Nonprofits Insurance Alliance

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What You Need to Know About Retaliation Claims

Since the United States Equal Employment Opportunity Commission (EEOC) issued its enforcement guidance surrounding workplace retaliation last summer, employers have been on notice to exercise caution when taking adverse action against an employee following protected activity.  Absent clearly documented evidence of a legitimate business reason for adverse action, like termination, such action taken by an employer following an employee’s participation in protected activity may be deemed as retaliatory, leaving the burden on the employers to defend their actions. Protected activity includes such things as:  requesting an accommodation; taking a leave of absence; or participating in an investigation.

Laying out a three-prong test, the EEOC tells us that in order to establish a claim of retaliation, employees merely need to show that: 1) they were participating in protected activity; 2) they suffered some kind of adverse employment action; and 3) there is a causal link between the activity and employment decision.

Unfortunately, even employment actions taken with no retaliatory motive and made in good faith may undergo scrutiny if an employee feels they are being punished. Therefore, while the first two prongs of the EEOC’s test may appear straightforward, the following should be considered as best practices in order to minimize risk and disconnect the link between protected activity and subsequent adverse employment action:

  • Maintain a written policy that is made available to all employees regarding zero tolerance for retaliation, including ways an employee may report actual or suspected retaliatory conduct.
  • Have written employment policies and consistently apply them.
  • Review policies and practices to ensure employees are not deterred from engaging in protected activity.
  • Train managers and supervisors on your anti-retaliation policy and how to handle employee discipline following protected activity.
  • Promptly and thoroughly investigate all complaints.
  • Accurately report job performance on performance evaluations. A below-average performing employee should not receive all superior marks. Use factual examples to support less than satisfactory ratings.
  • Clearly and thoroughly document business decisions your nonprofit may make that employees may consider as adverse (e.g., moving office space or eliminating positions).
  • Document job-related reasons for all actions, including poor performance or unwillingness to perform duties, to link adverse actions to poor performance rather than protected activity.
  • Ensure employees are aware of their job requirements by having up to date job descriptions, acknowledged by the employee.
  • Evaluate options in lieu of termination or discipline, including coaching, performance improvement plans, and additional training, especially if the adverse action is close in time to the protected activity.

Employers should also be aware that while retaliation may be as obvious as a termination, it can also be less recognizable, such as with overlooking an employee for a promotion, directing another employee to engage in harassment or retaliatory conduct, and criticizing or questioning an employee for filing a complaint.

Because the EEOC has linked adverse action to protected activity despite the passage of years between events, it’s critical for employers to always document and consistently apply policies.

While retaliation is prohibited conduct under state and local laws, employees also can find protection under Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act (Rehabilitation Act), the Equal Pay Act (EPA), and Title II of the Genetic Information Nondiscrimination Act (GINA).

 

*Note: While this article focuses on the employment relationship, retaliation is prohibited against job applicants and volunteers. 

Related Links:

The EEOC Enforcement Guidance on Retaliation and Related Issues:  https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm

Questions and Answers:  Enforcement Guidance on Retaliation and Related Issues:
https://www.eeoc.gov/laws/guidance/retaliation-qa.cfm

Small Business Fact Sheet: Retaliation and Related Issues:  https://www.eeoc.gov/laws/guidance/retaliation-factsheet.cfm

Driving Safety

Motor vehicle crashes are the leading cause of unintentional workplace deaths in the United States. The statistics are staggering. Every eight seconds someone is seriously injured on our roadways and someone is killed every 15 minutes. New preliminary data from the National Safety Council estimates that as many as 40,000 people died in motor vehicle crashes in 2016, a six percent rise from 2015. If those numbers are confirmed, it would be a 14 percent increase in deaths since 2014 — the biggest two-year jump in more than five decades!

Although you cannot control the actions of other drivers, you, your employees and your volunteers can develop defensive driving skills that will help avoid the dangers caused by other people’s poor driving behavior.

