The NAVEX Global Master Class on Retaliation in the Workplace generated thoughtful questions and discussion points from our attendees. Although our presenters were not able to answer all questions during the live Q&A session, they have done their best to answer some of the most reoccurring questions here.
*The answers below are best practice guidance, however, should not be taken as legal advice or a substitute for consultation with knowledgeable and qualified legal counsel. Greg Keating and Scott Nelson, the legal representatives at our Master Class, would be happy to continue those conversations.
1. Should the person against whom a claim is made be notified later in the investigation in order to prevent retaliation? Pros/Cons?
A: This question highlights the need for a strong investigative protocol that considers the appropriate time to notify not only the person who is alleged to have been engaged in the wrongdoing, but also others who will be asked to participate in the investigation. Typically, the person against whom the claim is made will need to be informed at some point. Work with legal counsel to get the timing right. Once you notify the person against whom the claim is made, make clear to the individual that there is a non-retaliation policy.
2. What is the best course of action if a reporting employee is already on a disciplinary track? And perhaps they are trying to shift attention away from their performance.
A: This is a great question. Hopefully the documentation was in place and clear prior to the report. If you aren't comfortable that there is appropriate documentation in place ahead of the report, proceed very carefully with further disciplinary action and consult with counsel.
3. How do you measure the effectiveness of efforts made to address the fear of retaliation in a workplace?
A: Many organizations use culture surveys and small, confidential focus groups to gather feedback on fear of retaliation. When asking these questions, it is also useful to ask who employee groups specifically fear (e.g., managers, peers, HR, etc.).
4. How often do you recommend providing retaliation training? Is once a year enough, or have you found that increased frequency is better?
A: With the amount of training that employees are asked to complete, once a year as a stand-alone training would be enough. (You may even chose to use microlearning for this once in a while.) But make sure retaliation concepts are also included in tactical ways in key training courses such as code of conduct, harassment, bribery, etc.).
5. Can someone file a retaliation claim on behalf of someone else?
A: If this question is about whether it should be allowed internally – yes, I would definitely allow it. You want to encourage employees to speak up when they see misconduct, and we know that targets of retaliatory behavior may be reluctant to report.
6. Regarding the whistleblower hotline, who would be the best person/department to be the point of contact? Is it usually one person or more than one?
A: Best practice is that the ethics and compliance team is the primary point of contact. In some cases, other departments are asked to conduct or participate in the investigation, but the primary responsibility for oversight of the report should be with the ethics and compliance team.
7. How can we follow up with anonymous reporters? Without the ability to follow up, I'm worried the reporter will think the concern was not taken seriously.
A: Ensure that you have, and are able to communicate through, an intake system with an anonymous reporter. And ensure reporters know how to follow up through the system and their obligations to do so.
8. We continually see reports where the term "retaliation" is used loosely (e.g., "My boss retaliated against me by yelling at me in a meeting because he didn't like my comment"). Even though the reporter selected the primary issue for their report as retaliation, our company's definition of retaliation is much different than what some employees report. Thoughts?
A: This is a good example of why training on this topic is needed at all levels, defining what is and what is not retaliation? What does it look like? In this example, it is also worth noting that "yelling" is not an appropriate behavior in the workplace and that the yelling or abusive behavior should still be reported.
9. What types of accountability measures can you recommend for managers who retaliate against an employee?
A: The circumstances will dictate the particular outcome. But in general, it can include all types of discipline, up to and including termination.
10. What if the retaliation comes from the upper echelons of the organization? How do you pursue this when it is the boss retaliating?
A: Hopefully the boss isn’t the chief compliance officer. Assuming that it is not, the CCO should have the authority and resources to address the issue.
11. Would you recommend not having a policy that requires employees to report concerns first to their supervisor? Is it a precursor to a retaliation claim if the company acts against the employee for failing to report to the supervisor/company first?
A: Your policy should not require reporting first to a manager; this is actually inappropriate under many laws. Employers are expected to provide reasonable options, which can include options other than the employee's direct manager. If the manager is the one engaging in the misconduct or has been ineffective in the past, or the employee is not comfortable making a report to the manager, the employee should have other options.
12. What type of controls can we implement to detect and prevent retaliation?
A: Some organizations follow-up periodically with the employee directly to be proactive. Some work with HR to monitor raises, performance plans, changes in work schedule, etc., to ensure no adverse action has been taken.
13. I'd like to launch a new training program to our employees. Do you have a sample training session to leverage? Or, what sources should I look at to build a training session?
A: NAVEX Global does offer training on reporting in the form of three micro-learning courses. We also include retaliation content in virtually all of our full-length courses. You can see our available titles on the NAVEX Global website, or let us know if you would like someone to contact you to talk about these solutions.