In April 2022, the National Labor Relations Board filed a lawsuit against Starbucks, claiming three members of a union organizing committee experienced retaliation. Two employees were terminated, and one was placed on unpaid leave, the NLRB alleges.
For current and potential Starbucks employees, this news is disheartening, as they want and deserve a safe workplace. For employers, it’s a cautionary tale.
Workplace retaliation has many forms: it can be slight or serious, between coworkers or an employee and management.
It can look like an employee reporting their boss for harassment and later being passed over for a project. It can also look like an employee whistleblowing their organization’s fraudulent processes to a regulatory body and being terminated shortly afterward.
No matter what form workplace retaliation takes, it is unethical and, in many cases, unlawful. If you tolerate or even encourage retaliation in your organization, you’re showing employees and the public that you care more about your profits than providing a safe and supportive workplace.
In this guide, you’ll learn how workplace retaliation is defined, when it’s illegal, and how to prevent incidents of retaliation from poisoning your organization’s culture and reputation.
Retaliation can't exist in an ethical company.
In your code of ethics, state your zero-tolerance policy for retaliation to reassure employees and to hold your management accountable. Download our free code of ethics template to start writing yours.Get the Template
The first step to avoiding workplace retaliation is to establish robust ethical standards of conduct in your organization. In a workplace culture that prioritizes ethical behavior, retaliation should be rare.
Firstly, when you set an expectation of ethical conduct, retaliation can’t fly under the radar.
If upheld and enforced by management, employees will see ethics as part of their daily duties, making them less likely to engage in, and more likely to report, retaliation when they witness it. One bad employee (or manager) trying to get away with retaliation will stand out among an otherwise ethical organization.
In addition, in a safe, ethical work environment, you should have fewer incidents of harassment, discrimination, fraud, and unethical conduct. As a result, there should be fewer complaints and, hence, fewer instances where a bad actor could retaliate against their reporter.
“A speak-up culture is critical,” says ethics and compliance expert Joseph Agins. He explains that when executives promote reporting wrongdoing, it demonstrates “unwavering accountability,” showing employees that “when things go wrong, the executives take action, or they take responsibility” rather than retaliating.
While you might fear whistleblower reports, especially if they point to a member of the C-suite, they can actually signify a deeply ethical company culture. If employees are willing to speak up when they experience or witness misconduct, especially if they provide their name, it shows they don’t fear retaliation.
Whistleblower reports are also a great source of data when you’re assessing organizational risk. Managers and HR can’t be everywhere at once, so you might be unaware of workplace issues.
In fact, without whistleblowers, these problems could escalate into something devastating, such as a six-figure fraud scheme or reputation-damaging harassment scandal. Early detection not only saves your reputation, time, and money, but can improve your compliance, too.
FYI: If you want to uncover your areas of risk quickly and easily, try a case management system like i-Sight. With just a few clicks you can create graphs, charts, and heat maps showing the types or locations of incidents that are common in your organization. Learn more about the tool here.
Don't let fear or anger lead you down the path of retaliation.
In this webinar, you’ll learn common reasons that leadership retaliates against whistleblowers and how to avoid doing so if you’re faced with a whistleblower claim.Watch the Webinar
Not every instance of workplace retaliation involves terminating the employee. In fact, it doesn’t even always have to involve management. Retaliation can also occur between colleagues at similar levels and can be so subtle it goes unnoticed.
For example, say Carmen filed a complaint with HR about her coworker, Dean. Carmen claimed Dean sexually harassed her by telling her lewd jokes. When Dean learns he’s being investigated by HR, he figures out that it was Carmen who reported him.
To retaliate against her, Dean stops inviting Carmen to team happy hours and lunch outings. Carmen becomes socially isolated from her team, which negatively affects her mental health.
Here’s another example. Bruce and his direct manager Angela’s company prohibits gifts from potential vendors. However, Angela casually tells Bruce that she was treated to dinner by a company vying to work with theirs. Bruce reports Angela for this violation of policy and business ethics.
