By Evie Wentink, Principal
Ethical Edge Experts
ethicaledgeexperts@gmail.com
(609) 664-6174
Almost every company, and I am talking about medium, large, small, and the ones in between, has some form of Non-retaliation policy.
What does it mean to have a Non-Retaliation Policy? A formal written policy declares that the organization is committed to maintaining a workplace free from retaliation and will not tolerate any form of retaliation against employees who engage in protected activities. Then, it may or may not include some examples of retaliation; it could also discuss who is responsible for the policy and the hotline number in the least bit.
There can be many questions about this policy and the practice regarding retaliation. How is it communicated with employees? Are managers trained on retaliation and how to prevent it?
Just because a company has a policy does not mean the employees will trust it. Employees talk, and it is like the game of telephone: the information that gets spread around is always the worst-case scenario. As we know, bad news goes viral.
So, how do we, as compliance professionals, change that? I will give you a one-word answer: C U L T U R E.
We must ensure that the employees are protected from retaliation, which means training, training, and more training. In the organizations that I have come across – I have never seen a stand-alone Prevention of Retaliation training. Yes, we know that any adverse action after an employee files a complaint could result in retaliation. But is it? Some actions may be very subtle. Some actions may be an appropriate level of “instruction,” but the employee may feel it is retaliation. Things tend to get messy. If the employee feels that retaliation took place, two things happen – the employees learn about this “retaliation” and possible lawsuit.
Our managers need to know what retaliation looks like and all the different forms it could take. Specific examples of retaliatory behaviors (after reporting misconduct or participating in an investigation) may be some of the following:
- Termination or demotion.
- Unjustified negative performance reviews.
- Harassment or intimidation, hostile work environment
- Reduction in pay or hours.
- Denial of benefits, bonuses, or promotions. Including not approving time off.
- Excluding employees from meetings, projects, or outings.
- An employee is reassigned to do less-desirable jobs or projects.
- The employee is given an assignment that is below their skill level.
- The employee’s shift schedule and break schedule are changed to a less favorable one.
- The employee receives unwarranted disciplinary action.
- The employee is written up for minor infractions.
- The employee is transferred to a different department or location without legitimate business reason.
- The employee is moved to a different team with fewer opportunities for advancement.
Some of the above examples could be for a business reason, but if any of these examples happen when there is a complaint in question, you are at risk of facing a lawsuit that will be difficult to defend.
Companies also need to have an Investigation Policy to discuss the investigation process, a Confidentiality Policy, a Harassment Prevention Policy, Open door policy/practice and, of course, a Business Code of Conduct.
The Compliance Department needs to arm the managers with the power of knowledge. All managers need to understand these policies in detail and be able to ask questions. There is no policy that covers every single scenario so it is best to have a face time with the managers so that they can ask questions of the subject matter experts directly.
Now, we have armed the managers with the know-how of how to prevent retaliation. Is that enough? Of course not, but it is a good step.
Next on the list is to have a working hotline system, which means the employees have full knowledge of everything they need to know about the hotline, including the hotline number and the Compliance Team. Then, when the hotline number is called, the employee understands the process and is provided with periodic updates and some kind of resolution. Remember, employees talk. Finally, when it comes to the hotline, employees are provided with statistics on the hotline calls. Keeping confidentiality in mind, transparency is the key.
With time, with his information in mind we are changing the culture, one hotline call, one investigation at a time. It does not happen overnight, but this is how we work on changing the culture and the buzz at the bottom.