Retaliation In The Workplace

Retaliation in the workplace occurs when an employer punishes an employee for engaging in legally protected activities. Retaliation can include any negative job-related consequences, such as demotion, disciplinary measures, firing, salary reduction, or job or shift reassignment. But retaliation can also be more subtle.

Sometimes it’s clear that an employer’s action is negative—for instance when an employee is fired. But sometimes it’s less clear-cut. In those cases, according to the U.S. Supreme Court, you must consider the circumstances surrounding the situation. For example, a change in job shift may not be objectionable to a lot of employees, but it could be very detrimental to a parent with young children and a less flexible schedule.

If the employer’s negative action would reasonably discourage a person in that situation from filing a complaint, it constitutes illegal retaliation.

Types Of Employee Separation

Employment separation refers to the end of an employee’s working relationship with a company, which can happen for various reasons. Below are the common types of employee separation:

Retrenchment

Retrenchment is the permanent termination of an employee’s services for economic reasons, such as surplus staff, poor product demand, economic downturns, etc.

Retirement

Retirement is a significant reason for employees’ departure from an organization. It occurs when an employee’s service ends upon reaching the age of superannuation.

Resignation

Resignation is when an employee decides to terminate their service by giving notice, known as ‘resignation,’ to the employer. It can be either voluntary or involuntary. Voluntary resignation is when an employee resigns due to reasons such as health concerns, marriage, or the availability of better job opportunities elsewhere. Involuntary resignation involves conducting a domestic inquiry before asking the employee to leave.

Layoff 

A layoff happens when employees are denied employment due to reasons beyond the employer’s control. Examples include machinery breakdown, seasonal fluctuations, or shortages of power and raw materials.

Get Prepared for Post-Termination:

1. Understand The Termination Reason: Know why you are fired. If you think there is discrimination, seek legal advice.
2. Check The Offer: Review the details, find any missing benefits, and compare them with industry norms. Understand the payment schedule.
3. Collect Your Work Info: Collect the relevant employee information to decide whether you have a basis for negotiation. It may be an employment manual, an offer letter from day one, and your company’s severance plan; vacation time, health/disability insurance, etc.
4. Decide On Negotiation: Severance deals are negotiable but risky. Decide if it’s fair and what aspects to negotiate

Signs Of Retaliation

There are nine ways in which retaliation might take shape after an employee exercises legally protected rights to spotlight workplace safety or public health issues, forbidden discrimination, and report non-compliance with federal and state employment and environmental laws, among others.

1. Demotion

Any employer decision to lessen your status, limit responsibilities, curtail seniority privileges associated with your position, or reduce your salary, commission, or bonus can be evidence of retaliation. Any decrease in hourly wage, salary, commission payments, paid time off, sick leave, or family medical leave under the Family and Medical Leave Act, or overtime opportunities, can be evidence of retaliation as well.

2. Passed over for a promotion or raise

Another common form of retaliation takes the form of refusing to promote or to provide a salary raise or bonus when the employee has earned the recognition, which is denied because that employee is exercising legal rights to complain about workplace conditions or employer activities.

3. Denied opportunities

When an employer refuses to provide educational benefits, stops funding attendance at conferences and seminars, or suddenly stops paying for travel or membership in a trade or professional organization after an employee files a complaint about workplace conditions, it may constitute retaliation. Employers might try to hide their intentions by claiming financial reasons for curtailing benefits and opportunities, but the discovery process attendant to an investigation or civil suit can uncover the real motives.

4. Excessive micromanagement

Suddenly, your work is examined or reviewed by a hostile supervisor who is looking for mistakes and missteps and who is constantly hounding you to work faster, change direct, or remove your authority to act independently. This is retaliation if it is following a legally sanctioned complaint.

5. Salary reductions or loss of hours

Receiving a pay cut, losing regularly scheduled hours, or losing a preferred shift to accommodate family or childcare responsibilities can also be a form of retaliation. These changes can sometimes be quite subtle, surrounded by reasonable justifications, which serve as mere disguises for retaliation.

6. Exclusion

Being intentionally kept out of meetings, training, or workplace social events can feel like gaslighting at times, especially when these exclusions are sudden, and colleagues become silent around you without explanation.

7. Bullying or harassment

Sometimes, employers rely on other employees to enforce their displeasure with your complaints and encourage others to bully or harass you at the workplace. These measures can be humiliating and demoralizing as they isolate you from your peers.

8. Excessive Negative job performance reviews

After years of favorable reviews and job promotions, an employer turns on an employee who has complained about any form of workplace discrimination or illegality by changing the tone and content of job performance reviews.

9. Termination

The ultimate form of retaliation is termination, loss of salary and well-being, loss of status, and a blot on your employment record. Termination can be actual or constructive. Actual termination is just being fired, however, constructive termination is when your employer subjects you to intolerable working conditions to force you to resign.

