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HR Support on Retaliation in the Workplace
Editor's Note: Enforce conduct rules to ensure a workplace free of retaliation.
Overview: When used in an employment context, the term retaliation refers to taking a vengeful, adverse action against an individual. Advanced levels of employee discipline, such as suspension and termination, may trigger retaliation claims. Employers should provide training to supervisors and managers to determine how to guard against employee retaliation, and how to minimize employer liability with respect to agency charges or court claims.
A number of federal and state laws and regulations contain antiretaliation provisions, which are among the most heavily mediated and litigated employee protections. In fact, the Equal Employment Opportunity Commission (EEOC) receives tens of thousands of retaliation-based complaints each year. Other major federal employment laws containing antiretaliation provisions include the Fair Labor Standards Act (FLSA), the Employee Retirement Income Security Act (ERISA) and the Family and Medical Leave Act (FMLA).
The Sarbanes-Oxley Act of 2002 (SOX), as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank), includes penalties for retaliating against whistleblowers. Although these particular statutes are primarily aimed at public companies, the antiretaliation provisions cover all employers.
Trends: Employers should be mindful that, in some instances, courts have found a mere verbal complaint to a supervisor to be sufficient to trigger a retaliation complaint - with any attendant costs, fines and penalties.
Author: Marta Moakley, JD, Legal Editor
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HR guidance on the legal risks of retaliation in the workplace.