As I recently wrote, EEOC retaliation claims are on the rise. In fact, through last year, they represented the most frequently filed type of charge alleging illegal conduct. The EEOC and the statutes it enforces are only one source for such claims. Across the federal spectrum, a range of other laws prohibit retaliation, as do many state, local, and other administrative protections. Many of these regulations have enforcement provisions that can lead to massive liability. The pattern is simple: Someone raises a complaint and then alleges they were subsequently punished, with the result being that they suffered harm, potentially serious matters were ignored, and others were dissuaded from coming forward in the future.
So here’s the question: To educate managers and employees about their various obligations, should employers provide detailed training regarding the terms of each of these laws and others? Many employers do just that. After all, ignorance of the law is no defense, and most organizations want to limit explosive, damaging claims. Here is a sampling of federal laws whose anti-retaliation provisions apply to many employers:
- Age Discrimination in Employment Act (ADEA)
- Americans with Disabilities Act (ADA)
- Civil Rights Act of 1871
- Civil Rights Act of 1964 (Title VII)
- Civil War Reconstruction Era Federal Civil Rights Statutes
- Clean Air Act
- Department of Energy Defense Activities Whistleblower Protection
- Employee Polygraph Protection Act
- Employee Retirement Income Security Act (ERISA)
- Equal Pay Act
- Fair Labor Standards Act (wage and hour, child labor, minimum wage, overtime)
- False Claims Act
- Family and Medical Leave Act (FMLA)
- Labor Management Relations Act
- National Labor Relations Act
- Occupational Safety and Health Act
- Rehabilitation Act
- Safe Drinking Water Act
- Sarbanes Oxley Act
- Toxic Substances Control Act
- Whistleblower Protection Act (federal government employees)
Or rather than teaching all of these laws, does it make more sense to communicate a simple anti-retaliation message (supported with clear, specific, and concise learning) and education on some particulars in areas of greatest risk? The message might be something like this:
“We want to find out about any issues that can harm our business, the public, or our employees. We need your help to fix problems, sooner rather than later. So here’s what we need from all of you, and here’s our promise: Bring us issues, no matter what they are, as long as you have reason to believe there’s a real problem we need to address. We will appreciate and look into your issues, and we won’t retaliate against people who do this. We have multiple places for you to let us know about problems, but what’s most important is that you know we are serious about this commitment. From time to time, we’ll provide you some additional information and training on a range of different topics, some of which relate to the law. But the key is we want to prevent, find out about, and fix problems. And we have to have your help. So please help us, our public, and your co-workers.”
Which do you think will help your organization find out about problems and prevent retaliation under all of the above laws and others? Repetition of this kind of message and some clear, simple instruction, or providing hours and hours of learning on the nuances of each law? For more ideas, check out ELI’s tips on how to prevent retaliation claims.
