Podcast – 8th Most Serious Human Resources Mistake: Employer Retaliation
Consistently audit your human resources practices to ensure they are legal, non-discriminatory and up-to-date.
This podcast will focus on another key driver of business potential – your human resources plan. Steve Cesare is The Harvest Group’s point person to help companies improve their human resources programs. He is also writing a monthly series for Lawn & Landscape magazine identifying the “Top Ten Most Serious Human Resources Mistakes” that companies typically make.
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The Grow Show will highlight those topics each month as part of its continuing podcast series. Here is the “Eighth Most Serious Human Resources Mistake that companies make: Retaliation.”
Retaliation is the fastest growing type of employee lawsuit against their employers: Historically, the most popular types of lawsuits have been:
- Race discrimination
- Gender discrimination rooted primarily in sexual harassment claims
- Disability discrimination
Retaliation means what most of us understand retaliation to mean, with the twist that it has to occur in the work environment. In general, an employer may not fire, demote, harass or otherwise “retaliate” against an employee for filing a charge of discrimination, participating in a discrimination proceeding, or opposing any illegal employment practice (e.g., discrimination, safety violation, sexual harassment).
Here are some examples.
1) The owner of a landscape company fires a Foreman for filing a complaint with the Department of Labor because the Foreman was not paid for working overtime.
2) A Maintenance Branch Manager stops rotating his Irrigators as part of the “emergency call back procedures,” and forces a certain Irrigator to be “on-call” every night because the employer discovered that specific Irrigator filed a safety complaint with OSHA.
3) An Account Manager demotes a Foreman to Gardener because during a formal investigation, the Foreman told Human Resources he heard the Account Manager make a racist joke.
4) A Foreman gives a bad performance appraisal rating to a Laborer because that Laborer was off from work for several weeks due to Family Medical Leave.
5) An employer periodically makes sarcastic comments to a female Office Manager after the employer found out the Office Manager filed a pay discrimination claim with the EEOC.
Retaliation is formally established against an employer when three conditions are met:
1) An employee engaged in a protected activity that was in opposition to discrimination, or participated in a covered proceeding (i.e., an employee complaining that he was not paid for time that he worked “off the clock” even though his Account Manager told him to do so);
2) That employee then suffers an adverse employment action related to the protected activity (i.e., the employee gets demoted, harassed, or fired); and
3) A causal connection exists between the protected activity demonstrated by the employee and the adverse action taken by the company on the employee.
What are some of the costs that a landscape company would absorb if it ever got sued for retaliation? Common costs are:
- Paying back wages
- Reinstating the employee back into position if the employee was terminated or demoted
- Reimbursing the employee for attorney and expert witness fees
- Taking various other financial steps to provide necessary relief.
Best practices to help landscapers minimize the impact of retaliation on their businesses?
- Best in Class landscapers consistently audit all of their human resources practices to ensure they are legal, non-discriminatory, and up to date.
- Secondly, Best in Class companies take all claims of discrimination seriously and conduct prompt, thorough, and factual investigations. A key component of those investigations is a well-publicized policy ensuring all employees that they are protected against retaliation.
- Next, all disciplinary actions (e.g., demotion, transfer, termination) are systematically reviewed to ensure they are not simply adverse actions being taken against an employee who engaged in a protected activity.
- Fourth, Best in Class companies train all of their employees on illegal discrimination, proper investigation methods, and details associated with retaliation.
- Last, Best in Class companies have Employment Practices Liability Insurance to protect themselves against any financial loss incurred in litigating and settling various types of discrimination claims especially retaliation.
If you have any questions about employee retaliation or any human resources related question send an e-mail to Steve
