Preventing Worker Retaliation

By Jo Nisewanger

According to the Equal Employment Opportunity Commission, in 2015 alone, there were more than 50,000 charges of discrimination filed in the United States. More than 39,000 of those charges were in whole or in part, claims of retaliation. Filing a charge takes minimal effort on the part of the employee, and requires very little detail be provided. The only items necessary are a brief description of the alleged violation, the date it occurred, and information about the employer. The employee does not need to provide any evidence, and the charge itself can contain even less words than this paragraph.

Employment Practices Liability Insurance (EPLI) coverage often comes with a relatively large deductible, and it is not uncommon to find them at $25,000 or even $50,000 for smaller businesses. Consider then, that defense of a discrimination and retaliation allegation, regardless of the validity of the claim, can potentially cost employers upwards of $25,000 per instance in legal fees alone. This cost can realistically exceed six figures once investigative hours, loss of productivity and potential turnover have been factored in.

Most human resource professionals have been there before. There is a particularly troubling employee who, when hired, seemed to be a great fit culturally and professionally, but as time progresses, appears to be backsliding into negative behavior. There is increased tension amongst the team, and it is not long before a divide has occurred between staff members and management alike. Sides have been chosen. Blame has being assigned. Finally, a formal complaint has been lodged with HR by the very employee who is at the center of the turmoil. For businesses who have multiple job sites, it may be the first time human resources is becoming aware of any issues, as management may have been attempting to resolve the issue on their own.

The complainant lobs many serious allegations at seemingly every member of the team, from the manager to the housekeeping staff. The employee has meticulous notes, and uses trigger words such as “discrimination” and “hostile work environment” in their complaint. It is not hard to see that an EEOC charge may be in the near future if this is not handled in a prompt, thorough and impartial fashion.

A study conducted by Kibeom Lee & Michael Ashton in 2012 demonstrated that some individuals are more prone to seeking revenge than others, and specifically narcissists often feel as though they are entitled to be treated better or more fairly than others. Individuals whose character fits this mold will tend to be easily offended by any transgression, whether perceived or real. As such, narcissistic employees will find it particularly intolerable if the employer does not pay for having neglected or mistreated them. Consequently, employees who are disgruntled or who feel that their concerns are not given the appropriate amount of attention may seek revenge, or what they perceive as justice, on an employer, making claims of discrimination where there was none.

There are ways to prevent formal complaints to human resources from escalating to a formal charge with the Commission, the first of which is to complete a thorough investigation into the allegations with comprehensive documentation. It is important to remember at all times that the primary focus of an investigation into an employee complaint is to determine if the employee has been treated unfairly, not to exonerate the employee or manager accused.

Initial steps that need to be taken at the beginning of any investigative process is to counsel the aggrieved employee by ensuring them that no retaliatory action will be taken against them, and if they believe they are experiencing any form of retaliation then it should be immediately brought to the attention of a member of management, Human Resources or the individual who will be investigating the claim. It is equally important that the accused be made aware in no uncertain terms that any form of real or perceived retaliation must not occur. Retaliation is frequently an independent basis for employer liability, regardless of the merit of any other claims of discrimination or harassment, so ensuring that it does not occur after all warnings have been issued is crucial to success.

Before an effective investigation can take place, there are four essential questions that need to be answered; 1) Who will conduct the investigation? 2) Who will be investigated? 3) What evidence is needed? and finally 4) Who will be interviewed? Once the time has been taken to clearly identify the objective and scope of the investigation, it will be much easier to remain focused on the goal.

As a human resources professional, there are a multitude of responsibilities that demand time in any given day, but setting time aside to focus on the investigation is tantamount to its success. It is important to work quickly while being thorough. As time progresses, it will become increasingly more difficult to collect data and get accurate witness statements. Further, lengthy investigations that seem to have no end in sight may communicate to employees that the alleged misconduct is not important, or not seen as a priority.

When conducting the investigation it is important that the person leading the interview avoid aggressive or confrontational tactics, as it will only serve to create an unproductive environment, which will be counter-productive to the goal. In the case of an employee who has brought multiple complaints about their team to light, it is imperative that witness credibility be assessed during each interview, and creating a high stress environment will make this difficult to ascertain. There are several things to consider during this stage of the interview process, such as; plausibility of witnesses’ descriptions of events, witness demeanor, motivation of any witnesses to fabricate the truth, witness corroboration, and past record of the accused.

Once the interviews have been completed, and regardless of the determination, human resources should begin working with management to arrange coaching and training initiatives for the employees affected. It may be necessary to lead the entire team through a training protocol if the claim had a wide impact. It has been my experience that one of the primary catalysts of these perceived wrongs escalating to the level of an EEOC claim is a lack of management training in conjunction with a lax or non-existent performance management program, therefore implementation of job-appropriate training for management and staff alike should become a priority.

This coaching and training initiative should include a variety of courses including leadership training for the managers on site. Though these training sessions are important to get implemented, it is equally important to maintain training routine basis in order to maintain standards and set expectations of all staff; as well as cover any newly hired personnel that come on board throughout the year. All team members should participate in a conflict management course, as well as a diversity in the workplace training session as a preventative measure. As a human resources professional in a global economy, one must be proactive in diversity and inclusion training with the team from the ground up.

As a part of your new education initiative, and in conjunction with the investigation, measurable and achievable goals need to be put into place for all staff. Weekly check-ins with the team should be considered mandatory for the first 30 days after interviews have been completed. Not only will these weekly check-ins present an opportunity for progressive discipline if improvement is not seen on any issues that were uncovered in the interviews, but they will also demonstrate unequivocally that the allegation(s) that were made are being taken very seriously, and will not be tolerated.

At thirty days out from initial interviews, follow up interviews should be scheduled with the aggrieved team member, as well as any members of the team that were initially interviewed. These follow up interviews should be used to gauge improvement in the situation and relationships amongst the team, measure achievement on any goals that were set, and identify what, if any, training remains to be completed and by whom. This is an opportunity that should be used to discuss with the aggrieved employee if they have perceived any improvements as it pertains to their initial complaint. If their feelings of discrimination have not been improved upon, it may be necessary to ask what solutions they think would be beneficial, and reasonable, in order to resolve the problem.

Weekly check-ins with the manager, and monthly visits will go a long way in fostering an environment that is collaborative and harmonious. These check-ins will also give the staff a scheduled time in which to relay any ongoing or unchanged issues that were initially brought up during their investigative interviews. These monthly visits with the team will serve a variety of purposes, but most importantly they will keep you at the forefront of any issues that may arise, providing opportunity to remedy situations before they have a chance to escalate, thereby keeping you on the offensive instead of the defensive.

Jo Nisewanger, SHRM-CP, PHR HR Generalist Tavistock Development Company

Jo Nisewanger, SHRM-CP, PHR
HR Generalist
Tavistock Development Company