• Skip to main content
  • Skip to primary sidebar
  • Skip to footer
  • File a Report
  • Check Report
  • Client Login

Red Flag Reporting

Protecting Organizations & Their People

  • Home
  • About RFR
    • Our Team and Expertise
    • Who Do We Help?
    • Published Articles
  • Services
    • Hotline Service
    • Compliance Services
  • Benefits
    • Protect Employees
    • Protect Your Reputation
    • Protect Your Bottom Line
    • Manage Cases with Ease
  • Blog
  • Get Started
    • FAQ
    • Request a Demo or Quote
  • Contact Us

September 19, 2016

Minimizing the Risk of Retaliation Claims

Share on LinkedIn Share
Share on Facebook Share
Share on TwitterTweet

How is an employer to discipline an employee for misconduct when that same employee has filed harassment or discrimination complaint without risking a retaliation claim?  I recently read an article by Allen Smith in Society for Human Resource Management that explores this common struggle.  Here is a summary of what I learned:

A decision-maker, such as an HR professional, who is unaware of a complaint is best suited to investigate any misconduct before management disciplines for misconduct.  This reduces the risk of a retaliation claim according to Daniel Kaufmann, an attorney with Chicago’s Michael Best & Friedrich.  Per Kaufmann, the advantage is the company can honestly say the decision-maker reviewing the misconduct was unaware of the claim if discipline is brought.  According the Equal Employment Opportunity Commission (EEOC) in its August 29, 2016 Guidance, retaliation can’t be shown without establishing that someone was aware of protected complaint activity.

How can an employer negate retaliation claims?  According the Guidance from the EEOC, some of the ways include establishing that other applicants or employees who did not file complaints were treated similarly, or if despite the existence of a possible retaliatory motive, adverse action still occurred.

The EEOC also notes employers can minimize being accused of retaliation by adopting plain-language policies prohibiting retaliation, documenting employment actions, and training staff to identify and stop retaliation.

Attorney Angela Cummings with FordHarrison in Charlotte, NC shared HR investigators can be seen as more neutral than a supervisor from the same department as a complaining employee accused of misconduct.   HR professionals are often well-versed in conducting thorough investigations.  Occasionally, when HR is unable to investigate, a manager can be enlisted provided they are not the complaining employee’s manager.

Bill Nolan, an attorney with Barnes & Thornburg in Columbus, Ohio says choosing the right investigator is a “judgement call.” Nolan adds that managers should be trained to reach out when there is any hint of a potential legal HR issue.  Legal implications complicate otherwise routine disciplinary issues when management partners with HR.

Critical to any misconduct investigation is ensuring parties named in the employee’s complaint are not conducting the investigating, according to Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, NC.  Accused parties listed in an employee’s complaint should recuse themselves from any investigation.

Cummings also said that “HR should keep tabs on the company’s overall culture. Are employees fearful of bringing complaints of retaliation or [other complaints] to HR or to their managers? If the answer is, ‘yes,’ the employees are more likely to use external forums” when voicing concerns.

To see Smith’s full article, click here: https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/eeoc-guidance-retaliation.aspx .

Providing a platform for anonymously voicing concerns is another example of Red Flag Reporting’s benefit.  Our hotline service also ensures that if a report identifies a person who would normally be a recipient of our hotline report, our hotline report will be delivered to an alternative member of HR/management.  By allowing HR departments and management to investigate and defuse potentially damaging issues before they escalate, Red Flag Reporting’s dedication to safety and ethics offers an edge in the HR professional’s ability to protect their company’s people, assets, and reputation.

Looking for an independent safety and ethics hotline service provider?  We can help!

Share on LinkedIn Share
Share on Facebook Share
Share on TwitterTweet

Filed Under: Discrimination, Employee Hotline, Ethics, Harassment

We are Red Flag Reporting

We offer ethics, safety and fraud hotline / case management solutions to our clients via the web, over the phone and through other methods. Trusted by organizations large and small in 50 countries, we can help you!

We are an Ethics Hotline Service Provider
Find Out More  Get a Quote

Primary Sidebar

Hotline and Web Portal

We are an Ethics Hotline Service Provider

Get a Quote

We offer ethics, safety and fraud hotline / case management solutions to our clients via the web, over the phone and through other methods. Trusted by organizations large and small in 50 countries, we can help you!

Red Flag Reporting is Hiring!

About Red Flag Reporting Founded in 2010, …

[Read Article...] about Red Flag Reporting is Hiring!

Best Practices for Preventing a Workplace Retaliation Claim

Retaliation is the most frequent type of claim …

[Read Article...] about Best Practices for Preventing a Workplace Retaliation Claim

Internal Whistleblowers Face Few Protections: Why This Matters

The decision to become a whistleblower is never …

[Read Article...] about Internal Whistleblowers Face Few Protections: Why This Matters

Footer

Follow Along

  • Facebook
  • LinkedIn
  • Twitter

Red Flag Reporting

Red Flag Reporting provides compliance and ethics hotline services and case management software solutions to organizations seeking to promote safe and ethical behavior.

Reach Us

Red Flag Reporting
P.O. Box 4230, Akron, Ohio 44321
Contact Us

(Sales Office only – not a reporting line)
Tel: 877-676-6551
Fax: 330-572-8146

NOTE: Red Flag Reporting services are available for purchase by organizations only. We do not sell or provide our services to individual people.

  

 

Copyright © 2023 Red Flag Reporting all rights reserved. All other trademarks and copyrights are the property of their respective holders.

  • Red Flag Reporting – Ethics, Fraud and Whistleblower Hotline Service
  • Contact Us
  • Privacy Policy