Five Steps Virginia Employers Should Take to Help Avoid Whistleblower or Retaliation Claims

This article, written by Gentry Locke Partner Todd Leeson, was published in “Virginia Human Resources Today” magazine (Winter/Spring 2004). Read the formatted PDF. Todd will also be presenting on hot topics in employment law, and on recent trends at the NLRB at Gentry Locke’s 2014 Labor & Employment Law Symposium.

Employees are filing record numbers of retaliation and whistleblower claims. This short article provides some recommendations to employers to minimize their legal risks. First, here are some facts.

• For the fourth consecutive year, retaliation claims are the leading category of charges filed with the Equal Employment Opportunity Commission (EEOC). In other words, there are more retaliation charges than race or sex discrimination charges. In 2012 alone, retaliation claims comprised over 38% of all charges filed with the EEOC.
• Dozens of additional federal laws also protect workers against retaliation for complaining about alleged unlawful practices or conduct. The Department of Labor, primarily through OSHA, has helpful guidance on its website as to the various laws and rights. www.whistleblowers.gov.
• Recently enacted federal laws such as Sarbanes-Oxley, as well as the Affordable Care Act, also contain whistleblower protections. The government has made it a priority to protect “whistleblowers” from retaliation by their employers.

So, what should employers do to minimize their legal risks? Here are five suggestions.

1. Publish a Robust Retaliation Policy. I recommend that you have a separate, stand-alone policy that sets forth the company’s commitment that it will not take any adverse action against any person because that person engaged in conduct protected under the law. The policy should also assure employees that they can lodge complaints about purported unlawful activity, or provide information as part of an investigation, without fear of any retaliation. Any employee who believes he/she has experienced retaliation must promptly inform management or human resources of the concern so that the company can investigate it. The company will take corrective action if it determines that there has been a violation of company policy.
2. Train Management. Having a solid policy and complaint process is not enough. You must train management to understand the policy and to comply with it.
3. Don’t Retaliate! How would one of your managers react if he was accused of violating the law? Moreover, what if the employee who lodged the complaint had performance problems and the manager denied any improper conduct? This is where HR professionals need to exercise dispassionate oversight and good judgment. Companies can and should take appropriate corrective action against persons who violate company policy, even if the person previously engaged in protected activity. Make sure, however, the company can justify its decision for a legitimate, non-retaliatory reason. Ask yourself: Why is the manager asking HR to terminate this employee today?
4. Insulate the Decision Maker. Assume that an employee who had previously engaged in “protected activity” is subsequently alleged to have engaged in conduct in violation of company policy. If possible, empower the person who will investigate and/or decide whether to take adverse action against the employee to make an independent investigation. Similarly, if feasible, insulate the decision maker from knowledge that the employee had previously engaged in protected activity.
5. Follow Up. If an employee has engaged in protected activity (i.e., lodged a complaint about purported unlawful conduct), human resources should regularly follow-up with that employee, and then memorialize the facts. (“On [date], I met with Mary to ask her if she was experiencing any further problems or had any concerns. She responded no. I reminded her that she should come see me or contact anyone else in HR immediately if she had any questions or concerns. She said that she understood.”)

Want additional advice? I will be presenting a strategic session on this topic at the 2014 Virginia State SHRM Conference in April at The Homestead. I hope to see you there.