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Preventing, Protecting Against Retaliation Requires a Tricky Balance

Salt Lake City—The new overtime rules set to go into action in December have caused no small amount of uncertainty for employees and companies alike. But wrapped up with questions about hourly versus salaried wages, the scope, though not the elements, of what constitutes retaliation in the workplace has also been broadened.

The broadening of the retaliation laws, as well as the overtime law and several other mandates that have recently come out of the nation’s capital, make education vital to keep employers from making potentially costly mistakes, said Bryan Benard, partner and firmwide labor and employment practice group leader at Holland & Hart, at a briefing of employment laws Wednesday.

Over the last several years, retaliation has been the No. 1 complaint—and by a large margin compared to allegations of discrimination based on race, sex, age or disability—in employment lawsuits, he said.

“These are really big issues,” Benard said. “We’re seeing all these new rules. We’re seeing all these new guidelines come out.”

Retaliation occurs if an employee engages in a protected activity, such as opposing harassment or discrimination or making a complaint to the company about potential unlawful conduct, and afterward is fired, disciplined, transferred, demoted or receives a low employee evaluation, he said—effectively, any kind of reaction or behavior that would make an employee think twice before coming forward with concerns or complaints.

A person only has to have a reasonable belief that they are the victim of retaliation, making it especially important for employers to tread lightly in cases where someone could feel they are possibly being retaliated against, he said, noting that in 20 years of practicing law, he has seen only one case where the petitioner was ruled to not have a reasonable belief of retaliation.

Ironically, if someone believes they have been a victim of retaliation where there hasn’t been any but his or her supervisor or other employees give him or her the cold shoulder in an attempt to not “get mixed up” in that employee’s complaint, that treatment could also be considered retaliation, Benard said. For this reason, communicating the law and the various definitions of retaliation to supervisors is crucial for keeping the company from treading into hot water, he said.

“Managing this is so crucial for you who manage human resources issues,” Benard said.

When someone has made a complaint for whatever reason, Benard said, extra care should be taken to ensure nothing that resembles retaliation occurs within the office structure at any level while the investigation or suit around the issue is pending. This means if that employee is disciplined for being late or another common issue, he said, management should ensure that others are being disciplined similarly and the policy is being unilaterally applied. Likewise, a company cannot start monitoring that employee via security camera, an eagle-eyed supervisor or other means unless that surveillance preceded the complaint or is being applied to the rest of the workforce in the same manner.

“If it’s unique, if it’s something different, it’s going to be tough to say it’s not retaliation,” he said.

Suspicious timing is one of the biggest issues with retaliation, Benard said. If an employee makes a complaint and a day or a week or even a month later is fired, for example, he said, it’s difficult to argue against there being a connection between the two events. Similarly, if an employee is disciplined for a persisting issue but no mention was made of the problem before he or she made the complaint, Benard said, that, too, can be viewed as retaliation. If an employee has made a complaint and then done something that would merit discipline under ordinary circumstances, Benard recommended discussing the situation with an employment attorney to devise a plan for discipline that can’t be construed as retaliation.

Retaliation cases aren’t always brought by employees who have made a complaint or otherwise expressed a potentially unpopular opinion in the workplace, he said. Sometimes, employers terminating employees for performance problems and who gloss over their reasons for firing him or her can also find themselves on the respondent end of a retaliation suit, Benard said, as the employee tries to think of reasons why he or she must have been fired and concludes they must have rocked the boat without meaning to. In these cases, employers revealing the real reason for the termination in legal hearings can damage their credibility by providing a different reason than the one initially given to the employee, he said.

For this reason, he said, employers should be concise but clear when terminating an employee, even when those conversations can be difficult to have.

“It’s always better, in my view, to sit the person down and say, ‘There have been some performance concerns and we’ve made the decision [to terminate you],’” he said. “Then you’ve set yourself up to be able to say, six months down the road, we told him there were performance issues and here’s why we fired him [if the employee files a lawsuit].”

Whether a company is consciously retaliating or not, or even whether every member of the management structure had knowledge of the complaint and retaliation, means little to a jury trial, Benard warned.

“They say the No. 1 thing juries focus on is whether the employee was treated fairly. Every juror has been an employee. That makes it hard,” he said. “That means they come with a whole host of baggage and experience, both good and bad.”