Fear of Retaliation: How to Protect Whistleblowers and Prevent Lawsuits

By Carlos Molina

Watch this video to learn more about managing your credit union’s employment practiuces liability risk.

Would your employees feel safe reporting that they’d been victims or witnesses of another employee’s misconduct? Fear of retaliation can discourage employees from coming forward. And for good reason: Retaliation appears to be a pervasive problem among U.S. employers.

The number of employees reporting employer retaliation to the Equal Employment Opportunity Commission has increased steadily since 2005. Retaliation was the most common complaint to the EEOC in 2013, rising almost 2 percent from 2012, even while the total number of complaints for all categories (race and sex discrimination, sexual harassment, etc.) dropped 5.7 percent over the same period.

To truly protect employees who report discrimination, harassment, or other misconduct—and to protect your credit union, the alleged perpetrator(s), witnesses, and anyone else involved in such a charge—a prompt, discreet, thorough investigation of the initial complaint isn’t enough.

You must also establish a policy prohibiting retaliation against anyone involved. And you must give employees a clear procedure to follow if they believe they’ve been victims of retaliation.

Three Safeguards Against Retaliation

What Is ‘Retaliation?’

A charge of retaliation can encompass more situations than you might think. Here’s what the Equal Employment Opportunity Commission (EEOC) website says about retaliation:

All of the laws we enforce make it illegal to fire, demote, harass, or otherwise “retaliate” against people (applicants or employees) because they filed a charge of discrimination, because they complained to their employer or other covered entity about discrimination on the job, or because they participated in an employment discrimination proceeding (such as an investigation or lawsuit).

The law forbids retaliation when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

This is quite a broad description, and your management team should be aware of it. Note that retaliating against an employee who alleges discrimination or harassment is punishable even when the allegation proves false. In fact, the EEOC has tacked on additional punitive damages to employers for retaliation.

Even if your credit union is too small for your employees to be eligible to file charges with the EEOC, adhering to its interpretation of retaliation can help protect you from other legal action.

Source: CUNA Mutual Group

As an employer, your due diligence includes investigating charges of wrongdoing while protecting the privacy of everyone involved as best you can. Here are a few initial steps you can take to protect employees from retaliation while protecting their privacy:

  1. Define retaliation in writing and require employees to acknowledge they’ve read the policy.
    Among the employment policies that all employees are required to read and sign, include one that specifically prohibits retaliation and spells out what that means. For example, an employee who reports misconduct such as theft, fraud, discrimination or harassment may not be fired, demoted, denied benefits or promotions, deliberately intimidated or otherwise mistreated as a result of the complaint.
  2. Assure a safe means of reporting wrongdoing. Give employees a clear path to reporting potential retaliation that allows them to circumvent the accused parties or anyone else who could handle the report unfairly. Include the choice of a neutral third party to receive retaliation complaints, such as a whistleblower hot line, your state’s department of labor or the EEOC. Clearly post the complaint procedures in your offices, employee manual, and intranet.
  3. Conduct regular training. Require officers and managers to be trained regularly in how to handle an employee’s report of retaliation. Teach them who to notify first, how to initiate a prompt, discreet investigation, and how to treat all parties involved while the matter is resolved.

These steps protect your employees, and they also protect your credit union from an extra exposure to risk that retaliation creates. Employers can be sued or otherwise penalized for retaliating against an employee involved in reporting wrongdoing—even if the report is proven false.

Retaliation is a serious legal matter, but it’s also a matter of trust. Create an environment where your employees know it’s safe to do the right thing.

For more information

  • CUNA Mutual Group’s Management & Professional Liability policy is written and designed specifically for credit unions. Learn more about the policy here.
  • Guard against retaliation with the risk review you’ll find here.
  • Download the Ethics Research Center’s 2013 “National Business Ethics Survey of the U.S. Workforce” here.
  • Read and download EEOC publications here.
  • If you have CUNA Mutual Group’s Management & Professional Liability Package of Protection, you have access to free white papers, sample policies, online training, and more at www.cunamutual.com/PRC

Carlos Molina is a risk management consultant with CUNA Mutual Group. Contact him at 201.321.3870 or at carlos.molina@cunamutual.com.

Questions about this story? Contact Gary M. Stein: 503.350.2216, gstein@nwcua.org.


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