Employment Law Guest Posts

Discrimination, Workers’ Comp Claims, Workplace Safety, Etc.: Situations Where Employers Are Not Allowed to Retaliate Against Employees

For employees, speaking up at work can require courage. An employee who reports harassment, files an injury claim, or warns about a safety hazard may be worried about how this could affect their job. That fear is not unfounded. Claims related to retaliation are some of the most common issues addressed by the U.S. Equal Employment Opportunity Commission (EEOC), with more than 40,000 of these claims being filed each year.

It is illegal for an employer to punish an employee for taking part in a legally protected activity. Retaliation can happen when an employer takes a negative action against a worker because that worker exercised a right that is protected under the law. As long as complaints or other activities are handled honestly and reasonably, an employer generally cannot punish a worker for these activities.

What Activities Are Protected From Retaliation?

Discrimination and Harassment Complaints

Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Equal Pay Act all prohibit retaliation by employers against employees. Workers are protected when they complain about discrimination or harassment, file a charge with the EEOC, serve as a witness in an investigation, request a disability accommodation, or refuse to comply with an order that they believe is discriminatory.

Workers' Compensation Claims

Workers' compensation provides benefits for employees who have been hurt on the job, and it can cover their medical bills and lost wages. It is illegal for an employer to fire or otherwise punish an employee for reporting a workplace injury or filing a workers’ comp claim. Illegal forms of retaliation may also include refusing to allow a person to return to their previous position after they have recovered from a workplace injury.

Workplace Safety Reports

The Occupational Safety and Health Act protects employees who report unsafe conditions in the workplace, file complaints with the Occupational Safety and Health Administration (OSHA), report work-related injuries, or take part in safety inspections. This law is meant to prevent employers from discouraging employees from addressing issues that could affect their safety while working.

Whistleblower Activities

A whistleblower is someone who reports illegal or dishonest conduct by their employer. Federal protections for whistleblowers include:

  • The Sarbanes-Oxley Act, which protects employees of public companies who report fraud against shareholders
  • The Dodd-Frank Act, which protects people who report securities violations to the Securities and Exchange Commission
  • The False Claims Act, which protects workers who report fraud against government programs, such as Medicare billing fraud
  • The Whistleblower Protection Act, which covers federal government employees who report waste, abuse, or illegal activity

Other Protected Activities

Additional laws protect employees who take leave under the Family and Medical Leave Act (FMLA), complain about unpaid wages or overtime under the Fair Labor Standards Act, or join with coworkers to discuss pay or working conditions under the National Labor Relations Act.

What Does Employer Retaliation Look Like?

Retaliation is not limited to firing an employee. Any actions by employers that might discourage workers from making complaints or participating in lawful activities can count as retaliation. Common examples include:

  • Termination, demotion, or pay cuts
  • Being passed over for a promotion or raise
  • Negative performance reviews after a history of good ones
  • Reduced hours or less desirable shifts
  • Transfer to a worse position or location
  • Increased monitoring, exclusion from meetings, or a hostile attitude from supervisors
  • Threats against workers, including reporting a person’s immigration status to authorities

The timing of an employer’s actions can determine whether they may qualify as retaliation. When negative treatment begins shortly after an employee makes a complaint, this could serve as evidence that an employer had a motive to retaliate against the employee.

What Can Employees Do if They Face Retaliation?

Document Everything

Keep a written record of what happened, including dates, names, and what was said. Save emails, texts, performance reviews, and schedules.

Report Retaliation Internally

An employee may report retaliation to a human resources department or follow a company's complaint process. However, there are some situations where a person may not feel safe when reporting certain issues, or they may be concerned about whether their reports will be taken seriously or handled correctly.

File a Complaint With the Right Agency

Different agencies may address different types of retaliation. Specific deadlines will often apply when filing complaints. EEOC charges must generally be filed within 180 days, or 300 days in places with a state or local agency that enforces a similar law. OSHA safety retaliation complaints usually must be filed within 30 days. Wage complaints may be filed with the Department of Labor, and labor organizing complaints may be addressed by the National Labor Relations Board. Claims may also be filed with state agencies.

Determine Whether Legal Action Can Be Taken Against an Employer

Some employees may be able to file lawsuits against employers, while others may need to file a complaint with a government agency first. A lawsuit or claim may allow a worker to recover back pay for wages lost because of retaliation, as well as compensation for emotional distress or other damages. An employer may be required to reinstate an employee or take other actions to address the harm done by retaliation.

How Can Employers Avoid Retaliation Claims?

Employers may be able to lower the risk of accusations of retaliation, complaints to government agencies, or lawsuits by:

  • Adopting a written anti-retaliation policy and sharing it with every employee
  • Training managers to recognize protected activities and respond appropriately
  • Keeping complaints confidential
  • Basing discipline on clear, documented, and consistent reasons
  • Reviewing any negative actions against an employee who recently made a complaint

Responding to a Retaliation Claim

If an employee claims that retaliation has occurred, an employer will need to take these claims seriously and avoid any actions that could be considered further punishment for an employee’s protected actions. Preserving records related to employee discipline, conducting fair investigations, and responding to requests made by government agencies can help ensure that claims will be handled correctly. An employer should be ready to show that there were legitimate, non-retaliatory reasons for any decisions that were made.

How Can an Attorney Help With a Retaliation Claim?

Retaliation cases may involve overlapping state and federal laws, different government agencies, and strict deadlines. For employees, an attorney can help determine whether an activity was legally protected, gather evidence of illegal retaliation, file complaints with the correct agencies, and work to ensure that an employer will be required to pay compensation or take other actions. For employers, an attorney who handles employment law can review internal policies, provide guidance on decisions involving employees who have raised complaints, and provide representation when responding to complaints or lawsuits.