Practical Guide to Mitigating Employers’ Risks from “Bad Actors” Engaging in Retaliation | Jackson Lewis PC

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The Biden administration recently announced increased coordination between the EEOC, the US DOL and the NLRB to strengthen an interagency approach focused on countering unlawful retaliation in the workplace. 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 expect aggressive coordination and joint enforcement efforts that will draw on the full range of resources and tools available within government as authorities work to secure workers’ rights, given workplace issues in several overlapping dimensions Employment may not fall entirely within the competence of a single agency.

Prudent employers want to do the right thing—prevent retaliation and behavior in their workplace. But if we appreciate human nature, we know that the impulse to “become equal” exists. What can be done to demonstrate that an employer has taken all reasonable steps to mitigate the risks of a “bad actor” creating legal and branding risk for the organization?

There are several practical steps, each of which must be tailored to the organization, from the most benign to the most rigorous. Some of these steps include:

  • Establish a written, widely used and easily understood—in lay language—policy that prohibits retaliation.
  • Distribute the policy to both new employees on induction and established employees at all levels within the organization. It is imperative that leaders at the highest level consistently demonstrate that the policy applies to everyone within the organization, including themselves.
  • Make it clear that the policy applies to all employees, is directly linked to organizational values, and that violations will be severely and consistently punished.
  • The policy should appear in the organization’s policies and procedures manual, manuals, and code of business ethics.
  • Require signed acknowledgments of receipt and understandings, which should be retained and renewed/revised annually.
  • Assess the risk associated with middle and high-level executives and influential individual contributors being the focus of lawsuits or investigations, and in the event of a lawsuit, make it clear that the burden of conviction falls on them individually or collectively to show that they were not involved in any retaliatory behavior.
  • Make it clear to all complainants and cooperating witnesses that the organization needs to hear about any concerns that the individual may view as hostile in their work environment, and conduct routine, periodic, and systematic reviews to ensure there are no complainers or witnesses of retaliation or subjected to unfair treatment.
  • Establish a rigorous, independent review protocol for all employment actions involving a complainant or witness before execution any employment lawsuit with decision makers who have played no part and ideally are unaware of the underlying claims.
  • Where increased risk warrants it for senior executives, provide senior executives with mandatory alternatives in the event of a claim [i] accepting paid leave pending termination; or [ii] Remain in the role and enter into an agreement allowing recovery of indemnities based on “harmful conduct” with warning that determination of retaliation will result in termination for “cause of cause” and ineligibility for reinstatement.
  • As permitted by law, consider a fee reallocation agreement whereby an individual who is credibly accused and identified by the organization for retaliation or conduct will be responsible for any claims brought against the organization by the targeted individual or any regulatory authority for payment of the organization’s defense costs.
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