more damages or more potential remedies. Compensatory and punitive damages, they're not available under the Equal Pay Act or the ADEA, but there is this option for liquidated damages which doubles the wage and economic losses. In those cases, they have to establish a willful violation of their statutory rights. Now again, it's much easier to establish a willful retaliation claim than it is to establish a willful underlying violation. And so, I think we really need to keep that in mind. You know, from my experience with the common law retaliation claims and even in Illinois, the Illinois Whistleblower Act retaliation claims, I think juries are much more inclined to punish an employer or a supervisor who engaged in retaliatory conduct than for a supervisor that may be engaged in the original wrongful conduct. There's, I think there's a little bit more forgiveness of maybe there's some sort of inadvertent or unintentional violation of law, but then once that's reported, how the employer responds to that is going to be heavily judged by , excuse me, by a jury. And then with, excuse me, going back to remedies and the punitive damages, even though many human rights laws that are state-based and many of the common law retaliation claims allow for unlimited punitive damages awards for employees, most courts are not gonna uphold an unlimited punitive damages award. There has to be some rational relationship between the punitives award and the compensatory award. And then, that is gonna vary based on what court you're in, the judge you have, the case law that you could cite because some judges have like just a general rule that they would never award more than, or excuse me, they would never confirm a jury award of punitive damages that is more than, for example, like three to five times the compensatory damages. But there are judges, there are jurisdictions, there is case law that supports far greater punitive damages awards. I would say if you represent an employee and you're going to trial on retaliation claim, you want to get as much evidence of actual damages into the record as possible. And then on the opposite side, if you represent the employer, you want to diminish the damages, the actual compensatory damages as much as possible because it will help if you do have to appeal or challenge, challenge or appeal the punitives award. Some claims do also allow for injunctive relief, excuse me, as a remedy for retaliation claim. It's not as common though. I mean, oftentimes unless the employee has sought, you know, reinstatement or something like that, it's a bit less common. And most plaintiffs are seeking money damages when they're pursuing a workplace retaliation claim. Defenses. So, if you can end the claim from the beginning and if you represent the employer, obviously the goal would be either, you know, avoid the claim altogether, which is a good idea, or get rid of the claim from the beginning. Okay, so if you can avoid the claims from the beginning or get rid of it at the beginning, that's ideal. You know, I think most of us are familiar with the motion to dismiss and saying the employee has failed to meet pleading standards. Now, if it's a federal claim, that's gonna be pretty tough motion unless the pleading is seriously lacking because of the notice pleading standards. But in state actions, oftentimes it's a bit easier. And then also there's other strategies for why somebody might want to, why an employer might want to file a motion to dismiss, maybe to prolong a case, or make it difficult for the employee, or maybe push it towards settlement before you get to discovery. Those are all some strategies that might be employed in terms of filing a motion to dismiss. Another thing is no adverse action. Now, even though the EEOC has broadly defined adverse action and a lot of the statutes broadly defined adverse action, you know, most of these claims unless they're going before an ALJ through the actual agent, through an agency, or maybe they're going through, but even if they were going through arbitration, I would say a lot of judges, a lot of arbiters are going to think, "Well, what is adverse action?" It really does because the most typical adverse action is the loss of the job or the termination. You know, there's gonna be oftentimes a bit more scrutiny on what's the adverse action. And I think that's important to note that sometimes we read the statutes and we think, "Oh, for sure this is great because yes, my client lost a bonus or had a negative performance assessment." And that might meet the standards of the statute or even maybe of one or two cases. But everything is gonna depend on your tribunal and who's actually your trier of fact here. And so, you might wanna be more cautious about taking a claim where the adverse action is not a termination or a real loss of income or it maybe potentially a denial of employment could be a good one, but you wanna make sure that there are some damages and then this is a good defense that there hasn't been an adverse action. And if you can find some good legal research, it shows that the type of adverse action that is alleged has been held by courts in your jurisdiction to not be considered adverse action, that will be very helpful. also, if the employer's unaware of the protected activities, and this kind of goes back to something that I had said earlier about how important it is when you represent an employee that you get some good documentation, that you advise if the employee is still employed and they are experiencing retaliation, advising them to document that retaliation and document what's going on, document the reports, the protected activity, that is gonna be a lot more helpful because if an employer was truly unaware of the employee's protected activities, it would be very hard for that employer to retaliate 'cause the whole idea of retaliation is that the employer knows about the employee's protected activities and then has taken steps to quiet that employee's protected activities or