retaliating against an employee

We’re only human. When an employee files a wage and hour complaint or launches a lawsuit, the temptation can be strong to “get back” at the worker. After all, they’ve attacked your livelihood, perhaps even made claims about you as an individual, and probably cost you time, money and aggravation.

However tempting it might be to lash out against the person who complained, it’s always a bad idea. As John Hendrickson, EEOC regional attorney in Chicago put it, “[Retaliation] never makes sense, it is never good for business and it is always illegal.”

And it can be very expensive. In a recent case (EEOC v. Cognis Corp.) the court decided the company had illegally retaliated against an employee by firing him. In the end, it cost the company $500,000 to clear the case (not including attorney fees). Ouch!

It’s important, then, that we understand more about the issue of retaliation.

What is “retaliation”?

Retaliation occus when an employer punishes an employee who has engaged in a “statutorily protected activity.” Protected activities can include lodging a discrimination complaint with the EEOC, filing a lawsuit claiming minimum wage or overtime pay violations, complaining to the Human Resources department about sexual harassment, organizing for a labor union, and many others.

In order to claim retaliation, an employee needs to show:

  • They were engaged in a protected activity.
  • They suffered an “adverse employment action.”
  • There was a causal connection between the two.

What is an “adverse employment action”? Frankly, almost anything you do could potentially be claimed to be an adverse action. In court cases, workers have claimed adverse actions including:

  • Firing, demoting or transferring to a less desirable position or shift
  • Ignoring or berating the employee
  • Taking away work or responsibility… or alternatively, assigning too much work
  • Refusing to re-hire a former employee

Who is protected from retaliation?

The employee

Any employee who directly engages in a “protected activity” is protected from retaliation by statute. Anti-retaliation provisions are included in the Fair Labor Standards Act (FLSA), Family Medical Leave Act (FMLA), Americans with Disabilities Act (ADA) and others.

It’s important to note that because of the way the FLSA statute is worded, anti-retaliation protection applies even in situations where the employer isn’t otherwise covered by the FLSA. Qualifying complaints can be oral or in writing, and may be filed with the employer, with a federal or state agency or through the courts.

Their close associates

In addition, the Supreme Court has established the principle of “associational discrimination.” This means close associates of the employee — parents, children, siblings, spouse, fiancé — are also protected against retaliation initiated by the employer. In other words, employers can’t try to “get back” at complaining workers by demoting, firing or otherwise retaliating against their loved ones.

In the case of Thompson v North American Stainless, LP, for instance, the company fired Eric Thompson, whose fiancée (a co-worker) had filed a discrimination complaint. The case went all the way to the Supreme Court, where in 2011 the justices ruled his relationship to the co-worker alleging discrimination was within the “zone of interest” protected by the law.

Former employees, too

Protection is also extended to former employees. A federal appeals court in Cincinnati held in the case of Templeton v First Tenn. Bank N.A. that a company’s decision not to re-hire a former employee could be retaliation. The employee had resigned two years prior after claiming sexual harassment. The court decided there was enough “temporal proximity” between the two acts to make it possible the decision was retaliatory.

You can also find yourself on the hook for retaliation if you try to interfere with a former employee’s ability to get a new job. For instance, as satisfying as it might feel at the time, I don’t advise bad-mouthing a former employee when someone calls for employment verification.

What if the employee violates our workplace rules?

Sometimes employers go too far in the other direction. They’re afraid to take any action against an employee who has filed a complaint — no matter how egregious the worker’s conduct — lest the employee claim “retaliation.”

But allowing an employee to “get away with murder” could be just as harmful as retaliating. It can lead to morale issues with your other employees, possible customer service issues, additional complaints or legal action, and more.

In the case of Wood v. SatCom Marketing, the employee, Wood, reported that certain important Human Resources files that were her responsibility to maintain were “in order” when in fact they were disorganized and outdated. When this was discovered, Wood was placed on a 30-day Performance Improvement Plan (PIP) by the head of the HR department. Instead of working to organize and update the files, though, Wood instead submitted a letter outlining various alleged violations of wage and hour laws by the company. She was fired, citing her failure to comply with the PIP.

She sued, claiming retaliation for having complained about the alleged wage and hour violations. On appeal, the Eighth Circuit Court of Appeals held that she had engaged in a “protected activity” when she filed her claims — but still ruled in favor of the employer. The court decided the employer had lawfully discharged her for legitimate, non-retaliatory reasons, namely, failure to perform the essential duties of her job and ignoring her supervisor’s instructions.

So it is possible to discipline an employee who has engaged in a “protected activity” — as long as they have done something that would generally lead to disciplinary action in the normal course of business. The keys to safe incident management are:

  • Scrupulously follow your normal disciplinary procedures. You don’t have to cut the employee any extra slack, but don’t jump ahead to more severe discipline than you would normally employ with any other employee.
  • Carefully document every step of the way, including the reasons for each action taken. This documentation can be important evidence in your favor, should the employee claim retaliation. (As an aside, it’s a really good idea to maintain this kind of detailed documentation in a disciplinary situation even if the employee has not engaged in a “protected activity.”)
  • Ensure all supervisors and managers are on the same page. You don’t want one supervisor to say an employee was disciplined for excessive tardiness while another testifies they were disciplined for poor performance. That could make your reasons appear to be “pretext” to cover up retaliation.

What if an employee claims retaliation?

If an employee tries to claim retaliation, first they must satisfy the three-prong test I mentioned above: that they engaged in a “protected activity,” that they suffered an “adverse employment action” and that there was a potentially causal relationship between the two things.

Once the employee has shown that there might be a relationship between the activity and the action, the burden of proof shifts to the employer. If you can demonstrate that there were legitimate, non-retaliatory reasons for the action taken, the courts may find in your favor, as they did in the case of Wood v. SatCom Marketing.

If, on the other hand, your documentation is sketchy or contradictory — or if you held the employee to a higher standard or treated them more harshly than you have done others who committed a similar infraction — it’s possible the court could find the reasons given were merely pretext to cover up retaliation.

So the best thing to do, of course, is don’t retaliate in the first place. Try the best you can to act as if there had been no complaint filed and treat the employee the same as any other employee. And, as always, consult with your employment law advisor before taking any action, to ensure you are complying with the law.

And if you’re looking for a good way to document your procedures and proactively take control of incident management, check out AcroTime Workforce Management’s Human Resources Tools module. These tools can help ensure consistency in both the application of your disciplinary practices and in your documentation of incidents.

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