  • Drive Defensively. Be aware of what other drivers are doing and expect the unexpected. Maintain a two-to-three second cushion between you and the vehicle in front of you.
  • Pay Attention. Avoid distractions when driving. Never use a cell phone behind the wheel – not even hands-free. The National Safety Council states: “Research shows the brain remains distracted for 27 seconds after dialing, changing music, or sending a text using voice commands.”  Pre-set the navigation system and music playlists before driving.
  • Slow Down. Speeding reduces how much time a driver has to react in an emergency situation to avoid a crash. According to the National Highway Traffic Safety Administration, it was a factor in 27 percent of all traffic deaths in 2015. Allow plenty of time to reach your destination and adjust speed as needed for weather conditions.
  • Yield the Right of Way. Drivers must often make quick decisions about who has the right of way and when to yield. Remember, the right of way should always be given and it’s not something a driver should take for granted. When two or more drivers approach a situation where someone is supposed to yield right of way, all drivers should be prepared to yield. Whoever has the last clear chance to avoid a collision has an obligation to do so.
  • Use Caution When Passing. Be careful to accurately estimate the time and space needed to safely pass the vehicle in front without interfering with any other vehicles in the vicinity. Always use turn signals to indicate intentions. When passing, especially at night, a driver should be able to see both headlights of the vehicle being passed in the rearview mirror before moving back into the original travel lane.

Individuals driving on behalf of your organization, whether in an agency-owned vehicle or a personal vehicle, should be exercising caution and using good judgment while driving. Every driver is ultimately responsible for controlling his or her vehicle to avoid a collision with another vehicle, object or person. A defensive driver can avoid crashes and help lower their risk behind the wheel.

 

Indemnification Agreements with Third Party Vendors or Nonprofit Program Funders

Many nonprofits contract with third party vendors to provide services essential to their operation as a business. These services run the gamut and typically include services such as janitorial, technological systems, building contractors, and transportation providers or something occasional like a bounce house provider for your fundraiser. A key to evaluating the risks of your nonprofit’s operation is to assess responsibility for liabilities that may arise in the provision of services by third parties. For example, who is responsible for physical injuries to a janitor? Or for replacing a window broken by the building contractor? What about for a serious vehicular accident involving your transportation provider and your clients, or an injury to a participant if the bounce house is defective?

The key component in your nonprofit’s risk management plan is to make sure that your nonprofit has appropriate and adequate insurance to cover all its operations. Additionally, in your agreements with vendors, it is essential to require that they are legally responsible for any claims or damages arising out of the work they perform. Vendors can be held legally responsible by way of an indemnification agreement in the contract for their services. The contract should also specify which type of insurance they must maintain and require that they provide satisfactory proof of insurance. For example, you would want to make sure that a transportation service has general liability, workers’ compensation and sufficient auto insurance coverage to address any potential losses.

An indemnity agreement is a contractual promise by which one person or entity accepts full legal responsibility for losses related to certain specified activities. So if there is a claim or lawsuit arising from an injury or loss as a result of the vendor’s activity, the vendor, typically through their insurance carrier, is responsible for any damages or liability, typically including attorney’s fees.  Indemnity agreements are an effective tool for transferring the risk associated with a particular activity and establishing clear responsibility in the event of a loss, and are strongly recommended to be in all of your contracts with third party vendors.

It’s also important to review all your nonprofit’s contracts with funders, typically governmental entities, for programs such as counseling, after-school care, education and outreach or job training. It is critical to evaluate the scope of any indemnification agreements in these program contracts whereby your nonprofit is accepting the risk of any losses in the operation of the program. These indemnification agreements are transferring what can be a substantial monetary liability to your nonprofit which should be evaluated before you sign the contract and discussed with your insurance broker to confirm that adequate insurance coverage is in place to address this additional risk. One of our nonprofit members is currently faced with a claim exceeding 2 million dollars because it agreed to an indemnification clause providing the “broadest possible coverage” to a county, even though the damages were primarily related to negligence by county workers. Nonprofits should review these indemnification agreements and negotiate the terms with their funders if they attempt to transfer a risk that is unacceptable or beyond the ability of your nonprofit to mitigate or control.

 

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