Retaliation is among the most frequently alleged legal violation facing employers today. According to the Equal Employment Opportunity Commission (EEOC), unlawful retaliation is the most common charge filed nationwide. An employee can have a valid retaliation claim even if the original complaint — about discrimination, harassment or another violation — has no merit. Unfortunately, employers often fail to take positive steps after retaliation claims, or they take actions that make matters worse.

Under federal laws such as Title VII, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA) and the Family and Medical Leave Act (FMLA), employers may not take adverse action against employees who engage in protected activities, such as complaining of discrimination or harassment, participating in an investigation or requesting accommodations or protected leave. State statutes, notably California’s Fair Employment and Housing Act (FEHA), protect an even wider array of conduct, extending to internal complaints, wage and hour concerns and allegations of legal violations.

As for what constitutes an “adverse action,” the federal standard covers any conduct likely to dissuade a reasonable employee from engaging in protected activity. The California standard is broader, reaching any action that materially affects terms, conditions or privileges of employment. Examples are altered work schedules, exclusion from important meetings and negative performance reviews.

After a retaliation complaint, employers can make crucial mistakes, such as: 

  • communicating inadequately or poorly with the employee in question

  • allowing an accused supervisor to maintain control over the employee

  • changing job duties without documentation

  • failing to distinguish performance management from the protected activity

  • neglecting to document legitimate business reasons for company actions

To reduce risk of retaliation claims, employers should respond immediately and professionally. They should acknowledge the complaint, assess if interim measures (such as changing reporting structures) are needed and reinforce non-retaliation expectations with managers. They should also meticulously document all steps and consult counsel who can ensure alignment with both federal and state law.

When addressing performance issues, employers should maintain documentation predating any protected activity, apply policies consistently and separate the performance process from any complaint. The should also ensure compliance with FEHA’s interactive process for accommodations.

Outside investigators should be brought in when the allegations involve supervisors or HR, when credibility is a key issue or when a neutral investigation record is needed for litigation. FEHA requires that investigations be prompt, thorough and impartial. Professional neutrality is often indispensable.

Retaliation claims can be assuaged through proactive, well-planned practices. Early guidance from a labor and employment attorney can help you navigate federal and state law mandates effectively. 

Garcia & Gurney A Law Corporation ALC in Pleasanton, California guides employers throughout Alameda and Contra Costa counties in all aspects of federal and state legal compliance, including implementation of effective workplace policies. Call 925-468-0400 or contact us online to schedule a consultation.