Protecting Your Company From Retaliation Claims

By David Hood
Partnership Chair

North Carolina law protects employees who engage in certain protected activities from employer retaliation. A lawsuit claiming that your business retaliated against an employee is serious. If the employee is successful in court, the consequences could include significant damages and fees. Fortunately, there are ways to protect your business against these claims. It starts with hiring the experienced employment law attorneys of Patrick, Harper & Dixon.

What Is Retaliation?

Before you can understand how to protect your company from a retaliation claim, it’s important to know what “retaliation” is in North Carolina. It is against the law for employers to do certain things like engaging in discrimination, harassing employees, or permitting unsafe working conditions. If an employee reports these or other illegal actions or acts as a whistleblower, the employer cannot retaliate against that employee. Likewise, employers cannot punish a worker for engaging in protected activities such as filing for workers’ compensation or asserting their statutory rights to medical leave or disability accommodation.

Retaliation can take many forms, including:

  • Termination
  • Suspension
  • Demotion
  • Denying a scheduled promotion or bonus
  • Reducing the workers’ wages or hours
  • Relocation as punishment
  • Unfair treatment
  • Harassment

Retaliation covers any behavior that would have the effect of deterring another employee from reporting the illegal conduct or engaging in the protected activity. It can include the above forms of punishment or anything else that is “materially adverse” to the employee.

How to Protect Against Retaliation Claims

Often, employees who fear they are about to be the subject of adverse action will assert some legal rights. Employers are permitted to take adverse actions against their employees if such actions are taken for legitimate reasons.  In other words, the primary way to protect against claims of retaliation is to avoid retaliating against employees and properly document the legitimate, non-retaliatory reasons for an adverse action.  There are two, related aspects of this decision-making process which should be well documented:

Taking adverse action only for well-documented legitimate business purposes. For example, if the employee was engaged in workplace misconduct, unsafe activity, dishonesty, insubordination, or was a poor worker, the employer could fire or otherwise discipline the employee. But the misconduct or poor performance must be well documented and the disciplinary action should be commensurate with the underlying issue.

Taking adverse action in accordance with well-documented company policy. While no handbook or set of policies can cover every situation, the key to minimizing the risks of a retaliation claim is to consistently follow well-documented company policies.  

Before taking an adverse action, the company will need to confirm that the documentation is there to support the decision, because that same documentation would be needed as evidence to defend against a claim. That documentation includes::

  • Written policies and procedures
  • Records concerning past discipline of the employee
  • Performance records related to the quality of the employee’s work
  • Emails and other written communications between the employer and employee
  • Evidence that other employees were treated the same way for the same behavior (e.g., were fired for poor work performance)

These are not easy cases to defend against, and you can be sure that the employee making the claim will demand significant compensation in a lawsuit. A court may award damages such as lost wages and benefits, attorney’s fees, court costs, and more. On top of that, losing a lawsuit could jeopardize your company’s reputation and be the subject of negative media attention.

Contact Patrick, Harper & Dixon Today

If you are concerned your business may be exposed to a claim of retaliation, it’s time to speak with a dedicated employment law attorney. Reach out to Patrick, Harper & Dixon to protect your rights and interests today.

About the Author
David W. Hood, Partnership Chair of the Firm, is a trial attorney in a wide-ranging civil practice with over 200 jury trials to his credit. His concentrations include Business Disputes, Construction Law, Personal Injury and Collections. He is also a certified mediator, helping to settle cases pending in both state and federal court. He recently finished his term as President of the North Carolina Association of Defense Attorneys, the organization for lawyers representing business interests in civil litigation. Mr. Hood has spoken to lawyers and industry groups on such topics as evidence rules, contractor liens on real estate and contract funds, underinsured and uninsured motorist coverage, litigation ethics, and real estate claims.