Retaliation claims are common. In Fiscal Year 2018, the EEOC received more than 39,000 claims of retaliation — and that doesn’t even count the claims filed with state or local agencies. Companies need to have policies and procedures in place that will help them avoid these potentially costly claims.
Retaliation is unlawful when employees or job applicants assert their EEO-protected rights, and employers retaliate by engaging in materially adverse actions against them. These adverse actions include employment actions like firing, refusing to hire, demoting, or refusing to promote, but also go beyond that to include anything that might deter a reasonable person from asserting his or her protected rights.
One situation where employees have EEO-protected rights is when they answer questions or provide documents in workplace investigations. Companies and law firms conducting investigations of harassment, discrimination, code of conduct violations, or other legal violations, should take steps to prevent retaliation or the appearance of retaliation against employees who provide testimony or documents:
Increase awareness of the company’s no-retaliation policy.
Companies should put their no-retaliation policies in writing and make sure that managers and employees are properly trained and understand these policies, know what behaviors are inappropriate and unlawful, and are familiar with the procedures for reporting retaliation.
Avoid the appearance of retaliation.
After the investigation, any negative employment actions affecting an employee who participated in the investigation could create the appearance of retaliation. If an action such as firing or refusing to promote the employee becomes necessary, it’s best that it be done by a manager who has no knowledge of the employee’s involvement in the investigation. If that’s not possible, at the least, the manager should not be the only one involved in the decision. No matter who carries out the negative employment action, companies should be careful to ensure there is a legitimate business reason for the action, especially for actions that take place soon after the investigation.
In some cases, it may be necessary to make temporary changes in employee assignments after investigations to avoid the appearance of retaliation, as long as those changes could not themselves be seen as retaliatory.
Request confidentiality.
The fewer people who know about the investigation and about who was involved, the less likely that someone will retaliate against an employee who spoke to investigators. It’s in the employer’s interest to encourage employees to keep their involvement with the investigation confidential. However, companies shouldn’t require employees not to talk about the investigation without first articulating, preferably in writing, how disclosure of details of the investigation could cause further harm. Companies are allowed to tell managers to maintain confidentiality about the investigation, but when dealing with non-managerial employees, most of the time, all companies can legally do is make a request.
Be aware of retaliation risk for unfounded claims.
Even if the underlying claim being investigated turns out to be unfounded, the employee who made the claim could still have a valid claim for retaliation. That’s because the employee’s co-workers or supervisors might become hurt or angry about the unfounded accusation and end up treating the employee in a different and more negative way. If they take any adverse employment actions against the employee, that could give rise to a retaliation claim.
Use an outside firm that specializes in investigations.
At Ablin Law, we handle workplace investigations for companies and their law firms. We have the experience and knowledge to anticipate and prevent problems that could arise from investigations, including the possibility of retaliation claims. Contact us today to find out more.
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