Handling an employee’s complaint, such as a claim of discrimination, FMLA violation, OSHA claim, or other employment-related issue, can be tricky enough. But the problem can rapidly go from manageable to bad (or bad to much worse) if retaliation comes into play. Our Award Winning New York Employment Law Attorney has extensively advised and counseled a multitude of businesses, large and small, on preventing and handling claims of unlawful retaliation. Taking timely, necessary and proper steps, such as contacting an experienced attorney, can make all the difference in how a claim may impact your business.
Some Quick Statistics
Federal data shows that, in 2014, of the top 10 employment discrimination claims, workplace bias charges alleging retaliation topped the list with 38,000 complaints (nearly 43% of all complaints nationally filed with the EEOC that year), nearly double the number of claims from 1998. In New York, nearly 40% of all complaints filed with the EEOC in 2014 included an allegation of retaliation. Unfortunately, retaliation is a widespread problem in our workplaces.
Federal, state, and many local laws make it illegal to fire, demote, harass or otherwise retaliate against employees for making a complaint about protected activity about their employer, filing a claim or charge against them, participating in an investigation or lawsuit (such as acting as a witness) against the employer, or engaging in various other protected activity.
Agencies such as the EEOC take these claims very seriously, and damages for retaliation claims can be incredibly costly. As noted by the Chair of the EEOC “ensuring that employees are free to come forward to report violations of our employment discrimination laws is the cornerstone for effective enforcement. If employees face retaliation for filing a charge, it undermines the protections of our federal civil rights laws”.
In a recent judgment in the United States District Court, Summerlin v. Almost Family, Inc.. A jury award of over $500,000 resulted from an FMLA-turned-retaliation claim. In Summerlin, a nurse employee, took leave from work after sustaining a work-related injury. While on FMLA leave, her position was eliminated. Subsequently, Summerlin applied for several other full-time positions with the company, but was denied each time. Summerlin argued that the company’s refusal to hire her was retaliatory and the jury agreed.
And the EEOC is not alone. A recent investigation by the United States Department of Labor’s Occupational Safety and Health Administration resulted in an award of $45,000 to a truck driver. The driver had reported a number of safety issues with regard to his vehicle to his employer, all of which fell upon deaf ears. Having no other recourse, the driver reported the violations to the Department of Transportation, which in turn ordered the company to take corrective action. The company, in turn, terminated the driver’s employment.
As always, prevention is better than a cure. Taking prudent steps can assist employers with avoiding retaliation claims before they even get started. As noted by the EEOC Chairperson, “Effective strategies, such as customized training and timely intervention, are critical to prevent and correct workplace retaliation. Such efforts benefit workers and employers and make good business sense.”
1. Be aware. Know the risks of a retaliation claim. Be aware of potential issues in your company and identify issues as best as possible before they explode into a full-on crisis. Remember that retaliation is a separate claim and can only increase your liability.
2. Foster a healthy culture. Creating an environment where your employees feel secure, comfortable, and free to report a concern to management (rather than discouraging and threatening) may give an employer the opportunity to assess and address the issue internally, and help avoid claims and an external filing such as a lawsuit.
3. Create and issue policy. If your company does not already have it, create a non-retaliation policy and distribute it to all employees, making certain to clearly and effectively spell out complaint and reporting procedures.
4. Train. Supervisors, managers, and HR professionals need to be properly trained to recognize and respond to employment issues and complaints.
Our experienced attorneys can help you create and implement policies and practices for your company. If you are named in a claim, charge, or lawsuit alleging retaliation, contact us immediately for a confidential consultation.
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