Minimizing Employee Retaliation: Do the Right Thing! Ashley E. Bonner, WSO-CST Senior Risk Control Consultant Trident Public Risk Solutions

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1 Minimizing Employee Retaliation: Do the Right Thing! Ashley E. Bonner, WSO-CST Senior Risk Control Consultant Trident Public Risk Solutions

2 Roadmap 1. Definition of Retaliation 2. Frequency & Severity of Retaliation Claims 3. Legal Foundation: Organizations, Landmark Laws, Legal Cases 4. Best Practices for Managing Risk

3 What is Retaliation? An employer may not fire, demote, harass or otherwise "retaliate" against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. Examples: demotion, transfer, termination, managerial abuse

4 Race Disability Sex Retaliation Claim Drivers National Origin Age Free Speech (significant driver for Public Entity claims)

5 Retaliation Claim Statistics

6 Retaliation Claims Number has nearly doubled since : 21,363 (27%) 2015: 39,757 (44%) 65% resolved due to no reasonable cause Claims costs driven by legal fees Average costs to resolve - $250,000 18% resolved on merit $173.5 million in monetary benefits (not including litigation awards and defense costs)*

7 Retaliation Charge Statistics (2015) All Statutes 39,757 (44.5%) Title VII Only 31,893 (35.7%) Public Entity Carrier Experience ( ) 10% of Employment Practices Liability (EPL) claims with retaliation as primary cause of action 40% of EPL claims with secondary retaliation cause of action 30% of incurred loss ALAE

8 Legal Foundation: Organizations, Landmark Laws, Legal Cases

9 Enforcement: Legal Foundation Equal Employment Opportunity Commission (EEOC) U.S. Department of Justice Civil Rights Division (CRT) Basis: Title VII of the Civil Rights Act of 1964 Americans with Disabilities Act (ADA) Whistleblower Protection Act Of 1989 Age Discrimination in Employment Act (ADEA) State Statutes

10 EEOC and CRT - Responsibilities U.S. Equal Employment Opportunity Commission (EEOC) Enforces federal laws that make it illegal to discriminate against a job applicant or an employee. U.S. Department of Justice Civil Rights Division (CRT) The sole federal entity with authority to sue state or local governments under Title VII. Overlap of authority

11 Equal Employment Opportunity Commission EEOC has the authority to: Investigate and make finding. Try to settle the charge. When settlement not reached, refer lawsuit to CRT to protect the rights of individuals and the interests of the public. Provide training, technical advice and outreach programs.

12 Title VII of the Civil Rights Act of 1964 Federal law prohibiting employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. Generally applies to employers with 15 or more employees, including federal, state, and local governments.

13 Whistleblower Protection Act of 1989 Encourages federal employees (and private employees working under a federal contract) to report government and agency misconduct, and bars federal employers from retaliating against those who disclose information about such misconduct. In many states, whistleblower protection laws protect both public and private employees.

14 Elements of Successful Claim Employee engaged in protected activity. Employer of knew of the activity. Some adverse employment action occurred. Causal connection between protected activity and adverse employment action.

15 Burden of Proof (Shifting) Employee Must produce enough evidence to create inference of retaliation (prima facie). Employer Must produce evidence of legitimate, non-retaliatory reason for action. Employee Must prove employer s stated reason(s) is/are only pretext.

16 Public Entity Cases Pickering v. Board of Education, Township High School District. 205, Will County, IL (1968) Public employers cannot require employees to surrender their constitutional rights. Garcetti v. Ceballos (2006) Free Speech Does not prevent discipline for expressions made pursuant to professional duties. Lane v. Franks (2014) Free Speech Employer cannot discipline if acting as concerned citizen. Duffy v. City of L.A. (2016) Discrimination ($4 million adverse verdict)

17 Best Practices for Managing Risk

18 Policies Set the Tone Written Policies & Procedures (HR) Anti-Retaliation Anti-Harassment Discrimination Internal Complaint Procedures

19 Anti-Retaliation Policy Is the policy imbedded within other policies or standalone?

20 Anti-Harassment / Discrimination Policy Policy statement must contain: Definitions Reporting Procedures Response Procedures Discipline Procedures Process for Investigation of Allegations Protection from Retaliation

21 HR Policies & Procedures 1. Develop policy using available best practices. 2. Have policy reviewed by a Labor Attorney prior to approval and implementation. 3. Conduct annual reviews to make sure it is up to date and reflects any changes in your organization and the law. 4. Require every employee to receive copy and sign acknowledgement of receipt. 5. Ensure policies are adhered to uniformly.

22 Education is Prevention Supervisory & Staff Training State/Federal Mandates Frequency Content Modality Internal or External Resource Human Resources professionals Broker/carrier Third-party vendors

23 Documentation Policies in Practice Hiring Practices / Probation Performance Evaluations Progressive Disciplinary Action Consistent Disciplinary Practices Use Internal Case Studies What went right? What went wrong?

24 Best Practices in Claim Management To the extent permitted by law, keep claim reports and investigatory results confidential. Conduct a prompt investigation. Take appropriate corrective steps if there is evidence any adverse treatment of an employee may have been prompted by participation in a protected activity. Always consult with your organization s designated human resources professional (who may consult with legal counsel) before implementing any remedial action. When an investigation or charge is closed, continue to monitor to assure compliance with published policies.

25 Managing People, Not the Problem Respect is a key ingredient to a successful workplace. Managers and supervisors set the tone. Empathy and compassion treat the complainant with dignity and respect. The greatest damage to a victim of workplace misconduct occurs from insensitivity (comments, actions, attitudes). It is critical for the responsible manager or supervisor to be a model for appropriate response in the work environment.

26 Takeaways Law is complex Retaliation claims are on the rise Be aware of entities responsibilities Formal policies set the tone Training is key element in prevention Attitude: Do the right thing

27 Thank You! Ashley E. Bonner, WSO-CST Senior Risk Control Consultant Trident Public Risk Solutions

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