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Beware unintended consequence of staff realignments: More retaliation suits

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in Employment Law,Human Resources

Many employers are trying to do more with less these days, and that often means moving staff into new roles. Not every employee embraces that kind of change.

Some might even see a transfer as some kind of retaliation, especially if they have recently complained about discrimination.

Fortunately, courts seldom consider reassignments as adverse employment actions—unless the employee can show that the new position is substantially different from the former one. If there are no changes in pay, benefits or promotion opportunities, the reassignment probably isn’t retaliation.

Recent case: Janice Burgos settled an EEOC complaint she had filed against her employer, the Department of Homeland Security. Six months later, Burgos was reassigned to a different position.

She sued, alleging retaliation. But the job wasn’t substantially different from her previous one, so the court tossed out the case. It noted that a reasonable employee wouldn’t be dissuaded from filing a discrimination complaint if she knew she might face a similar reassignment. (Burgos v. Napolitano, No. 08-15042, 11th Cir., 2009)

Advice: The best way to handle the temporary reassignments that come with the economic slowdown is to ask for volunteers. If that fails, you could rotate the reassignments among employees.

You may also want to carefully explain why the company is making changes. Employees who understand why their employer is making changes are less likely to attribute them to ulterior motives.

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