When Angela is questioned about the dinner, she knows it was Bruce who reported her, since she didn’t tell anyone else. After the incident, Angela stops giving Bruce exciting projects and overlooks him for a promotion he was suited for as retaliation for “ratting” on her.
Just because these versions of retaliation aren’t as serious as termination doesn’t mean you should ignore them. Gone unchecked, this behavior can escalate into something more sinister, like bullying, harassment, or discrimination.
“It starts off down here, some little incident, and the behavior gets more and more frequent and more and more aggressive,” explains strategic HR consultant Catherine Mattice.
If you permit retaliation, you’re inviting more serious incidents, as bad actors will think they can get away with it. Nip the issue in the bud (and avoid potential lawsuits and fines) by enforcing a zero-tolerance policy for retaliation.
It’s easier to prevent workplace retaliation than to deal with the aftermath. That’s why your organization needs strong policies that apply at the employee and management levels.
Strong policies hold upper management accountable so ethical behavior doesn’t slip. They also teach employees about behaviors that aren’t tolerated, since they honestly might not know the forms retaliation can take.
If your organization ends up facing a retaliation claim you don’t agree with, your policies can provide documentation for your case. Along with detailed records of actions taken, you can show that your company operated according to written standards the employee agreed to.
Start by writing an anti-harassment policy, which prohibits unwelcome behavior of a physical, sexual, verbal, or virtual manner. Explain that retaliation is a form of harassment and that it won’t be tolerated.
Next, create a clear process for employee discipline. In your code of conduct, outline types of behavior that are prohibited in your organization (or levels of misconduct) and potential consequences of each. Commit to consistent discipline for policy violations and avoiding retaliation as an organization.
Finally, require managers to follow set performance management procedures. Outline how they should evaluate their employees’ performances and how to decide on promotions. Suggestions for demotion or termination must come with extensive proof of an issue with the employee’s behavior or work.
This helps reduce the odds that a manager retaliates against an employee if they report them for an offense.
Remember: consistent enforcement of your policies is key. Don’t let retaliation slide because it came from the beloved CEO or a long-tenured employee.
When did you last update your company policies?
Your policies should reflect your organization’s values and guide employees. Make sure yours are up to date with your standards and industry best practices; download our free policies and procedures template to get started.Get the Template
In the United States, employees are protected from unsafe and unfair work environments by a number of laws. Familiarizing yourself with these laws, and how workplace retaliation fits into them, protects your employees as well as your organization.
The Fair Labor Standards Act (FLSA) established a minimum wage and the 40-hour work week, among other employee rights. Retaliation under this law would include placing negative consequences on an employee who questions their employer about these standards or even acts within their rights but inconveniences the employer by doing so.
Here are some examples of FLSA retaliation from the Department of Labor (DOL):
- Nelson, a restaurant employee contacts the DOL inquiring about overtime pay rights. He tells his coworkers what he’s learned. Overhearing staff talking about the phone call, Nelson’s boss terminates him. “In this scenario, terminating Nelson’s employment because he contacted [DOL] (or was suspected of contacting [DOL]) would be prohibited.”
- Aisha, a call center worker, uses her entire lunch break to pump breast milk, but needs extra time to finish up. “Her boss . . . tells her she cannot use any time beyond her meal break for ‘personal stuff.’ When Aisha asks if she has a right to take another break for pumping later in the day, her boss sends her home for the rest of her shift without pay. In this scenario, Aisha was sent home for attempting to exercise her rights under the FLSA.”
Under the Family and Medical Leave Act (FMLA), employers must provide their employees with job-protected leave for reasons such as birthing or adopting a child, dealing with a serious medical condition, or caring for a family member.
The DOL gives two examples of the retaliation under the FMLA:
- Jaime takes FMLA-approved leave to care for his daughter after surgery. His employer removes three “attendance points” from his record for these days, in a system where 10 lost points in a year could mean termination. “Under the FMLA’s anti-retaliation provisions, an employer may not use the taking of FMLA leave as a negative factor in employment actions and may not count FMLA leave days under no fault attendance policies.”
