A company can face a number of legal issues when an employee reports retaliation. The most important step in a legal claim is to gather evidence. This can be direct or circumstantial.
Imagine you blew the whistle on illegal or unethical behavior in your workplace—such as discrimination, wage theft, or safety violations—and a few weeks later you receive a pink slip. This scenario is all too real for thousands of workers each year.
What Is Retaliation?
Retaliation is any negative job action that your employer takes to punish you after you engage in a legally protected activity. Such activities include filing or participating in a discrimination or harassment complaint; complaining about unsafe working conditions; and testifying at an EEOC or OSHA investigation.
The law protects you from retaliation in both federal and state workplace laws. It is illegal for your boss to fire you, demote or transfer you, dock your pay, or cut the number of hours that you work. It is also against the law for your boss to deprive you of any benefits or opportunities that you earned. Examples of this include cutting your travel or membership benefits, stopping a bonus program, or refusing to promote you for a managerial position.
Even more subtle actions can be retaliation, too. For example, your manager may decide to change your shift or reassign you to a position that doesn’t suit you or your family schedule. This could be retaliation because your boss knows that this will make your life more difficult, especially if you were the one to file an employment-related complaint. Documenting every punitive discussion and ensuring that supervisors have the approval of the human resources department before taking any disciplinary action can help you prove workplace retaliation. The discovery process that accompanies any investigation or civil lawsuit can reveal your employer’s motive and intent as well.
How Do I Know if I Have a Case?
A worker may have a strong case for unlawful retaliation if she can prove that she engaged in a “protected activity,” such as reporting workplace discrimination or harassment, participating in an investigation of a statutory violation or whistleblowing. She must also show that her employer took a materially adverse action against her in reprisal for her protected activity. This can include being fired, demoted, or receiving a negative performance review. It may also include being ostracized or denied opportunities such as training or mentoring. Some retaliation claims require that an employee first file a complaint with a government agency before filing a lawsuit, such as when claiming discrimination or retaliation under the EEOC, or when retaliating against a whistleblower under Sarbanes-Oxley law.
It is important to keep track of as much evidence as possible of any retaliatory behavior. Keeping a journal can be very helpful, and should include what was said, when and by whom. It is also important to preserve any historical information prior to the retaliatory behavior, such as positive performance reviews. A skilled retaliation attorney can use this information during the litigation process to establish the link between the retaliatory conduct and the protected activity, such as blowing the whistle or complaining about illegal or unethical behavior at work. This is a vital element in winning the case and obtaining damages.
What Can I Do to Protect Myself?
It’s important to report any retaliation that you see or experience. If your company has a policy on how to do this, follow it carefully. Ideally, report the incident to HR in person (or over a phone call or video conference) and document everything that occurred including any witnesses. Keep copies of the documentation at home or on your own personal computer so that if needed you can use it in court.
Retaliation can be subtle, so it’s important to pay attention and look for patterns. For example, if your boss demotes you for no apparent reason shortly after you make a complaint about him, that could be retaliation. However, sometimes retaliation is more obvious, such as when an employer makes it impossible for you to do your job by imposing unfair work demands or moving you to a different shift.
Often, an employer will claim that they’re retaliating or terminating you for legitimate reasons, such as poor performance or misconduct. However, if you can prove that they’re actually using those legitimate reasons as a cover up for an illegal reason, you may be able to win a wrongful termination case.
If you’ve experienced retaliation after reporting wrongdoing, you should contact a retaliation lawyer as soon as possible. Your attorney can help you gather the most relevant information, create a strong narrative of the incident, file a lawsuit against your employer, and protect you from future incidents. If you’re successful, you may be reinstated, get damages, back pay, and other remedies.
How Do I Hire a Lawyer?
It can be difficult to take a stand against your employer when you believe your rights have been violated. In these emotionally challenging situations, you need a lawyer who will protect your interests while compassionately guiding you through the legal process. Our New York workplace retaliation lawyers have the experience, knowledge, and resources to help you fight back against your employer’s retaliatory actions.
Under federal and state laws, it’s illegal for employers to retaliate against employees who have engaged in protected activities, such as reporting a claim of discrimination or harassment to an internal or external body. It doesn’t matter if the complaint was actually discrimination or harassment, as long as it was made in good faith. The law also protects employees from being retaliated against after they have complained about safety issues, blew the whistle on their employer’s unlawful conduct, or provided information to federal and state regulatory agencies.
The key to winning a retaliation case is showing that your employer took an adverse action and there was a causal link between the protected activity and the negative change in working conditions. The evidence that we can gather on your behalf to prove this can include documents that demonstrate the retaliatory motive of your employer, as well as circumstantial evidence that shows you have been singled out for unfair treatment while others are being treated similarly.