Over time, your employer might reprimand you for trivial incidents, write up serial negative job reviews, or engage in a scheme to humiliate you at work among your peers and threaten to terminate you if you don’t resign. The pressure becomes so intense that you are forced to quit, which might be considered constructive termination.

Why Does Retaliation In The Workplace Occur?

We have prepared three of the most important reasons why retaliation occurs:

1. Reporting misconduct or crime

Employees who report unethical and illegal actions by their superiors or colleagues may face retaliation in the form of demotion, dismissal, or other adverse actions.

2. Complaint Registration

It is reserved for employees who complain about their colleagues due to discrimination, harassment, or other violations of the employment law.

3. Participating in a lawsuit

This one occurs especially for those who participate in a lawsuit against their employer, even if they are not the plaintiff, they may face retaliation.

Common Types Of Retaliation At Work

While workplace retaliation covers a broad spectrum of conduct by employers, some types of retaliation occur more frequently than others. The most common kinds of retaliation include actions that affect the worker’s job and working conditions, such as:

• Termination or demotion

• Unjustified low or negative performance evaluations

• Transfer to a less desirable position

• Alterations in work conditions, such as work hours, schedule, or location

• Reductions in salary, wages, or benefits

• Denial of promotion or pay increase

If an employer takes any of these negative actions after an employee engages in a protected activity, and the employer took the action because of the employee’s conduct, it may constitute workplace retaliation.

A primary issue in a retaliation case often is demonstrating that the employer took the action because of the employee’s actions. Proving causation is frequently the most challenging part of a retaliation claim. In most cases, the employee’s lawyer will rely on circumstantial evidence to connect the adverse employment action to the employee’s exercise of protected rights.

Retaliation Without a Formal Complaint

While retaliation in the workplace is always unacceptable, it sometimes occurs despite employer guidelines and policies. In some cases, simply taking the first step of reporting an incident to a manager can lead to retaliation, even if the complaint isn’t officially filed with the human resources department or the EEOC. Individuals who engage in retaliatory behavior can include managers, supervisors, coworkers, and in some cases, employers themselves.

Employees (coworkers) who participate in this type of behavior may be doing so in fear of losing their jobs or at the request of a manager or supervisor, while upper management may retaliate against an employee to try to force them to quit their jobs or intimidate them into not filing a formal complaint. Here are some examples of employee actions taken before filing formal complaints that can result in workplace retaliation:

• Reporting sexual harassment by a coworker to a manager

• Going above a manager or supervisor to the company owner or CEO to report a workplace incident

• Requesting disability accommodations

• Intervening to protect a coworker from acts of bullying or harassment

• Refusing to follow certain job orders that may result in physical or sexual harassment or discrimination

How To Prevent Retaliation

Now that you are familiar with the concept of retaliation, we have prepared five effective tips to prevent it:

1. Create policies that outline your company’s retaliation guidelines

Educate and inform your employees and company leaders of the retaliation definition in the workplace by clearly outlining it in a policy. In your employee handbook, add a section explaining workplace retaliation and detailing your anti-harassment and anti-discrimination rules. This policy should encourage employees to feel safe approaching leadership or the human resources team with any harassment, discrimination, or retaliation claims.

2. Train all staff members on these guidelines

After giving your employees a chance to review these guidelines and policies, provide training sessions to ensure they clearly understand these rules. Hold a session for employees that defines workplace retaliation. Provide another to teach human resource staff members how to handle retaliation claims. Host a final session that helps managers understand how to prevent workplace retaliation.

After conducting these training sessions, provide an official document stating you held them. Have each staff member sign and date the document to prove they have undergone the training and understand the information in the sessions. Keep these documents for future reference.

3. Hold disciplinary meetings with employees, and report them all to human resources

If a supervisor is disciplining an employee for valid reasons, they should report each disciplinary meeting to human resources before holding the meeting with the employee. Tell the manager to document their reason for the meeting, and have human resources approve the disciplinary action they’re taking before proceeding. This helps ensure the action taken is appropriate in case an employee claims it as workplace retaliation.

4. Document and keep files of each meeting and warning

The supervisor should document each disciplinary or warning meeting to prove they distributed warnings before taking action. Managers should also gather emails, files, and projects to prove the employee demonstrated poor work performance or inappropriate behavior. Keeping an abundance of files that justify the actions of your company leaders and supervisors can be an effective way to prevent workplace retaliation.

5. Make sure your employees’ information remains confidential

Encourage your employees to first meet with the human resources department if they have any complaints about company leaders, supervisors, or managers. The human resources representative should ensure the information the employee shares in their meeting remains confidential. They should also assure the employee they are protected from any possible retaliation related to their complaint.

Last Words

Retaliation in the workplace can have an adverse effect on employees as well as the work environment. It’s a crucial issue that must be addressed. It usually can cause chaos and mistrust in a workplace which ultimately leads to poor morale and decreased productivity.

therefore, promoting open communications and a culture of respect can stop retaliation from happening, keeping the workplace safe, peaceful, and productive.