Q: I have just received notification from the Michigan Department of Civil Rights (MDCR) that they are investigating a claim of retaliation filed by one of my employees. About three months ago, this employee (a hygienist) told me that a patient had repeatedly made inappropriate comments and tried to touch her. I took immediate action, investigated, found that he had in fact made the comments, and then removed him as patient of record. I notified the employee of the action I took. Then, at a staff meeting, I told everyone that if anything occurred with any other patient that they were to report it immediately and that I did not tolerate this behavior. I thought the issue was done.

Over the last few months, my hygiene activity slowed down and it became apparent that I did not need two full time hygienists. So I moved the hygienist with the least seniority to part-time, well she was the woman who complained about the harassment. She was upset and told me that she thought this decision was made because of the harassment incident. I assured her that this was not true, I thought she believed me, but now I have this complaint from the MDCR. Now what do I do?

A: Claims of retaliation are growing in popularity. The law is written to protect employees who may make a claim of harassment or discrimination. It is essentially like a whistleblower protection. There cannot be any retaliation or even perceived retaliation against an employee who has made a claim of harassment or discrimination.

The most important thing you must do is treat her as you have always treated her. You should not discuss this claim with her, you should not complain to her of others about the claim, and you should make sure that you do not treat her in a manner that could make this claim worse.
It appears that your action thus far is solid regarding the claim of harassment. You investigated the claim and you acted based upon the re suits of the investigation. You now need to build your defense for the claim of retaliation.

Your notification from the Michigan Department of Civil Rights requires that you provide a response within a certain number of days. They will include an outline of what should be included in your response. Pay attention to this outline. Your initial response is important. You want to set the foundation of this case with this document. You need to make sure that you include all facts, and supporting exhibits. This may include financial information, schedules, etc.

This first step to this is to show that you acted quickly and thoroughly when the claim of harassment was made. Then you need to show that the decision you made to reduce her hours was due solely and completely to the economic conditions of the practice.

The focus of the claim is not the harassment incident, but the claim that you retaliated by reducing hours for making the claim. Therefore you need to prove that you made the decision to reduce her hours for financial reasons used seniority, a perfectly acceptable criteria, to make the business decisions. If you have any evidence of past incidents where employees may have complained and were not retaliated this may be helpful.

You need to include documentation that will support your stand, such as the dates of hire for each employee, the schedule that shows the slowdown in the hygiene activity, revenue statements, etc.
Then tell the story in a narrative form, in a manner that is easy to follow and read, attach the exhibits that support the narrative statements.

Finally, hire an employment law attorney to review the document in advance to submission. This will be well worth the cost, as they know how to defend this would be wise to hire an attorney specializing in employment law to review your response prior to submission.

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