Because of new changes to the Fair Labor Standards Act (FLSA), retaliation cases can now include emotional distress damages. This could cost your company big bucks if there’s a large settlement—and defending a retaliation case can be tricky since jurors often feel compassion for the defendant during litigation.
That makes anti-retaliation training for your management team more important than ever. Retaliation cases often surprise employers, as supervisors and managers sometimes don’t realize they’re being perceived as retaliatory in the first place. So your business needs to be ready.
A typical example of perceived retaliation is the timing of a termination. It’s important to prove that the employee was terminated due to work-related performance, and not because of an issue that shouldn’t be grounds for termination, such as pregnancy or illness. Keeping detailed records and internal communications about the employee’s performance is critical for a good legal defense in these situations.
Of course, retaliation can also be deliberate—but it’s important to give supervisors training to avoid it no matter what. As part of anti-retaliation training for your company’s supervisors and managers, you should:
- Explain your company’s no-retaliation policy in detail to supervisors.
- Make sure your HR and legal departments keep thorough records of every action relevant to a retaliation case.
- Decide whether or not supervisors should be told about complaints. Informing supervisors can cause an employee who has filed a claim to be treated differently, which can be perceived as retaliation.
- In cases where there’s a resolved wage complaint, make sure everyone knows there was not a retaliation complaint and that they are welcome to come forward with concerns.
- Consider initiating an independent, unbiased investigation to evaluate any actions taken by the company against an employee who has submitted a claim. Don’t take action after reviewing the results of the investigation unless your company policy supports it.
If you believe a supervisor was retaliatory—whether on purpose or not—you will probably want to take disciplinary measures to avoid this behavior in the future. This could be in the form of written counseling, individual sessions in anti-retaliation training, or in the most extreme cases, termination.
If you’re facing a retaliation case and want to speak with an HR professional, we’d love to help. And be sure to let us know if we can help with any of your other HR needs.