For the last 20 years, retaliation cases have continued to climb; and over the last decade, retaliation cases have been the most common issue alleged by employees. On Nov. 10, 2021, the Equal Employment Opportunity Commission, the Department of Labor and the National Labor Relations Board announced a joint initiative to raise greater awareness about workplace retaliation and promote workers’ rights.
These federal agencies are tasked with enforcing several labor laws, but all share a common goal, to enforce laws that protect workers who exercise their workplace rights and assist employers in understanding their obligations under federal workplace laws.
The EEOC enforces federal laws against job discrimination and harassment, including Title VII and other nondiscrimination laws. The DOL is responsible for enforcing federal labor standards, as well as OSHA’s workplace safety and health regulations. The NLRB generally protects a workers’ right to collectively seek better working conditions without fear of retaliation.
What does the initiative mean for employers? Employers can expect enhanced enforcement of labor laws and the release of additional concrete guidance and educational tools to help employers ensure compliance. Thus far, the EEOC has taken the first step in carrying out the initiative by updating its COVID-19 technical assistance guidance to address the challenges associated with workers who believe they have faced COVID-19 retaliation. This is likely the first of many steps to help combat workplace retaliation, as the agencies have asserted they will use all available tools and resources to continue to protect workers.
As we start the new year, it is important for employers to invest time and attention to compliance efforts. Now is the time for employers to get back to the basics and reevaluate their anti-retaliation mitigation protocols. Best practices include detailed written policies against retaliation that provide a clear reporting policy; interactive retaliation training with both employees and management staff; follow-up with workers who have reported discrimination to address whether they have any concerns regarding retaliation; and use of counsel to review challenging employment decisions.
Implementing these practices will help employers better avoid retaliation claims and will better prepare employers for the expected added scrutiny from the federal enforcement agencies.
* This article first appeared in The Journal Record on February 4, 2022, and is reproduced with permission from the publisher.