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Employers: Get legal advice and be smart about retaliation issues, part 2

In part 1 of this post, we provided an overview of prohibited employer retaliation against employees for their engagement in certain activities protected by state and federal employment laws.

Illegal retaliation or reprisals occur when an employer takes materially adverse action against an employee because the worker engaged in work-related protected activities, including:

  • Reporting to management or human resources a reasonable, good faith belief of unlawful activity in the workplace like discrimination, harassment, unpaid wages, and others
  • Filing or pursuing a workers’ compensation claim
  • Cooperating in a government investigation into a co-worker’s claim of illegal treatment at work
  • Filing a lawsuit against the employer
  • Requesting or taking leave from work for which the employee is eligible, such as under the federal Family and Medical Leave Act (FMLA)
  • Requesting lactation breaks allowed by state and federal laws or complaining about noncompliance with legal requirements for breastfeeding in the workplace, such as a clean, private space that is not a bathroom
  • Requesting job accommodations for religious practices or disabilities
  • Refusing to follow an order at work that would cause the employee to do something illegal
  • Discussing salary, wages, or other working conditions with coworkers

But what if there is a valid reason for materially adverse action against the employee?

Retaliation claims are often factually complex, but despite an employee engaging in protected activity, an employer can “discipline or terminate [a] [worker] if motivated by non-retaliatory and non-discriminatory reasons that would otherwise result in such consequences,” according to the U.S. Equal Employment Opportunity Commission (EEOC). In other words, an underperforming employee who sees “the writing on the wall” cannot insulate themselves from an adverse employment action simply because they complained about an illegal practice or reported discrimination or harassment.

Because so much is at stake—not least the costs associated with defending a lawsuit, the opportunity costs associated with management’s time devoted to the lawsuit rather than their essential duties, and a potential hit to employee morale—a Kentucky employer should engage experienced legal counsel straightaway for guidance to preempt potentially complicated situations that could result in charges of retaliation.

Retaining a knowledgeable employment attorney early on can help an employer lower the chances of retaliation charges by articulating expectations to management and creating a safe atmosphere for people to speak up. After all, an employer needs to know if illegal or unethical activity may be happening so it can investigate.

The lawyer can help the employer establish written anti-retaliation policies and procedures as well as set up ongoing anti-retaliation training for management, HR, and non-supervisory employees. A lawyer can provide guidance and representation to the employer about how to respond in a nonretaliatory way when they receive an informal or formal report of a violation of law in the workplace or find themselves defending an employee’s retaliation claim before a government agency or in court.

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