As an employer, you know that policies and laws change constantly. You’re always on your toes when it comes to navigating the legal landscape. The Equal Employment Opportunity Commission rededicated its efforts toward enforcing retaliation claims and issued some guidance for employers.
“Forty-three percent of lawsuits have some retaliation component,” according to Brian Kaplan, partner with DLA Piper at an HR Breakfast Seminar for The GetFive. “With all of the changes recently made by the EEOC, there are so many more potential traps to fall into for retaliation purposes.”
3 types of retaliation cases
“In looking back at case files over the years, there are three categories of retaliation cases that come up a lot,” Kaplan says. These types of cases, according to Kaplan, are often without merit, and require extra focus from HR professionals to make sure they don’t land in lawsuits they could have prevented.
- The Chronic Complainer
“The first type of case stems from the employee who always complains about everything. And in particular, things that aren’t even unlawful or possibly aren’t even true,” Kaplan continues.
- The Strategic Complainer
“The Strategic Complainer is the person who complains only after they know they’re about to be fired or disciplined.”
- The Accidental Complainer
“This situation involves an unlucky coincidence. For example, it’s an employee about to be laid off or terminated who subsequently announces they’re pregnant or need to go out for medical leave.”
So, as HR professionals, how do you keep these cases from making their way to court? Especially with the EEOC’s recently changed aggressive view on the definition of retaliation, “it’s incredibly difficult to fight these claims in court,” Kaplan says, but he offers a glimmer of hope for HR professionals fighting these types of cases.
Best practices for employers
The EEOC’s 70-page document has an entire list of best practices, and a few stand out among the rest. When dealing with Chronic Complainers, Strategic Complainers and Accidental Complainers alike, here are some things HR professionals must do:
- Document everything
Keep documentation of every decision and activity, from performance reviews to emails and investigation notes. Documentation either wins or loses these types of cases.
- Investigate and provide appropriate feedback
Be careful not to discourage legitimate complaints about safety issues, harassment or other serious issues. Even if you think you might have a retaliation problem, you need to investigate and follow your policies.
- Don’t overreact
Even when you receive a strong complaint in retaliation, it’s important to remain calm. “You have to deal with the personal element and explain to your employees and managers why your organization has no retaliation policy,” says Kaplan.