Workplace retaliation can feel an awful lot like bullying. It is a tool used by many employers because they know it makes people afraid to assert their rights.
If you’ve made a recent allegation against your employer or you reported,
- something that is against the law or a regulation
- a danger to public health or safety
- actions were taken against a protected class
it is illegal for your employer to take adverse employment action against you because of it.
What’s the Difference Between Workplace Retaliation and Whistleblowing?
While the two are often used interchangeably, there are some subtle differences when it comes to the law. Whistleblowing claims cover issues of public safety, wasted tax dollars, and other ways employers may be breaking a law, rule or regulation.
You, as an employee, may raise concerns about actions by the employer which violate the law and often involve non-employees (such as patient’s rights or other members of the public). it is this complaint by you that offers protection against retaliation.
On the other hand, most employment retaliation occurs because an employee complains about discrimination or some other action by the employer against an employee. For instance, if you were sexually harassed, or overheard an employee being sexually harassed, discriminated against, or any other violation of the equal employment opportunity acts, and were discriminated or retaliated against for reporting it, you may have a retaliation claim.
How to Report Workplace Retaliation
While workplace retaliation and whistleblower retaliation are slightly different by definition, how they are proved is the same. To prove whistleblower retaliation or workplace retaliation you must prove four things:
You engaged in a protected activity.
Your employer must know or at least think that you engaged in protected activity. If they are unaware, this is not a whistleblower or workplace retaliation case.
You must have experienced an adverse employment action.
Finally, you must be able to link the adverse action to your protected activity.
While telling your spouse about the issue doesn’t count, reporting it to HR does. You had to have documented and reported the alleged illegal activity. Proving this can be difficult if you reported the incident anonymously. In that case, you must be able to show that the employer somehow found out you were the anonymous tip. However, you may also have a case if your employer believed that you did engage in a protected activity, even if you didn’t.
In some cases, reporting the incident would be futile or the incident is so well known that one can impute knowledge to the employer but you still must show that somehow your employer links you to opposition to a unlawful practice or participation in protected activity.
This can include firing, being passed over for promotion, or being demoted, among other things. Without an adverse action, retaliation cannot be proved.
If you suspect that you have been the victim of workplace retaliation, you should seek the help of an employee rights attorney. An attorney can review the details behind your workplace retaliation concern and help decide whether those four conditions can be proven.
At Wenzel Fenton Cabassa, PA, we help employees understand their situation from a legal perspective. We work solely with employees, fighting for workplace justice. Call us today. Our initial consultation is free.