To Keep Your Managers from Retaliating They Need to Know What that Means

retaliation, terminationEvan Pontz, who writes for Troutman Sander’s HR Matters, wrote a great piece called How Not to Retaliate. He gives four very sound pieces of advice :

  • Enforce a non-discrimination and non-retaliation policy
  • Educate on what is “protected activity” and what are “adverse job actions.” 
  • Investigate carefully and thoroughly.
  • Act consistently and fairly, and document what occurs.

The part I wanted to focus on is the second piece. It makes the point that to keep your managers from retaliating they need to know what that means.
When you tell managers that they cannot retaliate because someone has reported sexual harassment, or wage violations, or discrimination or made some other accusation about the manager’s behavior they will probably understand that they are not supposed to fire the person. They may not be happy about it but at least they understand it. What they will not understand often is the myriad of other actions that could be potentially seen as retaliation. These include, but are not limited to: reassignment, changes of territory, poor performance reviews, changes of location, changes of working hours, changes in assignments, changes in working partners, denial of promotions or any other alteration of the working conditions of the employee. Despite the fact that many of these may be justified by business conditions they may be perceived as retaliatory, thus bringing a complaint. And the time frame does not necessarily have to be a close one.
So it is HR’s role to make managers understand that their actions may continue to get the company in hot water. In my opinion it is also HR’s role to monitor the continued interaction of a manager and an employee who could be retaliated against. You should also remember that there need not be an immediacy of action in retaliation. That performance evaluation that occurs at the end of the year, that promotion that might be given two years later, that layoff that has to occur in six months can all be seen as fodder for a retaliation claim.
Documentation of the business necessity of any action and the justification for that reason based on appropriate metrics will provide you some protection for a retaliation claim, but only if you do them.
Thanks to Jon Hyman for the referral to this topic.

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