Employment Law Alert – Retaliation Risks on the Rise
The Equal Employment Opportunity Commission (EEOC) completed its fiscal year on September 30th. Consistent with a multi-year trend, the most frequently filed charge with the EEOC during FY 2022 was retaliation. Retaliation under federal law occurs when an employer takes a materially adverse employment action because an applicant or employee asserts rights protected by the various anti-discrimination laws enforced by the EEOC. Accordingly, employers should take note of this trend and take appropriate steps to avoid having to defend against retaliation claims. For the most part, if such claims are litigated, they end up in federal court and result in costly legal fees to defend, even if the employer wins.
Perhaps of even greater concern to Virginia employers is that lawyers who represent employees against employers are more frequently taking advantage of a 2020 Virginia statute (Va. Code § 40.1-27.3) that created a new generalized retaliatory discharge claim protecting whistleblowers. This Virginia law has potentially broad and far-reaching effects that may allow almost any employee to conjure up some purported misdeed or violation of the law by an employer about which an employee contends he/she has complained. Unlike most federal laws, this relatively new state statute allows a plaintiff to file a retaliatory discharge claim directly with the court without any administrative pre-filing requirement.
To protect against the growing risks of retaliation claims, every employer should consider adopting some form of whistleblower protection policy so that employees cannot contend that they were unable to make a complaint because they did not know to whom they could turn. Also, employers should take any employee complaint about a possible violation of the law very seriously and investigate such complaints vigorously. As with nearly all discharges, employers are well-advised to carefully document a record of counseling regarding the reason for discharge prior to the separation and also prior to the employee raising a putative whistleblower complaint(s).
To help employers deal with the ever-increasing risk of retaliation, the new Director of Field Management Programs for the EEOC, Thomas Colclough, and a “Top Gun” plaintiff’s employment lawyer, James Shoemaker, will participate in a “Discipline & Discharge” workshop as part of our firm’s 38th Annual Employment Law Update on October 27th. Their perspectives will be valuable for attendees who wish to avoid being investigated by the EEOC or sued by a plaintiff’s lawyer.
A number of other timely topics will be presented at this day-long webinar. The primary goal of this program is to help employers deal with a multitude of changes related to new laws and risks in the post-pandemic workplace. For more information about the seminar, click here. Attendees can also earn up to 6 credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI) and 5 PPC’s toward SHRM-CT or SHRM-SCP.
The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2023.