Retaliation is the most common basis of discrimination claims, appearing in more than a third of all claims filed with the EEOC and costing employers millions each year. Learn how to deal with the challenges of retaliation and earn CE credits at the same time.

1. Whistleblower Protections Expanding
 State and federal discrimination laws anti-retaliation
provisions – 1960’s-80’s
 OSHA Workplace Safety Statutes – 1970’s
 False Claims Act & The Whistleblower Protection Act –
1989
 The Sarbanes-Oxley Act – 2002
 Dodd-Frank Wall Street Reform and Consumer Protection
Act – 2010
 Whistleblower Protection Enhancement Act – 2012
 State & Local Whistleblower Laws
 United Nations Convention Against Corruption – 2003 –
subsequently signed by 140 nations ©2016 Lorene F. Schaefer, Esq.
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2. Poll Question #1
Has your company had a retaliation
claim filed against it from outside
the US or Canada?

3. Retaliation Claims Increasing
 FY 2015 retaliation claim included in 44.5% of all
EEOC charges filed.
 FY 2015, there were 3,288 whistleblower
complaints filed with OSHA – a 6% increase over
whistleblower complaints filed in FY 2014
©2016 Lorene F. Schaefer, Esq.
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4. Poll Question #2
Have you seen an increase in
retaliation claims over the past
three years?

5. Big $ Settlements
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 $6M jury award to whistleblower in Sarbanes-Oxley case
 $2.2M settlement in Dodd-Frank retaliation case and $600+M award to
whistleblower
 $193K paid to to employee punished for warning of asbestos
exposures at city school.
 $6M settlement to two physicians terminated in retaliation for
complaining about issues that included falsification of records, billing
irregularities, and unnecessary medical tests.
 $33+B recovered in lawsuits filed by whistleblowers 1986-2015 under
the qui tam provisions of the False Claims Act. The whistleblowers
were paid over $5.3 billion for their role in assisting the government in
making those recoveries.

6. Four Core Challenges
(1) Getting Employees to Ask Questions & Report Concerns
(2) Getting Leaders to Avoid Natural Tendency to Become
Defensive and “Shoot the Messenger”
(3) Ensuring a Prompt, Thorough, Impartial & Procedurally Fair
Investigation
(4) Implementing Remedial Action as Appropriate
©2016 Lorene F. Schaefer, Esq.
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7. Why Don’t Employees Report?
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 Per survey by Ethics Resource Center, 45% of US employees surveyed
said they observed misconduct in prior 12 months, but a third of them
did not report it.
 Why not?
 They don’t trust the internal system
 Belief management will not be held to the same standard
 Perception that nothing will be done
 Fear of retaliation
 Fear of alienation from peers

8. Tips for Getting Employees to Report
 Create a culture of openness and transparency where compliance questions and
concerns are encouraged and compliance is regularly discussed.
 Set the tone at the top by promoting ethical leadership and ethical leaders
 Promote leaders who are open and transparent - who demonstrate a strong
commitment to encouraging employees to ask questions and raise compliance
concerns
 Add regular compliance discussions to staff meetings
 Implement an annual “Bottoms Up” compliance review process
 Publicly thank, praise and reward employees who raise compliance concerns
 Have a well-communicated no retaliation policy – but don’t call it a “Whistleblower
Policy”
 Be vigilant in supporting the Reporter through the investigation and resolutions
process, especially in the first 3 weeks. Do not ignore or isolate.
 Engage in prompt, thorough, impartial and procedurally fair investigations
©2016 Lorene F. Schaefer, Esq.
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9. 4 Keys to Procedural Fairness
Voice – People want to have the chance to tell their side of a story and in their
own words to the decision maker.
Neutrality – People want to feel that the decision maker is making the decision
based on facts and rules and not the decision maker’s own personal
opinions. They also want to feel that the rules are applied consistently
across people and cases.
Respect – People want to feel that their concerns are taken seriously by the
decision maker and that they treated with respect when they raise their
concerns.
Trust – People want to feel like the decision maker is listening to them and
considering their views. They want to feel like the decision maker is trying to
do what is right for everyone involved and that the decision maker is acting
in the interests of the parties and not in the decision maker’s self-interest.
©2016 Lorene F. Schaefer, Esq.
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10. Why Do Leaders Retaliate?
 Leaders are human too – only natural to want to get back at someone if they
feel attacked or accused of wrong doing
 Fear and a sense of self-preservation – “fight or flight” mentality
 They don’t understand or trust the internal system and fear a “rush to
judgment”
©2016 Lorene F. Schaefer, Esq.
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11. Tips for Mitigating Leader Retaliation
 Foster a culture where compliance questions and concerns are common
 Train them on what constitutes prohibited “retaliation” under your policy
 Add compliance discussions to staff meetings
 Implement an annual “Bottoms Up” compliance review process
 Publicly thank, praise and reward employees who raise compliance concerns
 Have a well-communicated no retaliation policy – make clear that retaliation will not be
tolerated in the workplace and outline the steps a company will take if an employee alleges
such retaliation occurs.
 Be vigilant in supporting the accused Leader through the investigation and resolutions
process. Do not ignore or isolate.
 Engage in prompt, thorough, impartial and procedurally fair investigations
 Ensure extra review and support of Leader in any subsequent employment actions involving
Reporter
©2016 Lorene F. Schaefer, Esq.
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12. Prompt, Through & Impartial Investigations
 These three elements are the minimum legal
requirements of an investigation into a
compliance concern
 Best in class employers also strive for
“procedurally fair” investigations
©2016 Lorene F. Schaefer, Esq.
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13. Why Strive for a “Procedurally Fair” Investigation?
 Employees prefer to resolve their concerns internally and privately.
 Employees will report their compliance concerns first internally if
they perceive their organization’s investigation and resolution process
as procedurally fair.
 Employees will accept the outcome of an internal investigation – even
when the outcome is disappointing or legal constraints limit what the
organization can tell the individual about the outcome --- IF the
individual perceives the investigation and resolution process as
procedurally fair.
©2016 Lorene F. Schaefer, Esq.
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Key Takeaways from Procedural Fairness Research

14. What is a “Procedurally Fair” Investigation?
 The employer has established procedures for investigation and resolution of
reports. Those established procedures are clearly explained.
 The employer consistently follows its established procedures.
 The investigator is perceived as neutral and conducts the investigation in a
neutral and unbiased manner.
 The reporting and accused employee(s) are given ample opportunity to tell
their side of what happened and in their own words to the investigator.
 The investigator treats all investigation participants with dignity, respect, and
concern for their well-being.
 The investigator takes into account the issues raised by all parties in
analyzing the information gathered.
©2016 Lorene F. Schaefer, Esq.
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15. Questions?
Thank you.
Questions?
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16. Get in Touch
Lorene F. Schaefer, Esq.
Email: Lorene@WinWinHR.com
LinkedIn: https://www.linkedin.com/in/loreneschaefer
Twitter: https://twitter.com/WinWinHR
©2016 Lorene F. Schaefer, Esq.
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17. References
• Ethics Resource Center (2013) Encouraging Employee Reporting
Through Procedural Justice. Arlington, VA: Ethics Resource
Center.
• Blader, S., & Tyler, T.R. (2003). A four component model of
procedural justice: Defining the meaning of a “fair” process.
Personality and Social Psychology Bulletin, 29, 747-758.
• Ethics Resource Center (2012) Inside the Mind of a Whistleblower.
Arlington, VA: Ethics Resource Center.
©2016 Lorene F. Schaefer, Esq.
All rights reserved