Although there are legal protections in place designed to shelter employees from retaliatory actions for initiating or participating in workplace investigations, retaliation is still an ever-present fear for employees who initiate or participate in workplace investigations.

Title VII of the Civil Rights Act of 1964 includes an anti-retaliation clause, saying employers cannot take actions against employees who file a complaint alleging discrimination, or against employees who participate or cooperate in investigations related to such complaints. The U.S. Supreme Court upheld employees’ rights in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, holding that any adverse action taken against an employee or witness after an investigation is grounds for a retaliation claim.

Besides the Civil Rights Act, several other laws include anti-retaliation provisions to protect employees too, including the Fair Labor Standards Act, the Americans with Disabilities Act, Sarbanes-Oxley, the False Claims Act, ERISA, Dodd-Frank, National Labor Relations Act, ADEA and more.

What is retaliation?

Retaliation encompasses more than just the employee losing their job for their involvement in the matter. It includes situations where an employer refuses to promote an employee or refuses to transfer him to another location, threatens him, provides unjustified negative work evaluations or job references, conducts increased surveillance over the employee without other justification or takes any other action that could reasonably keep the employee from speaking up or assisting, because of the employee’s involvement in the investigation.

Current employers are also prohibited by law from retaliating against an employee who initiated or participated in a discrimination investigation with a former employer.

What is protected?

Employees are protected by law from retaliation when they:

– Make a complaint about workplace activity that affected either themselves or others

– Threaten to file charges

– Actually file charges

– Refuse to follow orders the employee reasonably believes are discriminatory

– Cooperate with internal investigations

– Serve as a witness for an internal investigation or court litigation

How can employers protect employees and the company from retaliation?

There are a number of best practice recommendations for employers, to protect both their own interests and the interest of employees from potential claims of retaliatory action, including the following:

1.      Employers should never be so frightened of potential retaliation claims that they stop conducting full and fair internal investigations to try to avoid liability. Employers should continue investigating all complaints, when an investigation is appropriate and necessary. If, during the course of the investigation, someone involved in it complains of potential harassment or discrimination, employers should treat that as an opportunity to open a separate investigation.

2.      Of course, when there is a reason to discipline or take action against an employee that has nothing to do with the internal investigation, employers can and should take action. However, care should be taken to make sure they are not creating even the appearance that the action is tied in any way to the employee’s role in the internal investigation.

3.      Employers are also advised to keep documentation for all employment hiring, promotion, transfer and termination decisions, for all employees (not just those involved in an investigation.) By keeping accurate and legitimate documentation showing the reasons for such decisions, employers will be prepared to defend against unwarranted claims of retaliation.

4.      When dealing with employees who are participating in investigations, take care to treat them the same, whether they are participating on behalf of the employer, or on behalf of the claimant.

5.      Employers should also know that they cannot legally try to limit the employee’s rights to participate in investigations or complaints.

6.      Perhaps most importantly, employers need to make sure that all employees, including rank and file workers, supervisors and managers alike understand that complaints and claims should be brought forward and will be handled appropriately, and that retaliatory action of any kind, by anyone, will not be tolerated. Be clear in communications, messaging and actions.

Conclusion

When policies and procedures are in place to prevent, or at least mitigate the threat of retaliatory actions and related claims, both employees and the company can be more comfortable when there is an allegation that needs to be brought forward and addressed.

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