Make your complaint process retaliation-proof by limiting access

Access to internal complaints should be on an as-needed basis.

The problem: Internal complaints often precede complaints that someone retaliated against the complaining employee. For that to happen, the retaliator must have known about the complaint.

The solution: Restricting access to those files limits the number of staff members who can be accused of retaliation.

Recent case: Louis, who is black, wrote letters to the president of the company, complaining that white workers were offered more overtime than black workers.

A year later, Louis was randomly selected to take a drug test. He was fired when he refused. He sued, alleging that he had been picked for the drug test as punishment for writing to the company president.

The court didn’t see it that way. The employer showed that the person responsible for firing Louis for refusing to be drug-tested didn’t know about his overtime complaint. That was enough to get the case tossed out. (Gachette v. Metro North-High Bridge, 2nd Cir., 2018)

Final note: All a worker has to prove in a retaliation case is that he made a complaint based on a good- faith belief that his employer was discriminating or violating a law. Then, if the employer finds a way to punish the worker—with termination, demotion or even a shift change—the worker may win a retaliation lawsuit.

Employers can break the causal link by showing that the person who made the disciplinary decision didn’t know about the complaint. No knowledge, no retaliation.