What is Retaliation in the Workplace?
There are times when you know you have to take a stand – when you have to do something because it’s right. It’s disheartening when people do the right thing and are not rewarded. Instead, they are maligned, harassed, or even fired.
If you have recently taken a stand involving your employer and feel you’ve suffered adverse employment consequences, you may be dealing with retaliation in the workplace. Here’s what you need to know.
Retaliation in the Workplace Explained
Retaliation in the workplace means you were a victim of an adverse employment action because you were involved in a protected activity. A protected activity is dependent on the law in question that governs it.
For instance, some laws require reporting the violation to an agency before it is considered “protected.” Meaning, telling HR about the violation would not be considered protected activity. Some states also have “play fair” laws, which require employees to tell the employer of the wrongdoing so that it has an opportunity to address the issue.
Doing so can leave an employee open to retaliation since it requires you to report it to the employer before going to an agency to file a complaint.
Retaliation is proven in four ways:
- There must be documentation that you participated in a protected activity. It is difficult if you did so anonymously.
- The employer must know you did or assume you participated in the protected activity.
- You suffered an adverse employment action (such as firing, demotion, or ineligibility for promotion).
- Your protected activity caused your adverse employment action (If you were written up and fired because you are always late, for example, this is not covered under retaliation even if you performed a protected activity.)
What Types of Retaliation Claims Are There?
Employee retaliation cases can arise from laws such as Title VII, the Age Discrimination Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Florida Civil Rights Act (FCRA), the Occupational Health and Safety Act (OSHA) and the Sarbanes-Oxley Act. Some of the most common include reporting:
- Sexual harassment
- Employment discrimination
- Workers’ compensation violations
- Public health and safety concerns
The last two are referred to specifically as whistleblower cases.
Documenting Your Employee Retaliation Case
The most valuable thing you can do if you’ve recently partaken in a protected activity is to keep a journal of communications and other details. It’s difficult to understand at the time what will be valuable to a retaliation claim and what won’t so capture anything that appears to be a negative action. You should also make notes of everyone involved in the communications in case it’s needed.
Is All Activity Protected Under Workplace Retaliation?
No. Just because your employer may be doing illegal things does not mean you have full reign to do whatever you want. For instance, if an argument that gets out of hand with a manager you are alleging behaved inappropriately, workplace retaliation laws will not protect you if you decided to assault the person physically. Workplace retaliation laws protect you from adverse employment actions, not employee misconduct.
At Wenzel Fenton Cabassa, P.A. we work to protect employee rights. If you believe you were retaliated against because you reported a violation of the law, consult one of our employment rights attorneys. The first consultation is free and it’s always confidential.
Please Note: At the time this article was written, the information contained within it was current based on the prevailing law at the time. Laws and precedents are subject to change, so this information may not be up to date. Always speak with a law firm regarding any legal situation to get the most current information available.