Pritikin, founder of Proactive Lawsuit Prevention, made her comments at SHRM’s Employment Law and Legislative Conference, held recently in Washington, DC.
Retaliation Policy Must-Haves
Pritikin suggest that employers include the following in their anti-retaliation policies:
- Make a standalone commitment against retaliation—it’s the number one EEOC claim!
- Define retaliation
- Give a specific examples including “zone of interest”
- Set forth a complaint procedure with more than one avenue of complaint
- Include your hotline, ethics officers, ombudsman (but centralize all complaints to HR for investigation)
- Don’t promise confidentiality
- Set forth the consequences for violations
Proactive Retaliation Prevention Strategies
- Make a commitment and show it
- Train managers and employees
- Make a list of the “protected” (those in the zone of interest, the parties, witnesses)
- Timing is everything. Involve HR when making any decisions that affect those on the list (including routine warnings and appraisals)
- Reevaluate chain of command—is the accused reviewing the complainant?
- Remind employees to come to HR if they think they are being retaliated against
- Keep the investigation as confidential as possible and instruct participants to keep it confidential
- Follow company policy for a post complaint references
- Follow up with the complainant
- Watch out for:
- Protective measures (that might disadvantage the complainant)
- Hazing of the complaint
- Anti-fraternization
- Selective enforcement
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Pritikin’s Final Tips
When complainants tell you that they want to go home to avoid retaliation, get it in writing that this was their idea, and that they do not consider it a suspension or disciplinary action for making a complaint, says Pritikin.
Finally, she adds, pay serious attention to training—retaliation is now the number one legal threat, but many employers barely cover it in their training.
Retaliation training, pay-for-performance, wage and hour rules, retention, equity— challenges abound for every compensation manager. Every day brings new problem from within the organization and on top of that pile on whatever the agencies and courts throw in your way.
You need a go-to resource, and our editors recommend the “everything-HR-in-one website,” HR.BLR.com. As an example of what you will find, here are some policy recommendations concerning red-circle rates, excerpted from the website:
Red-circle rates are another story. Obviously, cutting the pay of an employee will not do much to gain acceptance for the new wage program, so alternatives have to be considered.
- One alternative is to “grandfather” the employee; this means allowing the employee to stay above the maximum until the person is promoted, terminated, or retired.
- Another approach is to freeze the employee at that red-circle rate until adjustments to the rate range finally capture the employee’s rate back into the structure.
- Still another approach is to increase the employee’s wage by only half of the adjustments made to the range, again, until the rate is captured.
A similar problem occurs with employees who are under- or overpaid in relation to actual performance. As defined, the minimum, midpoint, and maximum rates are each definitions of pay for specific levels of performance. So an employee performing 80 percent of the job duties at 80 percent efficiency under normal supervision and who is paid above the midpoint may have a pay rate similar to a red-circle rate except that it is within the rate range.
In this case, counseling and performance evaluation feedback are needed to bring performance in line with pay.
We should point out that this is just one of hundreds of analyses, checklists, training materials, job descriptions, and sample policies on the site.
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