Legal and HR experts discuss how retaliation claims happen and what employers can do to protect themselves and their employees.
REPORT FROM THE U.S.—An employer facing an employee retaliation complaint has a two-fold problem: the complaint itself and the initial problem which the employee claims resulted in retaliation.
Federal laws protect employees from workplace discrimination for making complaints or taking part in other protected activities. With so many federal statutes and different enforcement agencies, it can be difficult for hoteliers to navigate them all, but understanding what the laws are and how they work can help hoteliers avoid retaliation complaints in the first place.
What retaliation means
In a webinar hosted by law firm Conn Maciel Carey titled “Addressing employee complaints: Whistleblower claims & OSHA notices of hazards,” Kara Maciel, founding partner of the firm, said the U.S. Equal Employment Opportunity Commission is the primary government agency that enforces the anti-retaliation provisions under Title VII, the Equal Pay Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act and the Genetic Information Non-Discrimination Act. The EEOC will look at the underlying charge and also the retaliation angle to each of those laws, she said.
The EEOC most often hears retaliation claims regarding discrimination that falls under Title VII, she said. The retaliation provision under Title VII states employers cannot discriminate against an employee for making charges, testifying or participating in enforcement proceedings. That means employers can’t terminate an employee, choose not to hire an applicant or otherwise take action against an employee because he or she opposed an unlawful action under Title VII or participated in enforcement procedures, Maciel said.
“Most of the retaliation claims come in under the opposition clause,” she said. “It’s when someone has brought a complaint to HR and raised an issue of discrimination. That underlying charge is investigated or resolved, and then two weeks later or three weeks later, that employee gets a legitimate performance problem, criticism and written warning. The individual thinks it’s not because of poor performance; it’s more related to my previous complaint to HR.”
The Occupational Health and Safety Administration oversees 22 different whistleblower laws, said Amanda Strainis-Walker, a partner with the firm. Most of the whistleblower complaints come under section 11(c), which is when an employee alleges discrimination—such as termination, reduced hours or a missed bonus—for filing a complaint or participating in an OSHA investigation, she said.
The number of retaliation complaints under Title VII filed by employees against their employers has increased by 10% in the few years since the online filing system became active in late 2014, said Daniel Deacon, an associate at the firm. He called it a “substantial increase,” adding that prior to 2014, the number of complaints remained relatively stagnant at about 1,700 per year.
About 20 years ago, the Title VII retaliation complaints made up 22.6% of retaliation claims handled by the EEOC, he said. That number has since increased to 45%.
Despite the large amount of whistleblower claims under section 11(c), 74% of them are withdrawn or dismissed, Deacon said. Less than 2% of the claims receive a merit determination, as most others that aren’t dismissed or withdrawn are settled.
Training, policies and procedures
Managers and supervisors must receive training on retaliation and how to protect employees, Strainis-Walker said. Management should be informed that there are certain activities that are prohibited and which actions are considered adverse, she said.
First off, managers need to know how to respond to complaints, no matter the circumstance, she said. They need to be aware of the perception of retaliation in relation to the timing of an employee filing a complaint. For example, if an employee who has filed a complaint sees his or her overtime substantially reduced the next day, there may be a perception of retaliation.
Managers need to effectively communicate any adverse employment actions, Strainis-Walker said, and they need to document legitimate responses to employee conduct. When documenting, it’s important to explain the decision-making process, how that fits with the company’s policies and how the employee did not follow them.
“Make sure there’s documentation to show the adverse action was taken pursuant to the policy; other employees have encountered the same adverse action for breaking the rules,” she said. “Basically the more documentation you have backing up the decision as a legitimate one, it betters your chances to not face a charge in regard to a whistleblower claim.”
It’s also key to have a system for anonymous complaints, Strainis-Walker said, because it’s better for the employer to hear about a hazard before OSHA receives a complaint. Managers should talk to employees and keep records of employee interviews, she added.
Upon being hired or promoted, managers at LBA Hospitality go through in-depth training with HR to cover harassment, how and when to use coaching and progressive discipline and documentation training, said Marsha Lacey, director of human resources at LBA. Refresher training is offered on an annual basis, she added.
“We also train on conflict resolution and how to handle (Family Medical Leave Act)/ADA requests,” she said. “Most training is done in smaller settings and is scenario-based and interactive. Our focus is one that stresses that listening and addressing issues early on with associates helps to resolve issues in a positive way so that they do not escalate or become claims later.”
Culture absolutely plays a part, Lacey said. It’s important that the message is delivered from the top down, and there is support from leadership for ongoing training.
“There should also be a clear message that associates matter, and that any complaints/concerns are taken seriously and addressed in a timely manner,” she said. “The training for our managers also reinforces this so that they can in turn train their associates in a way that everyone knows that if something happens, they can speak up without fear of retaliation.”
Employers in the hotel industry need to have a vision of what they want the workplace to look like, said Chuck Conine, founder of Hospitality HR Solutions. Senior management should see and agree on what the workplace environment should be when at its best, he said, but that also requires knowing how to get there.
“Create an environment so important you don’t want to hire anybody who could potentially negatively impact that environment,” he said.
It starts with hiring the right people, Conine said, which means checking applicants’ references, making sure their personalities are compatible with the environment and that they have the necessary skills, a strong sense of their duties and responsibilities and the right temperament to support the brand promise.
“When you do that, the side benefit is you are hiring someone who is mature, level-headed and most likely well-rounded,” he said.
New hires must be trained to support the vision, Conine said. He suggests holding roundtables with the employees along with senior manager, the line supervisor, the dining room manager for the food-and-beverage outlet in the hotel and an HR rep, who can speak about what the working environment means to them and why they support it.
“This kind of indoctrination for new employees is invaluable,” he said. “It tells new employees, ‘Hey, this place has got its act together.’ It promotes the view there is one team, that the team is working together to create and support an environment free of any type of inappropriate conduct. In appropriate conduct is the genesis of many, many retaliation claims.”
The point is to make certain employees feel safe to report conduct they believe violates this brand promise made to the new team members, he said.
For an HR director at a single hotel, the word retaliation is a major deal, Conine said. The HR department has the task of investigating the retaliation claim as well as what prompted it. The training and experience of the HR team is focused on providing an investigation that covers all important points and maintains and preserves evidence, he said.
A properly hired and trained employee that is participating in the environment will feel comfortable at work, Conine said. If something goes wrong and there’s a complaint filed, he said, everyone is usually willing to participate.
“Their whole motivation is to get … back to the kind of environment they like, which is why they’re working there,” he said.