Sometimes people feel the only way to be heard is through a lawsuit. They feel intimidated and bullied by an employer or a co-worker and it seems the only way to get people to pay attention to their rights is to threaten to sue.
Sometimes that’s the only recourse.
Deciding to Sue for Workplace Retaliation
When it comes to employment law and the areas of employment discrimination and workplace retaliation, seeking legal advice early on in the process may prove to be invaluable to you in the long run. Most employers will seek legal advice before making significant decisions regarding your employment status particularly when their analysis of the issue suggests there may be the basis for a legal challenge to their decision.
Whether the filing of a lawsuit is an option available to you, or there or other and perhaps better option, is something you need to consider with the benefit of having an employment attorney on your side.
Generally speaking, before you can file a lawsuit alleging unlawful retaliation in the workplace, you must file a charge alleging the facts that support your claim that action was taken against you because you engaged in protected activity (such as making a complaint that you were being harassed based on your sex, or complaining about workplace safety issues, or participating in an investigation of the company for its unlawful activities.) You have to identify the appropriate agency to file your charge with.
For example, you may file a complaint with the United States Equal Employment Opportunity Commission (EEOC) and/or the Florida Civil Rights Commission or OSHA, which administers many laws which prohibit retaliation, depending on the circumstances of your claim. The time period you have to file the charge is limited and varies depending on your specific circumstances.
There may be advantages to where you file and when you file and the content of that charge is always important as it will govern the scope of your claims. All of these questions and issues may seem overwhelming but they do not need to be. You should ask for the advice of an experienced attorney from the outset to help you navigate these often confusing waters. The minute your employer knows the EEOC is doing an investigation of the incident(s), they will contact their attorney. They’ll want someone involved from the beginning and you should too.
Have more questions about retaliation in the workplace? Get our free Guide, When Good Deeds Are Punished: Retaliation in the Workplace.
What Do I Do If I Think I’m Being Retaliated Against?
In 2015, 40,000 charges of retaliation were filed against employers with the EEOC. Charges of retaliation made up more of the charges filed than any other form of discrimination or harassment, so if you’re trying to convince yourself it’s not happening, you may want to reconsider?.
What can you do to hold your employer accountable for its unlawful retaliatory acts?
Take Notes.Take notes on the negative employment action that you’ve experienced as a result of asserting your opposition to a discriminatory act or participating in other protected activity. You’ll eventually need to prove that your employer knew that you engaged in a protected activity, so capturing all of the information while it is fresh in your memory is best.
Contact a Retaliation Attorney.While this is not required, keep in mind your employer will have one. A retaliation attorney can help give you an idea of what you need and what you can expect. Most will do an initial consultation to better understand what you’ve been dealing with.
File a Charge with the Appropriate Agency.In most cases you must file a charge of retaliation with the appropriate agency such as the EEOC or the Florida Commission on Human Relations before you can bring a lawsuit against your employer. After you’ve filed, your employer will be notified by the agency and asked to respond. At this point, the agency will either:
- Try to settle the claim
- Ask your employer to work it out with you through mediation
The administrative process can be long and drawn out (sometimes for years) but there are opportunities if you are represented by counsel to engage the employer’s representative in early discussions and negotiations throughout the administrative process to resolve the dispute, identify the issues, and pave the way for settlement or a faster route to the courthouse.
Exhaust Your Administrative Remedies
Generally, you cannot file a lawsuit until you have met your obligation to exhaust your administrative remedies. This may mean you have filed a charge and now have a right to sue letter in hand. Or, a sufficient period of time passes with no action by the agency, in which case you can file a lawsuit even without that right to sue letter.
For most employment-based retaliation claims you can only proceed with a lawsuit AFTER you satisfy the administrative process but there is a lot you can do during that process to resolve your claim- even when the agency moves slowly- an experienced employment lawyer will use the time wisely to communicate your claims to the employer to try to resolve your dispute.
There are some retaliation claims that can go directly to court. These include retaliation for complaining or filing an overtime wage dispute and retaliation for taking leave under the Family & Medical Leave Act.
If you believe you’re being retaliated against because you were engaged in a protected activity, find out your legal rights. At Wenzel Fenton Cabassa, P.A., we only work for employees. We can help you confidently navigate the complicated waters of a workplace retaliation claim.