Defining Workplace Retaliation – Ask #HR Bartender

wall sticker saying I know your sins implying workplace retaliation

Today’s reader note contains is a very spicy workplace story. But honestly, I don’t know that I want to address the salacious details. I do want to talk about workplace retaliation, which is what the reader wants to learn more about too.

My co-worker (we’ll call her Cathy) and our direct supervisor boss (we’ll call him Jim) are having a not-so-secret affair. Both of them are married with children. Cathy is a heavy drinker at company events and has told many people. They have very little shame about it either – sitting inappropriately close in meetings, extra flirty… you get the idea. Cathy gets VERY special treatment (i.e. not responsible for reaching weekly metrics like the rest of us are, given a raise for being a mentor but isn’t mentoring anyone, etc.).

Our handbook makes it clear this behavior is not tolerated and reporting it will not cause retaliation. Well, I reported this “anonymously” to HR. Two weeks later, Jim called a meeting to tell me what an awful job I’m doing without any metrics or examples to back it up. The meeting was very heated. How do I go about protecting myself from further retaliation? Should I get a lawyer?

To offer some insights about retaliation, I asked employment attorney Donna Ballman to share her expertise. She recently helped us with an article about searching for a job with non-compete agreements that you might want to check out. Donna’s work focuses on employee-side employment law issues, so whether you’re an employee or a human resources professional, these insights will prove to be valuable.

Please remember that Donna’s comments should not be construed as legal advice or as pertaining to any specific factual situations. If you have detailed questions, they should be addressed directly with your friendly neighborhood employment law and labor attorney.

Donna, many of us have heard of retaliation but maybe it would be helpful to start with a definition. What’s employee retaliation?

[Ballman] Retaliation is where an employer punishes employees or applicants for objecting to illegal discrimination or an illegal practice of the company. According to the Equal Employment Opportunity Commission (EEOC), retaliation is the most frequently alleged basis of discrimination. You are legally protected against retaliation under anti-discrimination laws if you do any of the following:

Whistleblower retaliation is similar, and there are many laws that protect whistleblowers. In general, you must have objected to or refused to participate in something illegal that the company is doing (and not a coworker or supervisor unless they’re doing it on behalf of the company). This could be failing to pay wages owed, violating OSHA regulations, engaging in consumer fraud, or a host of other legal violations.

 In the case of this reader’s note, it’s possible that this complaint is likely not legally protected against workplace retaliation. Reporting a violation of company fraternization policies or some other policy probably doesn’t make you a whistleblower since there’s no law against fraternization. And someone else having an office affair, no matter how openly, probably doesn’t rise to the level of sexual harassment. If you reported that your boss was sexually harassing a coworker, that’s different. In this case, it sounds like a consensual affair that may only violate company policies.

I usually recommend reporting things in a way that’s legally protected, and letting other stuff go. So, report discrimination, sexual harassment, unpaid wages, Occupational Safety and Health Administration (OSHA) violations, other legal violations and do it in writing so you have proof. But other complaints about your boss where you aren’t legally protected against workplace retaliation, I generally suggest letting go.

When an employee reports questionable or inappropriate behavior to human resources, what should they expect in terms of HR conducting an investigation? Meaning should the employee expect HR to tell them what they plan to do?

[Ballman] HR usually isn’t going to tell you what they did to investigate and if or what discipline issued. They don’t have to tell, and there are confidentiality issues for the other employees, so the most you might get is a terse, ‘Thank you for sharing your concerns. We investigated the matter and took appropriate action.’

This reader says that they told HR “anonymously” about their boss’ behavior. Should employees expect their concerns to remain anonymous? Why or why not?

[Ballman] Frequently, I see cases where HR either 1) shares the name of the person who made an anonymous or confidential complaint, or 2) the employee who was reported can guess. That being said, sometimes people guess wrong and retaliate against the wrong person.

If you’re planning to file a report, I would always assume that you can be found out.

Obviously, being told that your performance is awful without backup is upsetting. What are a couple of tips that employees should keep in mind during a meeting like this (so it doesn’t get heated)?

[Ballman] During the meeting, don’t yell, walk out, slam doors, throw stuff (things I didn’t think I needed to say but apparently do), or give the organization any excuse to claim misconduct or insubordination. I usually suggest taking good notes at such a meeting and not responding off the cuff. Get copies of any write-ups. Don’t refuse to sign saying you received it. That doesn’t make it go away. Only refuse to sign if it says above the signature line that you are agreeing with the discipline, which is rare. When in doubt, sign with a note “as to receipt, rebuttal to follow.”

After the meeting and when you’re calmer, respond in writing and provide any supporting documentation showing that the write-up is incorrect. If others have done the same thing that you’re accused of (and were not disciplined), then think about whether you’re being singled out due to race, age, sex, national origin, disability, pregnancy, or other protected category, and put that in your response. Keep it calm and professional: no all caps, no emotional outbursts, and no threats.

If an employee has a meeting with their boss and they feel the boss is being unreasonable (for whatever the reason), should they go back to HR? Why or why not?

[Ballman] If you think the boss is singling you out due to race, age, sex, etc. or if you think you’re being retaliated against for objecting to or refusing to participate in something illegal like discrimination or not paying wages, then definitely report this in writing to HR. Otherwise, the calm written rebuttal I discuss above should go to HR and your boss to be attached to any write up.

Finally, at what point should an employee say to themselves, “I’ve had enough. Time to lawyer up.”?

[Ballman] If you think you’re being singled out due to race, age, sex or national origin, start writing down the ways you believe you’ve been treated differently. If you are objecting to or refusing to participate in something illegal, make sure you document it.

A discrimination or whistleblower claim might give you leverage to negotiate a better severance package. If you think that is what is happening, it might be a good time to have a strategy session with an employee-side employment lawyer about how to document your case.

My thanks to Donna for sharing her knowledge with us on the tricky topic of workplace retaliation. Please be sure to check out her blog, Screw You Guys, I’m Going Home. It’s consistently named one of the American Bar Association’s 100 best legal blogs. And she’s the author of the award-winning book, “Stand Up for Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards.”

Workplace retaliation is serious. Perceptions of retaliatory action can damage credibility, destroy employee morale, and have a negative impact on workplace productivity. Organizations need to make sure that supervisors and managers clearly understand the company’s zero-tolerance for this type of behavior.

Image captured by Sharlyn Lauby after speaking at the Flora Icelandic HR Management Conference in Reykjavik, Iceland

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