Practical Guidance to Mitigate Risks to Employers of “Bad Actors” Who Engage in Retaliatory Acts | Jackson Lewis PC

The Biden Administration recently announced increased coordination between EEOC, the US DOL and the NLRB to strengthen an intra-agency approach focused on combatting unlawful workplace retaliation. The approach will raise awareness and engage not only workers and the public, but also other key stakeholders, including employers.

Given the Administration’s focus, employers should anticipate aggressive coordination and joint enforcement efforts which will take advantage of the full range of resources and tools available within the government as the agencies work to secure workers’ rights because workplace experience issues in multiple, intersecting dimensions of their employment may not be completely covered by any single agency’s jurisdiction.

Prudent employers want to do the right thing – prevent retaliatory actions and behavior in their workplace. But, acknowledging human nature, we know that the impulse to “get even” exists. What can be done to show that an employer has taken every reasonable measure to mitigate the risks of a “bad actor” creating legal and brand risk for the organization?

Several practical steps exist, each of which must be tailored to suit the organization, ranging from the most benign, to the most severe approach. Some of those steps include:

  • Put in place a written, widely circulated and easily understood – in layperson’s language – policy prohibiting retaliation.
  • Distribute the policy both to new hires when onboarding, and to incumbent employees at every level within the organization. Senior-level leaders absolutely must consistently show that the policy applies to all within the organization, including to themselves.
  • Make clear that the policy applies to all employees, is linked directly to the organization’s values, and that violations will be dealt with sharply and consistently.
  • The policy should appear in the organization’s practices and procedures manual, handbooks and code of business ethics.
  • Require signed acknowledgments of receipt and understanding should be maintained and should be renewed / revisited annually.
  • Evaluate the risk attached to mid- and senior-level leaders, and influential individual contributors who may become the focus of claims or an investigation, and in the event of a claim, make clear that the burden of persuasion will fall on them individually or jointly to show that they played no part in any retaliatory behavior.
  • Make clear to all complainants and cooperating witnesses that the organization needs to hear about any concern that the individual might view as hostile within their work environment, and put in place routine, periodic, and systematic check-in’s to be certain that no complainant or witness has been subjected to retaliatory or unfair treatment.
  • Put in place a close, arm’s length review protocol for any employment actions affecting any complainant or witness prior to execution of any employment action using decisionmakers who played no role in and ideally are ignorant of the underlying claims.
  • Where heightened risk warrants doing so with senior-level leaders, in the event of a claim, present senior leaders with mandatory alternatives of [i] accepting a paid leave of absence until resolution, or [ii] remaining in role and entering into an agreement that allows for “Detrimental Conduct” -based claw back of compensation, with warning that finding of retaliatory conduct will result in termination for “Cause”, and ineligibility for rehire.
  • As permitted by law, consider a fee-shifting agreement under which an individual credibly accused of and determined by the organization to have engaged in retaliatory behavior or conduct, is in any action brought against the organization by the target or by a regulatory agency, responsible for payment to the organization’s defense costs.

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