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So What Do You Do?
Retaliation claims are on the rise. In 1993, retaliation was alleged in 15.7 percent of the charges the EEOC received. In 2003, retaliation was alleged in 27.9 percent of all charges the EEOC received — nearly double the percentage of a decade ago. Moreover, the damages for retaliating against an employee can be severe, including punitive damages.
Here is a prescription for minimizing retaliation claims, each component of which is, admittedly, easier said than done.
First, enact a clear non-retaliation policy, and aggressively train your managers and supervisors on what it means and how to implement it. It does no good to show that you enacted a policy unless you can also show that you trained those who were to implement the policy. In addition, make sure you consistently enforce the policy, and aggressively look for potential violations – exit interviews can be an effective way to determine if a retaliation claim is in the wind.
Second, make certain that you have a workable and updated complaint and investigation procedure, and aggressively train your managers and supervisors on what it means and how to implement it. If you have the right kind of complaint procedure in effect and an employee does not utilize it, you may have an effective defense under a growing line of judicial decisions. Increasingly, courts are ruling that if an employee has a gripe, and does not give the employer a chance to resolve it by using the employer’s complaint mechanism, the employee will lose the right to recover damages against the employer. However, the complaint procedure, and how you handle a complaint once it is made, must meet EEOC and other legal criteria. That is not easy to do, and you will need professional guidance.
Third, document, document, and document some more. There is nothing more frustrating than knowing you are right, and not being able to prove it. For instance:
- An employee claims that you fired him because he brought a discrimination claim. In truth, you fired him because he has been a discipline problem for months and has been frequently warned. He denies that. How are you going to prove your side of the story? If you have the right kind of documentation – evaluations, warning notices – you will likely win. Otherwise, you will surely lose.
- You meet with your managers and decide to fire one of your employees next week. Before the termination occurs, the employee goes out on FMLA leave. He gets fired, and claims that the termination was related to his decision to take leave. If you can prove the decision had already been made, you win; otherwise, you may well lose.
Documentation is an art. Not every document will be admissible in court, and depending on what and how you choose to document key events, sometimes documents can hurt you more than help you. Again, training is the key.
Counsel Consulting Group LLC helps companies throughout the United States avoid employment and HR-related claims and liabilities. CCG assesses existing policies, procedures and problem areas; it provides customized liability-avoidance training to managers and executives; and it designs and implements business techniques that reduce employment liability risks on a long term basis. CCG also offers specialized workshops for managers and HR executives, customized consulting in focused employment-related areas, and CD-ROM and web-based training alternatives. For more information, contact us at info@powelltrachtman.com and visit our website at www.counselconsulting.com.
Powell Trachtman Logan Carrle & Lombardo PC. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.
Various insurance carriers have approved Powell Trachtman as counsel for the defense of employment practices claims, directors and officers liability claims, and other claims litigated in Pennsylvania and New Jersey. If a claim is brought against you, please feel free to contact us for further information.
