Retaliation against employees who are asserting their rights may be illegal. For example, if an employee files a discrimination complaint, or simply complains about something you are not doing correctly in violation of any federal or state law, and her supervisor reacts by firing her or changing her compensation or hours, the employee could file an additional claim or sue the employer for retaliation.

Often, retaliation claims are not this clear-cut. Courts and the Equal Employment Opportunity Commission (EEOC) can find that many actions that are more subtle than firing or demoting an employee may also be considered illegal retaliation.

Retaliation claims can be expensive for employers. If you own a dental or medical practice, you should be aware of what types of actions may be considered unlawful retaliation. It’s especially important to have good employment policies and procedures in place that will help prevent these claims from arising in the first place.

Avoid the Temptation to Retaliate

When you have a small or medium-sized dental or medical practice, you may feel that your employees are your work family. In that setting, it can be especially upsetting if someone files a discrimination claim or other type of complaint against the practice, especially if you believe the employee has always been treated fairly. An employer in this situation may start arguments with the employee or demand the employee take back their claim. If the employee refuses, the employer may fire them or take some other action to punish them.

Taking out your frustrations on an employee in any of these ways would be a big and potentially very costly mistake.

What Exactly Is Retaliation?

Retaliation occurs when an employer punishes an employee for asserting her rights by engaging in activities that are legally protected. Both federal and state laws prohibit workplace retaliation.

Legally Protected Activities

Activities, where employees have legal protection against retaliation, include:

• Filing claims internally, with a government agency, or in a lawsuit alleging discrimination, harassment, wage and hour violations, or safety violations.
  • Federal law protects employees from discrimination because of their race, color, religion, sex, sexual orientation, pregnancy, gender identity, genetic information, age, national origin, and disability. State laws may provide additional protection. For example, California law also prohibits discrimination because of medical conditions, marital status, and military or veteran status. Local laws may also offer additional protections. San Francisco prohibits employment discrimination based on weight and height.
• Threatening to file such claims.
• Participating in or being a witness in an internal or government investigation or litigation against the employer.
• Whistleblowing.
• Taking leave, such as medical leave, that is allowed under the law.

Actions Considered to Be Retaliation

In general, actions that make an employee’s job more difficult or have other negative effects on the employee are considered retaliatory. These include:

• Firing.
• Demotions and pay cuts.
• Denying a raise or promotion.
• Denying training or other opportunities.
• Exclusion from staff meetings.
• Undeserved poor performance review.
• Unwanted transfer to another job or shift schedule.
• Verbal or physical abuse.
• Threatening to report the employee to immigration authorities or police.
• Spreading rumors about the employee.
• Micromanaging or overly scrutinizing the employee.

This is by no means an exhaustive list. In general, if an employer’s actions would deter a reasonable employee from asserting their legally protected rights, then the employer’s actions will be considered retaliatory.

How You Can Prevent a Retaliation Complaint in Your Dental or Medical Practice

Be Consistent

If an employee has engaged in a protected action, such as filing a discrimination complaint, you should make an extra effort to be consistent. If you need to take adverse action against the employee because they have broken a rule, then treat the employee the same way you would:

• Treat other employees who had broken the same or similar rules.
• Treat other employees who have similar abilities and skills.
• Have treated the employee in the past before they filed the complaint.

Create Clear Employee Policies

You should establish clear policies for your employees, spelling out that discrimination, harassment, and retaliation are prohibited and will be penalized. Inform your employees that they should report any violations to you, and create a clear method for them to do so.

Additional Requirements for Anti-Harassment Policies in California

In California, you must have a harassment-prevention policy that is in writing. It must be clear, easy to understand, list all of California’s protected classes, and provide methods for employees to report complaints that do not involve reporting them to the employee’s manager or harasser.

California law also requires that you translate your policies if at least 10% of your employees speak a language other than English. Translations must be provided in every language spoken by 10% or more of your workforce.

Consider Using Written Policies

While California requires written harassment-prevention policies, other states may not require employee policies to be in writing. However, there are several important advantages to providing written policies. There is less chance of employees misunderstanding, compliance may increase, and showing that you have distributed written material may provide a stronger defense if a claim is filed against you.

Distribute the Policies to All Employees

If you have written policies, make sure that all employees get them and receive all updates. Also, ensure that new hires receive a copy.

Train Your Supervisors

Supervisors and managers should be made familiar with the laws, including your state and local laws, on workplace discrimination and retaliation.

Respond Immediately to Allegations

If an employee alleges that they were discriminated against or otherwise treated in a way that violates employment law, you should take the complaint seriously. Respond immediately and conduct an appropriate investigation promptly.

Document Your Actions

Keep a written record of all steps you take to prevent retaliation.

Do Not Retaliate Against Former Employees

Employees are protected against retaliation even if they no longer work for you. Actions such as providing negative references, disputing unemployment claims, and filing claims against the former employee could be construed as retaliation.

Get Legal Help

Dental and Medical Counsel can provide the employment law help you need to protect yourself against costly retaliation claims. We provide advice to dental and medical practices on establishing and implementing employee anti-discrimination, anti-harassment, and anti-retaliation policies, training employees and supervisors, and other steps you should take to prevent retaliation claims. We can also defend you if you have a claim filed against you. If you would like to know more, contact us to set up a free consultation with medical and dental attorney Ali Oromchian.

Update: If you are an employer or HR professional in California, please be aware of the new state bill 331 that went into effect on January 1, 2022. This new law prohibits confidentiality provisions in settlement agreements. To learn more, read CA Law Prohibits Confidentiality Provisions in Settlement Agreements.