Legal Risks of Retaliation: How to Handle Employee Complaints Safely
When an employee brings forward a compliance concern, they’re engaging in what the law defines as protected activity. This might involve reporting a potential violation of hospice regulations, concerns about Medicare fraud, or even raising issues about unsafe working conditions. These are rights guaranteed under various laws, like the False Claims Act, OSHA protections, and Title VII of the Civil Rights Act, which protect employees who speak up.
In responding to employee concerns, there is a fine line between addressing workplace concerns and crossing into retaliation territory. Retaliation isn’t always a blatant act of revenge. Sometimes, it’s more subtle, even subconscious. Sometimes management at the hospice agency may feel frustrated or betrayed by an employee’s complaint and – without realizing it – allow those feelings to influence their decisions. Maybe the employee was already struggling with performance, or maybe there were pre-existing tensions on the team. But when an adverse action—like firing, demotion, or cutting hours—happens shortly after a complaint, it’s easy for that decision to be seen as retaliatory, even if it wasn’t intended that way.
What is Retaliation?
To clarify what retaliation means, it’s any adverse action taken against an employee because they engaged in protected activity. Timing is a major red flag here. If an employee files a compliance report and is terminated shortly after, it raises questions. Even if you feel justified in your decision, the timing alone can look suspect to a court, regulatory agency, or even the employee’s peers.
What are the Consequences of Retaliation
And the consequences for retaliation? They’re not just legal—they’re also reputational. If a claim is brought against an agency, the agency could face:
- Reinstatement of the employee to their position, even if you’ve moved on.
- Back pay, damages, and legal fees, which can quickly add up.
- Regulatory scrutiny, which might open the door to deeper investigations into the agency’s practices.
- And, perhaps most damaging, the perception that we don’t care about compliance or employee rights. That’s not a message we can afford to send.
From the employee’s perspective, they have a number of options if they feel they’ve been retaliated against. They might file a complaint with OSHA, EEOC, or state regulators. They could seek legal action for wrongful termination or take their concerns to external auditors or even the media. Once that door is opened, the hospice agency loses control of the narrative.
How Can You Avoid Retaliatory Behavior?
So, what can you do to avoid even the appearance of retaliation? Here’s are some suggestions:
- Document everything: If there are performance concerns or other issues unrelated to the complaint, make sure there’s a clear, consistent record. This documentation can be your best defense.
- Separate decision-making: If you’re in the middle of handling a compliance complaint, let someone outside the situation—like your compliance officer or HR—review any proposed actions against the employee.
- Follow established protocols: Deviating from your normal policies, especially when dealing with someone who has raised a complaint, can make it look like you are targeting them.
- Train your leaders: Everyone in management needs to understand what retaliation looks like and how to avoid it.
Leadership sometimes expresses concerns about employees “stirring up trouble” or raising issues for self-protection. But the law doesn’t distinguish between “valid” and “troublesome” complaints. Protected activity is protected activity, full stop.
Take a step back. If you’re ever considering taking action against an employee who has engaged in protected activity, discuss it first with your HR or compliance team. Together, you can ensure the decision is based on legitimate, well-documented reasons and not influenced—even unconsciously—by the complaint itself.
At the end of the day, your goal is to serve patients and families with integrity and compassion. That means creating a culture where employees feel safe to speak up about compliance issues without fear of retaliation. Protecting that culture isn’t just about avoiding lawsuits—it’s about doing what’s right for your team, your agency, and the people you care for.
