When Is an Employee Protected from Retaliation?

When Is an Employee Protected from Retaliation?

Retaliation should never be a motivating factor for employers. While this statement may seem obvious, it’s all too easy for emotions and frustrations to cloud employers’ (and individual supervisors’ and managers’) judgment when something goes awry at the workplace. Unfortunately, it’s also easy to inadvertently appear to act retaliatory, even when that is not the case.

Beyond being a poor business decision that negatively affects employee morale, retaliation is also illegal in many cases. There are several laws protecting employees from retaliation after taking certain protected actions—we’ll take a look at the most common of them.

What Constitutes Retaliation?

First, let’s remember that retaliation can take many forms—it’s not simply firing an employee when you don’t like something they did. Retaliation can include:

• Refusal to give an otherwise deserved raise or promotion;
• Refusal to hire;
• Bypassing an individual for a good work assignment;
• Harassment;
• Threats;
• Demotion or reduction in pay;
• Unwarranted negative evaluation or reference;
• Termination;
• Refusal to provide training;
• Denial of opportunity for benefits;
• Coercion;
• Intimidation;
• Increased surveillance;
• Any adverse effect to any other term or condition of employment; and/or
• Any other action that would deter a reasonable person from pursuing their rights, even if it is subtle rather than overt.

Retaliation can also instill fear in employees—and that can be considered illegal when it interferes with an employee’s rights. In short, retaliation can be any action that has an adverse employment effect, when that action was taken as a result of an employee’s protected activity. It’s also important to note that the protected activity did not have to occur with the current employer.

When Is an Employee Protected from Retaliation?

Here are some of the instances when an employee is protected from retaliation:

• After taking workers’ compensation leave or making a workers’ compensation claim. In most states, the workers’ compensation law not only allows a claim to be made but also prohibits retaliation for doing so. Check your state laws to confirm. (Note: Workers’ compensation laws are at the state level and are not federally protected, but all states have some protection in this regard.)
• After complaining of discrimination (whether internally, to a lawyer, or to the Equal Employment Opportunity Commission (EEOC)). This protection exists as long as the claim was made in good faith, even if no discrimination is found.
  • According to the EEOC, “The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, and disability, as well as wage differences between men and women performing substantially equal work, also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.”[i]

• After complaining about harassment.

• After or during participation in an investigation of harassment or discrimination, including acting as a witness in proceedings.

• After requesting reasonable accommodation for a disability.

• After requesting a reasonable accommodation based on religion.

• Being associated with someone who is a protected individual (i.e., someone else who has engaged in protected activity).

• After requesting or taking leave under the FMLA.

• After complaining about safety violations. This is an OSHA protection.
• After reporting improper conduct. This is also known as whistleblowing. While not protected by the EEOC, whistleblowing is protected under other state and federal laws. Whistleblowing refers to calling out (publicly or privately) or turning in employers for actions like:
  • Illegal, unethical, or unsafe behaviors or workplace situations;
  • Environmental regulation violations;
  • Financial fraud;
  • Illegal workplace conditions or employment activity;
  • Violations of the Sarbanes Oxley Act (SOX), such as failure to meet Securities and Exchange Commission (SEC) or fiduciary duty requirements; and/or
  • Other corporate fraud.

Some final considerations:

• Even if an employer rectifies the situation, that doesn’t wash away the illegal retaliatory act.
• Many retaliation protections have a time frame in which the retaliation claim must be brought—and these can be quite short in some cases.
• Some state legislation offers additional protections for employees. As with all employment law matters, be sure to understand your state and local laws.

Do your managers and supervisors understand the legal ramifications of retaliatory actions? Have they been trained on how to avoid the perception of retaliation.

This article does not constitute legal advice. Always consult legal counsel with specific questions.

[i] www.eeoc.gov/laws/types/facts-retal.cfm