- Deborah takes FMLA-approved leave a few days a month to deal with debilitating migraines. Her employer then reduces her scheduled hours, saying they need a more reliable employee.
Another law employers might try to ignore is the National Labor Relations Act (NLRA). This law gives employees the right to organize (in a union or not) and negotiate with their employers for better working conditions. Retaliation under this law would take the form of negative consequences for employees trying to unionize, as in the Starbucks example above.
Equal Employment Opportunity Commission (EEOC) laws also protect workers’ rights, specifically against harassment and discrimination in the workplace. If an employer retaliates against an employee who filed an EEOC complaint under one of these laws, they could face a federal investigation, lawsuit, and/or fines.
Here are some EEOC laws to keep in mind:
- Title VII of the Civil Rights Act: prohibits employment discrimination based on protected classes (e.g. race, gender, religion, color, national origin, etc.)
- Americans with Disabilities Act (ADA): prohibits employment discrimination based on ability
- Age Discrimination in Employment Act (ADEA): prohibits employment discrimination for employees aged 40 or older
- Equal Pay Act (EPA): aims to eliminate compensation gaps between male and female workers (equal pay for equal work)
Learn the rights your employees have, incorporate them into your workplace, and don’t punish employees who exercise their rights under these laws. Avoiding retaliation is that simple.
Sometimes, retaliation goes undetected because it’s narrowly focused. It might happen only in one department, to employees of a certain race, or for a specific type of complaint.
First, conduct an assessment of your company culture to uncover your weak areas. This will help you identify problem departments or people and make sure you’re complying with employment laws and regulations.
A cultural assessment allows employees to “be candid and transparent about how they’re feeling,” says Mattice. “It measures a lot of different things. It’s focused on everybody’s story. And therefore, you can resolve lots of problems for lots of people” in one step.
To complete your cultural assessment, try one or more of these approaches:
- Employee survey: Ask employees to rate how well management and their coworkers adhere to internal policies and relevant laws. What are their concerns about the organization and suggestions for improvement?
- Committee-led evaluation: Form a small group made up of employees from different levels and departments that is also representative of your workforce in terms of race/gender/age/etc. They should analyze your current policies and procedures and share personal stories to identify areas to improve.
- External audit: Hire an external HR expert to audit your culture. Using methods such as employee interviews and policy review, they’ll tell you what you’re doing right and give you suggestions for change.
If you want to make your cultural assessment faster and easier, use case management software. Find a system like i-Sight with data analysis built right in. You’ll be able to graph trends in complaint and investigation data in just a few clicks. This makes it easy to see if retaliation occurs more often in certain office locations, after a specific type of complaint (i.e harassment), or to one group of employees (i.e new mothers).
After you’ve completed your cultural assessment, make changes based on your discoveries. Do you need to add a stronger “no retaliation” clause to your code of conduct? Do you need to investigate one department manager for retaliating against her employees?
Then, implement new training modules based on the changes you’ve made to your policies or procedures. Employees may have forgotten (or never even known) what workplace retaliation means and why it’s bad, so training is a great time to remind them.
Not sure where to start when assessing your risks?
Employees are your greatest resource for revealing problem areas and identifying ways to create a more ethical workplace. Download this free cultural assessment template to uncover the weak parts of your company culture.Get the Template
Retaliating against employees who report wrongdoing is unethical at best and illegal at worst.
Workplace retaliation might make the victim employee feel fearful, frustrated, and unheard. What’s worse, it “can result in Workplace Traumatic Stress (WTS), which causes Moral Injury (MI) to the whistleblower and can lead to post-traumatic stress disorder, depression, substance abuse and even suicide,” says Jackie Garrick, founder of Whistleblowers in America.
This is not only harmful to the complainant, but to your organization, as the stress will negatively affect their work and possibly the work of their team.
Both the target of the retaliation and other employees will no longer feel safe reporting misconduct. As a result, you’ll earn a reputation as an employer to avoid. Issues will likely also go unnoticed, putting you at risk of a major incident.
Keep workplace retaliation at bay by embracing strong policies and sound ethics, and both your employees and your organization’s bottom line will thrive.
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