Retaliation claims are the most common — and therefore the most expensive — claims employers face. The Equal Employment Opportunity Commission fielded a record 42,018 complaints of retaliation in fiscal year 2016. That is more than double the number filed 10 years ago. They accounted for 45.9% of all complaints filed with the agency.
So, what exactly is a retaliation claim, and what can businesses do to avoid them?
Elements of Retaliation
In its ordinary use, the word “retaliation” is more or less synonymous with “revenge.” In employment law, retaliation has the more specialized meaning of taking an adverse action against an employee because they engaged in a protected activity.
The term “adverse action” is broad, but not unlimited. An “adverse action” is something the employer does to the employee that materially affects the terms, conditions or privileges of employment. Courts have generally held that things like termination, demotion, suspension, removal of responsibilities, imposition of harder or less desirable work, overtime and reduction in pay or benefits qualify as adverse actions.
“Protected activities” are any activity that relates to the exercise of employment-related rights. Some examples are taking legally protected leave, complaining about unlawful discrimination, reporting violations of the law or health and safety dangers (in some cases), discussing wages with other employees and seeking workers’ compensation benefits. There are at least 40 federal anti-retaliation and whistleblower laws creating protected activities, and most states also have their own.
Even if employees can prove they engaged in protected activity and suffered an adverse action, they also have to prove the employer took adverse action because of the protected activity. The employee can point to close timing between the two events to prove this causal connection by inference in the absence of other evidence, but employers can rebut that by showing the adverse action was taken for another, legitimate reason — such as the employee being caught stealing.
Susceptibility in Cannabis
Based on national trends and a high level of regulation, retaliation claims will likely be the most common type of complaint that marijuana businesses face. Not only will there be the common fact scenario in which a termination or demotion follows soon after employees ask for leave or seek workers’ compensation, but employers will also face claims that an employee either reported or intended to report some violation of state regulations prior to the adverse action.
In fact, the Oregon Legislature included a whistleblower provision specifically protecting cannabis industry employees who report violations of Oregon’s cannabis laws, and there have already been a number of these types of cases.
Avoiding Retaliation Claims
What can businesses do to avoid retaliation claims? Plenty. Educating oneself about retaliation claims and what activities are protected is a good start. This will help identify when an employment decision could expose the employer to a retaliation claim. If managers find themselves in the high-risk situation where they wish to materially change the terms and conditions of employment of a person who has engaged in protected activity within the previous eight or nine months, they should speak with an expert before pulling the trigger.
Company handbooks should expressly state that retaliation is prohibited and provide an avenue for employees to report retaliatory actions taken by their supervisors. It is also vital that supervisors receive documented training regarding the company’s retaliation policy. Supervisors can be individually liable for retaliation, so it is in their best interest to avoid claims. In some cases, employers may need to change work assignments to reduce the risk of retaliation (such as reassigning a supervisor an employee has complained about so that supervisor no longer oversees that employee).
If an adverse action needs to be taken against an employee who has engaged in protected activity, the best defense is to have rock-solid documentation supporting the action. The most common mistake employers make (other than actually violating the law by purposefully firing someone for engaging in protected activity) is failing to document performance problems.
It is common for an employer to fire an employee for performance issues several months several months after the employee engaged in a protected activity. If those performance issues are not documented, jurors will not believe the employer. It is also very important that whatever adverse action is taken is consistent with the employer’s past practices. If the employer has generally tolerated other employees arriving a few minutes late to work and then disciplines an employee who has engaged in protected activity for arriving late, that too will be viewed as pre-textual.
Conclusion
Awareness of the risk of retaliation claims and implementation of a few simple policies can go a long way toward reducing the risk of retaliation claims. Train your supervisors well, tread carefully when in a high-risk situation, and document, document, document.
Alex Wheatley is an attorney in the Portland office of Fisher Phillips (www.fisherphillips.com), a national law firm committed to providing business solutions for employers’ workplace legal problems. He defends employers in employment-related administrative claims and lawsuits. He specializes in representing businesses in the cannabis industry to implement effective workplace policies.
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