Blogs

Authors Lorrie Ray and James McDonough

As is typical in large organizations, the federal government often has agencies working in silos, where one agency has little interest in what another agency is doing. The Biden administration is working to correct that. The Equal Employment Opportunity Commission (EEOC), the US Department of Labor (DOL), and the National Labor Relations Board (NLRB) are expanding their inter-agency collaboration expanding, and resource sharing is underway.

Preventing retaliation is their focus, including intimidation and other actions (bullying, threats, guns used as intimidation). They are not just seeking to eliminate retaliation but also the fear of retaliation so that employees who are targets of unlawful behavior will come forward.

One group particularly susceptible to retaliation are undocumented workers. The agencies are making clear that there is a heightened commitment to social and economic justice for all workers, not just those legally authorized to work in the United States. They have case law to guide them, as many laws are enforced against employers, even when the employee is not legally allowed to work in the United States. If you are wondering why this is the case, the courts scrutinize laws that do not apply to those not legally in the United States to make sure that employers suffer the same penalties, so there will not be an incentive to hire those not legally authorized to work and avoid penalties altogether.

To move the collaboration between the agencies forward, it is likely that a complaint of unlawful activity filed with one agency will include other agencies and result in coordinated investigations. The departments are making clear that active information sharing will occur when there are unlawful practices concerning pay, retaliation, and immigration status. The EEOC, DOL, and NLRB want to make it easier for employees to seek relief and reduce the burden on employees to navigate the agencies and their areas of responsibility. The hope is that this promotes safer workplaces, timely and complete payment of wages due, and all employee rights observed.

For example, if there are workplace harassment complaints due to immigration status, after the employees complained they were not paid properly, this would be investigated by both the EEOC and the DOL. It is also true that the DOL has a Memorandum of Understanding with the Department of Homeland Security (DHS) that has the DHS stand down when the DOL is investigating or enforcing wage claims.

In light of this new era of co-operation between the agencies, we recommend actions to protect employers from being subject to these complaints.

HR Tips for Employers

Workplace Culture

Inappropriate and harmful behaviors can take root in a workplace that does not respect all employees. Creating a culture of respect and professionalism takes concerted effort and proactive effort; HR must work with leadership on this; Organizational Development services can help employers get started.

Train staff

Employers must train all employees on appropriate behaviors for their specific workplace; this class is a good first step. It is important not to assume staff have a common understanding of what behaviors are not acceptable, as this article explores. Training must also include the responsibilities of those who observe undesirable behaviors and what actions they can take; this article outlines these actions.

Model behaviors

Leaders at all levels of an organization must model appropriate behaviors; employees learn from observing their behavior that matches the written HR policy in a handbook. Bullying and intimidation in any form erode employee retention and set a tone of “anything goes” that encourages employees at all levels to misbehave to get what they want.  Individualized Leadership Coaching can help leaders improve their overall performance, so they set the desired example.

Awareness

HR professionals need to be situationally aware of their workplaces to identify potential red flag behaviors and attitudes and stop them. This awareness includes physically visiting workplaces to observe employee interactions, conducting employee surveys, and monitoring voluntary employee exits from the organization and the reasons given for the exit. Conducting periodic reviews of turnover to spot troubling trends is ideal.

Hiring and Promotions

Selecting the right candidate for hiring and promotions is an important step toward creating a respectful workplace environment. Pre-employment screening (including testing and assessment services) can support your efforts to build a respectful workplace culture by avoiding problematic personnel selection decisions.

Employers who take proactive steps to discourage misbehavior will reduce the risk of claims of retaliation and mistreatment; equally important, they will encourage higher employee engagement and productivity. Employers Council members can access an array of effective interventions to reduce the risks of harmful workplace behaviors that can lead to problematic federal investigations and disciplinary action.