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Creating and enforcing your company’s non-retaliation policy

Creating and enforcing your company’s non-retaliation policy

You’ve taken extra care to ensure your company has strict policies against discrimination, harassment, and the like. But your responsibilities don’t end there — you also need to protect employees who report suspected misconduct. That’s why it’s important to have and enforce a non-retaliation policy.

But what should your policy include? Whom does it protect? And how can you help enforce it? The following is an overview for getting started.

Why is a non-retaliation policy important?

Having a policy against retaliation is vital to ensuring that employees feel safe coming forward about violations of the law, regulations, or company policy. Any company who wants to protect its reputation as an ethical employer should have one in place. Additionally, retaliation for protected activities like reporting discrimination is illegal and violates many state and federal laws. So, employers looking to avoid expensive lawsuits would be wise to strictly enforce their rules regarding non-retaliation.

What is retaliation?

Workplace retaliation includes negative actions taken against an employee who inquired about, reported, or participated in investigations concerning misconduct such as discrimination, harassment, safety violations, and fraud. Whether an action amounts to retaliation depends on the facts and circumstances of each case, but may include:

  • Threats of retaliation
  • Reduction in pay or position
  • Negative evaluations or reviews
  • Changes in assignment or working conditions
  • Defamation
  • Refusal to hire
  • Suspension
  • Termination or reduction of benefits

The underlying idea is that retaliation is anything that would deter a reasonable person from engaging in protected activity, like reporting abuse or discrimination, or refusing to participate in illegal or unethical behavior.

Who’s covered by a non-retaliation policy?

Obviously, a current employee who reports or refuses to participate in wrongful conduct is covered by the policy, however a legally compliant policy will also include former employees and even job applicants. Certain laws also include others involved in the process. For example, someone who merely participates in a sexual harassment investigation is covered by non-retaliation laws. Additionally, a family member would be covered if, for instance, the company canceled a contract with them.

Anti-retaliation laws and policies apply to both official and unofficial reports, so even an informal complaint or inquiry should be considered protected activity. Additionally, protections against retaliation should be enforced whether or not the accusations are true. You can be liable for retaliation even if the report turns out to be baseless.

Whistleblower retaliation

It’s important to note that there are many state and federal laws that specifically protect whistleblowers. These cover employees who report violations internally, to a superior, and externally, to an entity like a government agency. For example, the Sarbanes-Oxley Act protects whistleblowers regarding complaints of fraud and other financial misconduct. Similarly, other laws protect those who report environmental harm, wage and hour laws, or violations of the Family Medical Leave Act.

Can you discipline a complaining employee?

The short answer is yes. An employee involved in a report or investigation can still be disciplined for poor work performance, violating company policy, and the like. However, to avoid any hint that the action is motivated by retaliation, employers should be extremely careful. Document how and why any actions are taken, and ensure that company policies are followed to the letter, using standard operating procedures. Lastly, always consult with an attorney, whether you’re in the process of creating your non-retaliation policy, handling a complaint, or figuring out how to discipline an employee who’s already filed a report.

Additional steps to avoid workplace retaliation

Including a policy against retaliation in your employee handbook is great, but it’s probably not enough. To help ensure that everyone understands and follows the policy, make an extra effort to educate supervisors, managers, and executives. Explain what type of conduct is prohibited (discrimination, harassment, fraud, etc.), and all the different forms retaliation can take. Be clear that the company takes retaliation seriously, and that individuals found guilty of retaliating will face disciplinary action that could include termination.

Additionally, make sure employees are aware of these policies. Include instructions for reporting suspected retaliation, whether they are reported to a manager, HR, and/or a government agency. And remember, this type of policy requires modeling from the top down. If executives and department heads don’t take this policy seriously, employees won’t either — a lesson learned the hard way by companies like Google.

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Legal Disclaimer: None of the information provided herein constitutes legal advice on behalf of Monster.