Staffing firms are used to dealing with lawsuits that fall under Employment Practices Liability Insurance (EPLI) coverage. Conflicts within the work environment, although frowned upon by management, are usually unavoidable. The conflict causes vary but are often cases which portrays bias on race, color, sex or sexual orientation, religion, wages, disability or national origin. To ensure that fairness and justice prevail, those who have expressed their grievances, employees and applicants alike, are protected from any retaliation act from an employer. These employment laws are reinforced by the Equal Employment Opportunity Commission (EEOC).
Any adverse action taken by the employer against an employee or applicant as a result of the latter asserting their rights in accordance with EEOC’s employment laws are construed as an act of retaliation.
An employer is unable to retaliate in cases which involved employees or applicants:
- filing a complaint of discrimination or harassment
- answering questions related to discrimination or a harassment complaint investigation
- refusing orders which would ensue prejudice
- resisting advances that are sexual in nature
- requesting arrangements related to a disability or religious practice
Whoever reported the retaliation act, regardless of whether the report was for someone else, an act which he personally did not experience, he or she will still be protected by this law. The act of retaliation is not limited to terminating or disciplining an employee or applicant. It also encompasses:
- any movements or transfers which caused the employee to shift to a lower or less desirable role
- any form of abuse – physical or verbal
- unfair performance reviews
- obsessively monitoring work or attendance without a solid reason
- involving a family member or friend to get even
If upon investigation, the employer is deemed to be guilty of retaliation, there are three relief types available to the employee:
The EEOC requests that the retaliation act stops right away in order to prevent further damage. This is while completing submission of the retaliation claim.
Compensatory and punitive damages
The employee is given monetary compensation. Private employees are punished.
Acts such as requests to change management policies to foster better relationships and compliance in the future.
Strategies to Prevent Retaliation Claims
There are concrete ways on how your client’s staffing firm can lessen the risk of retaliation claims:
Strategy # 1 – Always Document
Every reprimand or action taken against an employee must be properly documented. It should be clear on what grounds the employee was sanctioned for, which action was considered a violation and what the consequences are. Moreover, timing is also very important. The staffing firm must take note of when the employee displayed the violation and when the employer will implement his or her decision. Be thorough in documenting the details around the case and the action taken against the employee. Having an accurate document handy will serve as irrefutable evidence later on.
The employer can fight back any retaliation claim by showing evidence that will prove:
- unqualified or not meeting requirements for the role he or she is applying for
- there were others who didn’t file a discrimination complaint, but received the same sanction
Strategy # 2 – Focus on Clear Communication
There must be a clear communication between the staffing firm and the client. The staffing firm must be reaching out regularly to the client, to learn more about the employee’s performance and improvement points. The client should have clear and stringent processes in place in order to identify employees that are low performing and are at high risk for transfers or termination. Any discussions and actions taken as a result should be written down and tracked on paper.
Strategy #3 – Be proactive
It is also considered a great practice to automatically reach out to an EPLI or employment lawyer to answer questions or request guidance. Be proactive to help reduce the slow but consistent uptick in retaliation claims.
Retaliation claims can be prevented by establishing the right strategies and implementing best practices within the workplace. The best interest of the employees must always be the top priority of your client’s staffing firm. With proper education, clear communication, guidance and support, staffing agencies, clients, employees and staff can create a strong bond built on trust and respect.
About World Wide Specialty Programs
For the last 50 years, World Wide Specialty Programs has dedicated itself to providing the optimal products and solutions for the staffing industry. As the only insurance firm to be an ASA commercial liability partner, we are committed to that partnership and committed to using our knowledge of the industry to provide staffing firms with the best possible coverage. For more information about Staffing Professional Liability Insurance or any other coverage, we have available to protect your staffing business, give us a call at (877) 256-0468 to speak with one of our representatives.