Reducing Retaliation Claims Through Good Employment Practices Presented by UE in Partnership With CUPA-HR Jennifer Kirkland, Washington and Lee University Miriam McKendall, Holland & Knight Hillary Pettegrew, United Educators

Reducing Retaliation Claims Retaliation defined: Employee engages in legally “protected activity” Adverse action occurs Causal connection exists between protected activity and adverse action Employer can defend by showing legitimate reason for action Reducing Retaliation Claims

Common retaliation risks: Employee engages in adverse activity by… Complaining of discrimination/harassment or participating in investigation Requesting accommodation (ADA, religious) Taking protected leave (ADA, FMLA, state law) “Blowing whistle” (FCA, OSHA) Reducing Retaliation Claims

Why are retaliation claims difficult? Retaliation claim can go to jury even if “underlying” claim is thrown out Jurors understand retaliation as natural human reaction Legal developments make claims easier to bring Claims often very expensive Reducing Retaliation Claims

Reducing Retaliation Claims Trends in EEOC Charges Reducing Retaliation Claims

Trends in UE Discrimination Claims Reducing Retaliation Claims

Policies prohibiting retaliation Implement written policies that state retaliation is prohibited and commit institution to take corrective action if it occurs Disseminate policies to employees Train employees on policies Include “good faith” requirement Reducing Retaliation Claims

Educating employees on policies Explain policies to new employees during orientation Remind current employees of policies annually Discuss retaliation prohibition in “refresher” training for current employees Reducing Retaliation Claims

Reducing Retaliation Claims Questions and Answers Type question into box on lower left hand of your screen, OR Press star-one on your phone Reducing Retaliation Claims

Reducing Retaliation Claims Scenario: Christine has worked as a math department secretary for 15 years, consistently receiving “meets expectations” evaluations from several different department chairs, although other faculty have complained about her poor responsiveness and refusal to learn new technology. There is no written job description. Christine recently took FMLA leave to care for her seriously ill mother and returned to find she was reporting to a new department chair with whom she has never gotten along. Shortly after Christine came back to work, the new chair gave her an “unsatisfactory” performance evaluation and warned that she would be terminated without rapid improvement. Christine immediately complained to HR that the chair was retaliating against her for taking FMLA leave. Reducing Retaliation Claims

Educating Supervisors on Policy Review policy language and give concrete examples Emphasize liability for retaliation is possible regardless of original complaint’s validity Get “buy in” from the top – statement from president or provost makes expectations clear Reducing Retaliation Claims

Working with Faculty Supervisors Avoid using term “training” Respect their time Use case study approach and encourage debate Reducing Retaliation Claims

Educating Supervisors on Good Employment Management Emphasize proactivity – teach supervisors what they SHOULD do Improving supervisors’ job performance improves workplace for everyone, with fewer retaliation claims likely Requires getting supervisors to understand and follow basic rules of good management Reducing Retaliation Claims

Supervisors’ Clarity and Consistency Critical Be clear Explain all job performance and conduct expectations Refer to written job descriptions, employer policies Be consistent Treat all employees alike when evaluating performance Document ongoing performance feedback – negative and positive Reducing Retaliation Claims

Prior to Employee Discipline Before taking disciplinary action, supervisors should: Consider timing of action Anticipate employee’s viewpoint and response Review whether documentation supports the action Consult HR if questions are raised Reducing Retaliation Claims

Good Management Requires a Balance Supervisors need balance between letting small problems grow and documenting every trivial issue Avoid “building files” on problem employees vs. others Watch conduct of employee’s co-workers after complaint Reducing Retaliation Claims

Responding to Complaints: Tips for Supervisors Do not display negative reaction to employee Get HR involved and rely on them for help throughout process Do not take disciplinary action against complaining employee without prior approval Reducing Retaliation Claims

Responding to Complaints: Tips for Institutions Remind employee and supervisor of policy against retaliation Review with supervisor other “do’s” and “don’ts” Investigate complaint and document Follow up during and after investigation Clarify that normal performance and conduct expectations apply regardless of complaint Reducing Retaliation Claims

Are Interim Measures Needed? Consider interim measures during investigation Could include temporarily changing employee’s location, chain of command or evaluation process Suggest first seeking employee’s consent or consulting legal counsel Reducing Retaliation Claims

Reducing Retaliation Claims Questions and Answers Type question into box on lower left hand of your screen, OR Press star-one on your phone Reducing Retaliation Claims

Reducing Retaliation Claims