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Human Resources

Workplace Retaliation Rights for Businesses

Christine Batten, PHR
by Christine Batten, PHR on June 20, 2014

A Kansas City, MO restaurant was recently accused of unlawful retaliation against employees who had participated in a one-day strike. A judge agreed with the employees, who alleged that the restaurant took away its free lunch employee benefit after some of the workers participated in a protected strike in connection with last year’s fast-food wage protests.

A judge ordered the restaurant, Gates and Sons Barbeque, to reinstate the long-standing free meal benefit. In the decision, it was ruled that there was no proof that the sudden discontinuation of the benefit was unrelated to the workers’ pre-announced walkout. 

In the meantime, it’s important for business owners of all industries to understand what retaliation is – and to educate managers in order to prevent a legal situation from developing. Retaliation is one of the fastest growing types of claims against employers. According to the EEOC, the number of claims filed in the U.S. has steadily increased over the last 15 years.

What Does Retaliation Mean for Employers and Employees?

Retaliation generally means that an employer took an unlawful and adverse action against an employee to punish or prevent them from taking a lawful action. An employer may not take any adverse action against an employee because he or she complained of harassment or discrimination, or engaged in a protected activity (such as a legal strike or union organization).

The Equal Employment Opportunity Commission defines “adverse activity” as any of the following:

  • Employment actions such as termination, refusal to hire, and denial of promotion
  • Other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, or increased surveillance
  • Reduction in pay or withholding of benefits/perks/employee programs
  • Changes in shift assignments, reduction of an employee’s scheduled hours, transfers between locations and changes in duties or responsibilities (if it could be tied to an effort to dissuade or punish an employee for protected action)

Adverse actions do not include minor negative comments, social snubs, or other negative comments that are justified by an employee's poor work performance or history.

Even if the prior protected activity alleged wrongdoing by a different employer, retaliatory adverse actions are unlawful. For example, it is unlawful for a worker's current employer to retaliate against him for pursuing an EEO charge against a former employer.

Of course, employees are not excused from continuing to perform their jobs or follow their company's legitimate workplace rules just because they have filed a complaint with the EEOC or opposed discrimination.

It’s always a good idea to include some kind of anti-retaliation policy in your handbook so that you’re covered. FrankCrum can help you develop a handbook that includes that and much more. Plus, FrankAdvice can help you pro-actively determine whether an action could potentially be seen as retaliation. Contact us to learn more.

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Christine Batten, PHR
Christine Batten, PHR

Christine has over 20 years of HR related experience with a background in labor and employment law.