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Jenkins Fenstermaker, PLLC

325 Eighth Street

Huntington, WV 25701-2225

Phone (304) 523-2100

Toll Free (866) 617-4736

By Jenkins Fenstermaker PLLC Of Jenkins Fenstermaker, PLLC on 02/21/2019
WV Employer Retaliation Defense and Prevention

West Virginia (WV) employers are required by law to provide a workplace that is free from discrimination and harassment. Solidly crafted and enforced employment policies can create a culture that values diversity and deters discrimination. However, when litigation is threatened or arises, employers in the Mountain State may need to develop a WV employer retaliation defense strategy.

Employers sometimes hesitate to take action against disruptive or difficult employees out of fear of employment retaliation cases. Proper legal preparation, guidance, and defense strategies aid in preventing retaliation claims and can eliminate the need for businesses to continue to employ non-performing or incompetent employees.

What Businesses Need to Know about WV Employer Retaliation Defense and Prevention

Employees are protected by federal, state, and local laws from suffering adverse employment consequences-such as discrimination in hiring, firing, and promotions-on the bases of race, sex, age, religion, and disability, among others. Employees are also protected from workplace harassment and hostile work environments as well as retaliation for engaging in legally protected conduct, such as filing a workers' compensation claim. The manner in which an employer reacts to an employee's claim of discrimination, harassment, or hostile work environment presents yet another possible allegation: retaliation.

Even when an employee's claim is not well-founded, employers can find themselves defending retaliation claims if adverse action is taken against complainants; this is particularly true if the alleged adverse action takes place close in time to the employee's complaint.

Employers need to be aware that firing is not the only action that can result in employment retaliation claim. Allegations of retaliation may include unfavorable work assignments, social exclusion, poor performance reviews, and other negative treatment. These accusations may also be made by people other than the complaining employee, such as those associated with the employee or potential witnesses to the employee's claims.

EEOC Retaliation Claims in WV

The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the regulations against discrimination set forth by federal law. Employees filed 1,272 charges of discrimination, including 410 EEOC retaliation claims in WV, in fiscal years 2009 to 2017. That's an average of 141 discrimination claims per year, and many of these claims assert discrimination in multiple forms.

Fortunately, employers can take affirmative steps to greatly reduce the risk of actionable discrimination or retaliation in the workplace. The EEOC offers resources for employers, including specific guidance for small businesses. An attorney with employment law experience can also be an excellent resource for company management, from developing policies to defending retaliation claims.

A review of the West Virginia Human Rights Commission's website particularly relevant rules and regulations can give employers strong insight into how to implement solid employment practices, as well.

WV Employer Retaliation Defense Strategy

WV employer defense attorneys can recommend strategies for preventing retaliation claims. Recommendations are made on a case-by-case basis, but such strategies might include carefully documenting incidents and performance, mediating disputes, and addressing the employee's concerns in a respectful, professional manner.

Employers can't be expected to retain underperforming employees due to fear of discrimination and retaliation claims. The potential threats presented by an incompetent employee-from lost productivity to safety hazards to poor morale-require action on the employer's part in many cases. WV retaliation defense lawyers can advise employers in how to discipline, reassign, or terminate employees while mitigating risk.

The stakes are high in retaliation claims. Employees who are wrongfully terminated for speaking up about discrimination or harassment may be entitled to one of several remedies such as reinstatement, back pay, attorney's fees, expert witness fees, and court costs. In some cases, the employee may even be entitled to punitive damages.

Whistle-Blower Claims and WV Employer Retaliation Defense

Retaliation claims can also occur when an employee alleges that he or she suffers an adverse employment consequence in violation of federal or state whistle-blower protections. A whistle-blower is someone who makes a good faith report of alleged employer misconduct to an enforcement authority.

Whistle-blower protection laws exist to ensure that dangerous and illegal situations in the workplace don't go unreported due to fear of retribution. While the intention of these protections is admirable, the laws can be abused and purported whistle-blowing can also be used as pretext for retaliation. Businesses should take care to structure employment and disciplinary policy and procedures with consideration of the potential for whistle-blower retaliation claims.

Preventing and Defending Retaliation Claims

Preventing and defending retaliation claims requires diligent attention to the details of the law. Employers in need of policy guidance or WV employer retaliation defense can contact Nathanial A. Kuratomi, one of the experienced employer defense attorneys at Jenkins Fenstermaker, PLLC. To schedule a consultation, contact Nate by online contact form or by calling (304) 523-2100 in the greater Huntington area or toll-free across the tristate area at (866) 617-4736.