It’s always been easier for lawyers to prove retaliation in the workplace than harassment, discrimination, or even wrongful termination.
With so many people now out of work, it’s natural that retaliation claims against employers is now on the rise – 23% this year over last.
The classic example of retaliation comes from an employee who did the right thing – a whistleblower notification, a complaint against a supervisor or fellow employee – and that was terminated, transferred or had other repercussions from their employer.
A good article on this trend is from the Wall Street Journal.
In its 6th annual survey, the security firm Proofpoint reveals some new information regarding social media and e-mails by employees – and it’s almost always resulting in bad news for the employees:
- 43 percent of US companies surveyed have investigated an email-based leak of confidential or proprietary information in the past 12 months. Nearly a third of them, 31 percent, terminated an employee for violating email policies in the same period (up from 26percent in 2008).
- US companies are also experiencing more exposure incidents involving sites like Facebook and LinkedIn as compared to 2008 (17 percent versus 12 percent). US companies are taking a much more forceful approach with offending employees — eight percent reported terminating an employee for such a violation as compared to only four percent in 2008.
- Even short message services like SMS texts and Twitter pose a risk. 13 percent of US companies investigated an exposure event involving mobile or Web-based short message services in the past 12 months.
Read the entire survey here.
One of the most difficult things we must determine in conducting a workplace investigation is, ‘who’s lying and who’s telling the truth?’
In interviews, I always have an associate taking notes and acting as another observer.
In one investigation last year, I was interviewing an employee who accused another of sexual harassment. Significant harassment. After the interview, I told my associate that the accuser was in my opinion, completely empathetic and totally believable. My associate looked at me and said, “Are you crazy? She’s lying through her teeth!”
As it turned out, my associate was right. (It’s always good to have a female associate present when conducting an interview of a female – they can always tell!)
He said/she said scenarios are very difficult. The most an investigator can do is assess both sides and write up a report without a recommendation but with a slant on what we believe.
Louis DiLorenzo of Bond, Schoeneck & King, PLLC has written an article in Business Management Daily with which I completely agree – regardless of the obstacle of he said/she said, the investigation must go on.
There are a number of missteps an employer can make when faced with an employee accused of harassment or discrimination.
But the easiest mistake to avoid is often the first decision an employer makes – to ignore that accusation.
Employers are mandated to take “prompt corrective action”. In most cases, that means conducting an independent, unbiased workplace investigation; consulting with a labor attorney; avoiding retaliation; and taking appropriate action against the accused.
These steps are appropriate and necessary for all businesses. I’m constantly amazed, however, how large corporations replete with well-staffed human resources employees get accused in this area.
Case in point: The Cheesecake Factory, which was recently sued by the EEOC for failing to respond to accusations of same-sex sexual harassment.
The case is documented by Melissa Fleischer, Esq. in the Employment Law Information Network blog.
In 1997, retaliation claims comprised about 23% of all cases filed with the EEOC. Last year, that number jumped to 32.3%.
Why the increase?
For one, employment attorneys advise that it’s much easier to prove retaliation than the underlying cause (say, sexual harassment). While harassment may often boil down to ‘he said, she said’, retaliation is often black-and-white.
I’ve conducted workplace investigations where we were convinced there was no harassment, only to find out an employer retaliated against that same employee. In other instances, I’ve seen an employee’s attorney not contest the harassment only to focus on the retaliation.
Robin Shea, writing in Costangy, Brooks & Smith’s corporate newsletter, does an excellent job of summarizing the issues with retaliation.
When faced with an employee issue – whether an allegation of harassment, a general complaint, or a potential for trouble – the first thing to do is conduct a workplace investigation – pronto.
An independent investigation can alleviate much of the power of a lawsuit, because it shows that steps were taken to solve the issue in a deliberate and professional manner.
Howard University’s hospital was recently the beneficiary of conducting an investigation. An independent review undertaken by the Hospital’s senior officials satisfied the U.S. Appeals Court that the Hospital’s decision to suspend an employee was free from any influence by her supervisor and the court reversed a jury’s determination.
The case – Furline v. Morrison – is summarized very well by Karen Gieselman of Fisher & Phillips.