The EEOC Issues Guidance on Avoiding Retaliation Claims

Late last week, the Equal Employment Opportunity Commission issued its final Enforcement Guidance on Retaliation and Related Issues, an accompanying Q&A, and a Small Business Fact Sheet. If you have not read all three, you should. They will provide you with a number of steps that you can take to minimize your risk of facing a retaliation claim.

Step One Have a written anti-retaliation policy. State the policy in simple terms that all employees can understand. Provide the policy in a foreign language if necessary. Provide everyday examples and give employees clear instructions how to report retaliation. In the management version, provide a hotline and give instructions for managers who supervise workers who have engaged in protected activity.

Step Two Sanitize your written policies of language that implies threats to employees who engage in protected activity. For example, remove language prohibiting employees from discussing the company on social media or from talking about their compensation. The EEOC and NLRB say that both actions are protected activity.

Step Three Include retaliation training in your regular new hire and refresher training. Be certain that you can prove who attended the training and the content of the training. If you conduct your training via remote video, keep a copy of the video or PowerPoint used with the sign-in sheets. The training must be effective; your supervisors need to really understand what retaliation is and how to respond to protected activity.

Step Four When an employee engages in protected activity, immediately talk to the employee’s supervisors and remind them of your anti-retaliation policy. Help them come up with practical ways to deal with the employee and remove their emotions from the situation. Sometimes moving the supervisor to a different position will be the safest move.

Step Five Follow up with everyone involved.  Put this on your calendar and document your conversations. Speak with the protected employee, her supervisor and others in the chain of command to get an idea if retaliation may be occurring.
Step Six Think carefully before taking action against an employee who has engaged in protected activity. Take emotion and ego out of the equation and see if the action sounds necessary and reasonable. It is a good idea to bounce these decisions off your workplace attorney before acting. Perceived retaliation will get you sued just as quickly as actual retaliation.



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