Retaliation claims are more common than ever. Although there is no guaranteed way to completely avoid retaliation allegations, there are best practices to help avoid retaliation claims and liability.
- Enforce policies consistently. Sometimes, a supervisor will feel resentment towards a complaining party and only then start taking action with respect to pre-existing performance issues. This will almost certainly result in a claim of retaliation. Do not dig up a little-used policy or rule to show a complaining party "who’s boss." Be consistent.
- Document performance issues. Documentation is key in establishing there is not a causal link between the complaint and any resulting workplace action. If and when a complaint is filed, the employer will still have recourse for discipline, if appropriate, but only if proper performance management protocol is regularly followed.
- Train supervisors. Be sure that front-line supervisors are aware of the risks associated with retaliation claims, and that they have awareness of what could constitute retaliation. Encourage them to communicate with their supervisors before taking any action concerning a complaining party, even after the complaint is resolved.
- Remain vigilant. When an investigation or charge is closed, continue to be watchful for problem areas. Alert managers and supervisors who know of the protected activity to the risk of perceived retaliation.
- Be prompt. Take timely investigatory action if you believe that adverse treatment or an employment decision may be motivated in any way by an employee’s participation in protected activity.
- If in doubt, seek help. If a tough call arises, such as where it appears the conduct of an employee who has engaged in protected activity legitimately warrants corrective action or termination, reach out for advice from an upper level human resources professional or legal counsel. Know the risk associated with each option.