Over the past several years, employers have seen a significant uptick in retaliation and whistleblower claims filed by employees and investigated by federal agencies.
Often these claims are part of another complaint, either concerning workplace discrimination or harassment issues and filed with the Equal Employment Opportunity Commission, or concerning workplace safety issues, which are filed with Fed-OSHA.
In 2023, the EEOC saw a record number of retaliation complaints — 46,047, up 20% from 2022. During that same period the number of cases that were resolved jumped 28% to 43,685 from 34,180.
Monetary benefit awards and settlements leapt nearly 30% to $283 million in 2023, from $220 million in 2022.
Importantly, the number of complaints filed with the EEOC that include retaliation increased to 50% of the total in 2022, from 30% in 2010.
At OSHA, the number of whistleblower complaints filed with the agency increased significantly in 2023, with the vast majority of those complaints — about seven in 10 — filed under the OSHA Act section on “retaliation based on protected safety acts,” like harassment or discrimination.
OSHA has put an emphasis on protecting workers who suffer retaliatory treatment after bringing up workplace safety issues with management. The number of retaliation case determinations by OSHA soared nearly 30% between fiscal year 2023 and FY2022.
What is retaliation?
Retaliation means any adverse action that management or supervisors take against an employee because they complained about harassment or discrimination or workplace safety issues. Any negative action that would deter a reasonable worker in the same situation from making a complaint also qualifies as retaliation.
Employees who participate in an investigation of any of these problems are also protected. For example, you cannot punish a worker for giving a statement to a government agency that is looking into a discrimination claim.
Employment law experts recommend that employers do the following:
Set clear and unambiguous policies
- Your company policy should clearly state that retaliation is not permitted.
- The policy should describe the parameters of inappropriate conduct as well as you can define them.
- Put the policy in writing.
- Set reporting and grievance procedures, including the person to whom the employee can report a retaliation complaint.
- Have staff sign an acknowledgment of receipt of your policy.
Investigate complaints promptly
- All complaints should be taken seriously and investigated without delay.
- Anyone who participates in an investigation is protected from retaliation (not just the employee who makes a complaint, but witnesses as well).
- Take effective remedial measures, including carefully reviewing all disciplinary measures before imposing them. You should also ensure that disciplinary actions are consistent with past practices.
Train managers and supervisors
Train managers and supervisors and ensure they understand your policies.
Make sure they understand who is protected from retaliation (participants, complainants — and even persons related to the complainant in some cases).
They should also understand what constitutes retaliatory conduct and, if they are unsure, they should speak to your human resources manager.
Further protection
Besides instituting policies and training managers and supervisors about avoiding retaliatory actions, it is important to have proper insurance coverage in place: employment practices liability insurance.
This insurance may cover the cost of employee-initiated lawsuits like discrimination, harassment and retaliation complaints, but it will not cover illegal acts. Covered costs include legal fees, as well as any settlements or judgments rendered against your business.