An employee who files a complaint or returns from a leave of absence and shortly thereafter suffers an adverse employment action is likely to smell a retaliation rat. But what’s considered an adverse action? The answer to that question has left courts divided.
It used to be that some courts decided that adverse employment actions cover only “ultimate employment decisions,” such as termination, demotion, refusal to hire or promote, compensation, and granting leave. But a 2006 U.S. Supreme Court ruling defined adverse employment actions more broadly to include actions that result in a significant change in employment status—actions that materially alter the terms and conditions of employment.
The following actions may or may not support an employee’s retaliation claim. It would depend on the specific facts of the situation. But even if your company doesn’t suffer a courtroom loss, an employee’s perception of retaliation can put a drain on company coffers. Consider these managerial actions that often give off a perception of retaliation to employees and a court.
- Transfers. Lateral transfers are generally not considered an adverse employment action when there is no loss in benefits or decrease in responsibilities. It’s not enough if the employee merely does not like the new position. However, if the transfer can be seen as a demotion, it might be.
- Low performance ratings. Sudden and uncharacteristic drops look fishy—unless you have legitimate proof that they are justified. Also beware of managers holding employees to higher standards or stricter levels of scrutiny than their co-workers.
- New work assignments. A change in work assignments typically will not constitute an adverse employment action if the employee retains his or her same shift, benefits and pay, and the new assignment is consistent with previous job duties. Singling an employee out for grunt work or menial tasks, or giving an employee a heavier workload for no apparent reason, however, could be considered retaliatory.
- Doling out discipline. OK: discipline that is deserved. Filing a complaint does not shield employees from the consequences of any subsequent misbehavior. Risky: issuing harsh discipline for minor infractions or disciplining an employee for infractions that others are allowed to get away with.
- USERRA: Know your duty to returning disabled reservists
- Whistle-Blower protection requires employee's intent to expose illegality
- No obligation to create indefinite light-duty job
- Beware too much control over contractor! You could be liable for unemployment comp
- Managers can pay for their bullying behavior—And so can you