to get rid of that employee because they engaged in those protected activities. And this is why we would tell people that oral opposition claims are incredibly difficult for employees to prove. I can not tell you how many times people will say employees, perspective plaintiffs, will say, "Well, everybody that works there will testify to this because they're all honest people and they will, they know what happened here, and they will support me and they'll provide honest testimony." I don't think, I'm not so jaded that I think, "Oh, everybody's lying," but I do think people's memories can be influenced by their circumstances. And the fact is if you are going to notice up a bunch of employees who still rely on that employer to support their family and provide them income, it is highly unlikely that they are going to provide testimony that is going to support your case. And I think that is why at the very beginning of this presentation, when I talked about that recent jury verdict in Los Angeles where the male executive had testified in support of women, female employees, who had a class action claim of gender discrimination, I think that's what one of the things that influenced the jury in giving such a high punitive damages award is the fact that most times people think, "Listen, if you are employed somewhere and he was employed at the time he gave the testimony, you are not likely to testify against your current employer. Even if you strongly believe like maybe they're not the best or they didn't respond the best to this situation, it's a pretty tough ask to ask somebody who relies on their employer to support their family and ask that employee to come in and testify against the employer." So, you know, if you can, you want as much documentation as possible. For my office, it's so important to help our employer clients, our management side clients avoid retaliation claims because, again, so much of retaliation is really implicit or unconscious, and we're all human and you make mistakes, but it's hard to say, "Oh, I really like this person and I'm gonna treat them so fairly," when you know that person has alleged that you engaged in some sort of illegal activity or that you are biased or bigoted or any of these things that are very, they feel like very personal attacks and maybe they're not personal attacks, but they feel like it. And so, any supervisor who gets that kind of allegation is going to have some kind of negative feelings towards the employee. And maybe your client is the one client, the one human being who can rise above all of that and not let any of that influence them, but most of us humans are flawed. And I always say 'cause people ask, "Why would a company do this? Why would a company let retaliation happen?" And I always say companies are run by humans and we always have to keep in mind that humans are the ones making the decisions and we are not all 100% objective. I mean, maybe someday when robots are running all the companies and making all the decisions about employment matters, maybe then, I doubt it, but maybe we will avoid these kinds of biases coming into play. But until then, you know, we're relying on humans and we're relying on human decision making. So, some of the things that we really strongly try to encourage is making sure that clients, employer clients have strong reporting policies and that means that the policies in writing, but also just how the organization engages that reporting bad behavior is encouraged and is taken very seriously. We want, you wanna make sure that managers and supervisors are trained and that they are encouraging employees to speak up and report things that either violate policies or are not aligned with the company values. And then keep informal communication going. You know what? I think what happens is when you have a culture where people feel like they can't speak up about the policies or that they're gonna be in trouble if they do say something about it, those are the places where you're more likely to have a retaliation claim. And, you know, as I said early in this presentation, retaliation claims are on the rise because people are reading articles like the one about these big jury words, you know, whether in Iowa or in California, and they see that, "Oh okay, if I report something and the company doesn't address it and then they fire me, you know, I might have more of a claim." Whereas, if you create this positive working environment where you're encouraging your client's management team to engage in conversations, to ask for feedback, you're more likely to have, you're more, excuse me, you're less likely to have a retaliation claim, but you're also less likely to have any claims that would support any of the underlying claims that would be necessary for the employee to have a retaliation claim. And then this is a big one, and we also strongly encourage employers to investigate all complaints. Some companies are like some really large companies have internal investigators and they can handle those things, you know, that could sometimes be looked at as a skewed or one-sided investigation. So, we do encourage clients to use an independent investigator if you're a litigator, obviously you don't wanna be conflicted out of being able to represent your client if the matter does go to litigation. But actually, if your office does investigations, I mean our office does investigations, I think a well-run investigation can help avoid litigation because you can use that investigation to provide coaching to all the parties to make sure that the communication is open with the person who reported the issue. And also, it builds trust that, "Hey, if I bring in an issue for the company is gonna take it seriously and they're really gonna look into it and then they're gonna tell me what they found and how they addressed the issues that they found." Always thank employees, make sure that your clients are, if your client is an employer, make sure that they're thanking employees for bringing matters