Are You Sure the Company Does Not Retaliate? 5 Forms of Inadvertent and Subtle Retaliation that Will Get Employers Sued

Employer’s cannot retaliate against an employee for engaging in a protected activity. A protected activity includes complaints of discrimination, harassment or retaliation; a complaint of violation of the Fair Labor Standards Act (FLSA) relating to wages and overtime; the exercise of an employee’s rights under the Family Medical Leave Act (FMLA) for a medical leave of absence, etc. Retaliation is the number one reason why employees do not report illegal or inappropriate behavior to their employers. If employees do not report the inappropriate behavior – because of a fear for retaliation or otherwise – the issue typically does not get resolves, affects other employees, decreases morale, increases turnover and leads to lawsuits. While it is in an employer’s best interest to investigate employee complaints, HR and managers need to be aware of retaliatory acts, especially the more subtle approaches that might not be so obvious.  

1. Exclusion. Is everyone getting invited to lunch or happy hour except the complainant or witness? Is he or she no longer invited to meetings or being left off emails? Is his or her work being given to someone else?
2. Change of Position or Shift or Decrease in Hours: A change in position or decrease in hours might be helpful to a complainant who complains she is getting the less desirable shift due to a protected class. Therefore, a. change in position may seem like a logical solution. If the company is inclined to make this type of change, be sure to ask the complainant if they agree with the change, or else such a change might be deemed retaliatory.
3. Setting employee up for failure. Has the complainant or witness suddenly been given a project outside his or her normal scope, with a tight deadline, an additional workload, overly scrutinized his performance, etc.? If so, this may lead to a retaliation claim, especially if other similarly situated employees are not held to the same standards.
4. Reduced pay increase or bonus. Has the complainant or witness received a lower than normal pay increase or annual bonus as compared to his or her peers or own past record? If so, and there is no legitimate business reason for the decrease in pay or bonus and the employee has recently engaged in a protected activity, this could be deemed retaliatory.

If the answer to any of these questions is yes, the employer may want to take a closer look as to why this may be occurring, and take the additional steps necessary to help ensure it won’t be deemed to be retaliatory. Investigations cannot be successful, and employee issues cannot be resolved, if employees are unwilling to report improper and illegal issues. Employers should have anti-retaliation policies in place and properly train the management team such that retaliation, even inadvertent or subtle retaliation, does not take place.

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Have we met? I’m a Florida employment lawyer, workplace investigator and workplace trainer on employment laws. I help my clients navigate tricky workplace situations and comply with employment laws through legal advice and counseling, workshops/customized trainings for managers, HR and preparation of legal agreements.

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