If you think you are a victim of workplace retaliation, the first step is compiling the reasons why and the proof involved in the situation. But what constitutes good proof? What will help your argument and how should it be collected? While that may vary on a case-by-case basis, there are some particulars attorneys and the Equal Employment Opportunity Commission (EEOC) will be looking for.
Follow these tips for stronger workplace retaliation documentation:
Proving Workplace Retaliation
Record How You Reported It
Prove Your Boss Knew
Keep a Paper Trail
You don’t have a workplace retaliation claim without being able to prove you participated in a protected activity and your employer knows about it. That’s why the first piece of proof you need is related to the actual reporting of an unlawful act or participation in protected activity.. Did you file a complaint with the employer or a third party electronically, make a call, or report it to HR and fill out documentation? Were you a witness in an EEOC investigation? However you did it, you need proof that you were part of a protected action.
Next, you need to prove your employer knew that you engaged in this protected activity. If you reported it through HR in written form then it is fairly easy to show the employer was on notice you engaged in certain activity. That may not be enough if down the road. Try to pin down how the person who is taking negative action toward you knew about your protected activity BEFORE the retaliatory action was taken against you.
However, if you reported a complaint anonymously, that may be the safest course of action but you must be able to prove s/he found out. This could be through office rumors, you sharing it with a co-worker who then shared it, or telling your boss directly. Sometimes the source is so obvious even an anonymous tip will be sufficient. If you have email proof that s/he knew or a co-worker who will vouch for you, print off the email or collect your co-worker’s home contact information. Sometimes it’s difficult to obtain personal information later particularly if retaliation turns into firing or your former co-worker becomes fearful of contact with you in order to protect his/her own job.
Assume that at some point you will be ”cut off” from company computer access. While this may not happen soon, you should be prepared if they let you go to retrieve evidence from a saved file which is NOT connected to the company servers, email account or other records. Print off any communications/emails that show a punishing tone or negative employment activity.
Florida is a “two-party” consent state, which means you can only record conversations if both parties are aware of it. For this reason, it is advisable to collect information by printing off emails not by trying to record your employer. Documentation to keep in your records of retaliatory behavior may include:
- Employment reviews for you before and after the protected action.
- Notice of demotions or negative employment actions.
- Emails from coworkers about conversations they had with your boss (or directions given from your boss) about negative employment actions against you.
- Notes on harassing conduct by your boss or changes in his/her demeanor that adversely affect the working relationship.
- Evidence of your boss micromanaging everything you do when you used to be allowed to work autonomously.
Finally, gather historical information as well because you will need to show the line of demarcation between what used to occur and what occurs now that you have been a part of the protected activity. These could include emails from your boss praising your work prior to the incident.
Keep in mind, your HR department may be the very department which can help you survive a bad situation at work. If the HR department does their job, you may be able to oppose unlawful activity and keep your job without suffering retaliation. They can help you get to the bottom of the cause.
Once HR requires management to address the issues and you’ve made it clear you want it to stop, if it persists, you may want to consult an employment attorney to better understand your options.
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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.