to attention of management. Make sure that it's explained what the policy is, and what the process is for investigating the claims. And also, make sure there's a closeout meeting where the employee who reported an issue is told what's happening. And I wanna be cautious here because when I say is told what's happening, you don't wanna give away obviously confidential information, you don't wanna be talking about corrective action, specific corrective action that maybe another employee received as a result. But you do want to say if some corrective action was taken, you know, or if some portion of their claim, their report was substantiated, you wanna say that was substantiated, the company is taking action. We're also gonna provide ongoing coaching or something along those lines because you want the the employee to trust in the system and the process. And then, you know, now a lot of states, definitely Illinois and New York and California, but more and more states are requiring training, annual training on things like sexual harassment. I'd say companies should train managers and supervisors on how to address complaints and how to really be self-monitoring their own behavior to avoid retaliation claim. And it's hard 'cause sometimes when you're telling somebody, "Oh, you really need to be extra careful and avoid retaliation," that's when they start focusing on behaviors that actually end up being considered retaliatory. So, this kind of training really should involve ongoing communications with team members so that everybody is aligned on what's the process and how strongly the company prohibits retaliation. The other thing is consistency. You know, much like children, adults rely on consistency. And so, if all of a sudden you have a manager documenting performance issues of somebody who complained about that manager, that is likely to be perceived as retaliation. So, if you don't document issues, don't start documenting issues just because somebody has reported a complaint. I highly recommend that you always be documenting issues. And then if you do that, it's much easier to substantiate the basis for documentation later on when somebody has raised a complaint. And then, even if an employee just perceives retaliation, but you don't believe it's there, you know, sometimes we're afraid to hear somebody's perception because it's false, but then it could expose your client, you know, as an employer, it could expose them to greater liability. And so, maybe they don't seem to want to hear the complaint. Encourage them to really seek out complaints. Just like anything else, when you hear something sooner, you can address it, you can take care of it, and you can stop it from festering and becoming a much bigger issue, which is oftentimes what happens when an issue is not addressed right off the start, right from the beginning. And with, you know, the saying we don't know what we don't know is very true here. And I think for supervisors sometimes they think everything is going well and that there's no issues when in fact there's major issues that just aren't being vocalized because of the fact that the environment is such it's not encouraged. So, if we can get more supervisors, more managers to encourage open discussion and open communication, it would be much easier to avoid the pain of litigation. And I have to say, whether you're an employee, whether you represent employees or employers, I mean, I personally think litigation is fun. I have never had a client, and we represent employers and employees, I have never had a client tell me that litigation is fun, none of them like it. Or maybe they like it in the beginning, but by the end pretty much all of them hate it. And then remind your client to contact you before taking any action. So, especially at this time of year right now, end of year there's a lot of performance evaluations being done. Employers definitely need to be mindful of how their communications can be perceived or potentially used against them in the future when an employee has made a report of some kind of illegal activity. So, this is my overview of workplace retaliation claims. Again, we kept it very high level because the specifics of these claims are so broad, there's so many opportunities for an employee to pursue a retaliation claim, there's so many ways for an employer to maybe get in some trouble with these claims. If you have a specific issue that you want to discuss, I am more than happy to do that with you. If you want more details on the types of claims that we've been seeing or what's more successful, what's less successful, I'm happy to discuss that with you as well. You know, this is a... It's continuing to grow as a practice area because there continue to be more complicated laws on the books and then on top of it, there's just more opportunities I think these days for employees to report things. And sometimes, they might be reporting a good faith belief of illegal activity and maybe it's just a misunderstanding. So, if I can help avoid those things. One other thing before I end I wanted to say is a lot of our clients are using coaching and mediation to address issues early on. And I would say I think the most successful companies that really avoid these claims or the most successful teams, I should say, because it's hard as a company gets larger, are those teams that have regular kind of listening sessions at least quarterly, maybe monthly, where there's very open communication with team members and that these issues are addressed much earlier than or far sooner than they could even become problems. I think if you can facilitate that for your clients or if we could help you do that, I'd be happy to do that. So, thank you, all, for this time and I hope that you're walking away with more information about workplace retaliation and what an interesting area of law this is becoming.

Presenter(s)

KP
Kristen Prinz
Founder and Managing Partner
The Prinz Law Firm

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