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Friday, September 23, 2016

How to Make the EEOC Love You


By Thomas Eden

Employers, imagine that a retaliation charge has been filed against your company. What can you do to make the Equal Employment Opportunity Commission (EEOC) investigator love you (and go away)? In early September, the EEOC issued its final Enforcement Guidance on Retaliation and Related Issues, accompanied by a Q&A, and a Small Business Fact Sheet.

HERE THE SIX WAYS TO MAKE THE EEOC INVESTIGATOR LOVE YOU (Retaliation Edition):

Have a written no-retaliation policy, in plain language that your least-educated employee can understand. Provide realistic examples. Tell employees where and how to report alleged retaliation. In the management version, provide a hotline and other help for managers and supervisors who have to supervise an employee who has engaged in protected activity.

Go through your other employment policies, and revise or scrap any that seem to threaten employees who engage in certain types of protected activity. For instance, if you have a policy that prohibits employees from talking about their pay, ditch it. The EEOC says a policy like that is retaliatory, and if you’re a federal contractor such a policy will also get you in trouble with the Office of Federal Contract Compliance Programs. Other federal agencies hate those policies, too, including the National Labor Relations Board.

Include retaliation in your regular EEO training for employees and supervisors. Again, employees need to understand that retaliation is against the law, and they need to know where and how to report it. You can always video record the training for employees in remote locations. Supervisors and managers accused in a charge need to take to hear the EEOC advice: “Emphasize that those accused of EEO violations . . . should not act on feelings of revenge or retribution, although also acknowledge that those emotions may occur.”  You have to love the way that the EEOC separates actions from emotions.

If a current employee files a charge (or engages in other protected activity), talk with the employee’s supervisors and managers as soon as possible, and remind them of the laws and company policy against retaliation. If they directly supervise the employee who filed the charge, come up with a plan that will allow them to keep their personal feelings under control and continue constructively managing that employee. 

Follow up periodically with everyone involved in a charge (or other protected activity) to ensure that no retaliation is occurring. “Everyone” would include the individual who filed the charge, as well as his direct supervisor and the people in his chain of command. If you have employees who are witnesses in connection with the charge, check in with them, too. If you find out that there is actual or perceived retaliation, you need to address it immediately. 

If action has to be taken against an employee who has filed a charge or engaged in other protected activity (“sacred cow” employee), review it carefully in advance, in consultation with your employment attorney. Even a seemingly slight downgrade in a performance rating could be considered retaliatory if it results in a smaller pay increase or makes the employee ineligible for promotion.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. This column is taken from a Constangy Blog Post by his law Partner Robin Shea. Tommy can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com with link to full case.