Workplace Retaliation
State and Federal, employment and labor laws with
relevant provisions prohibit employment and workplace retaliation against
employees for one or more of the following.
The types of employment and workplace retaliation protections vary; some
employment and labor laws prohibit any type of retaliation in the workplace
or otherwise related to employment, while others protect only against retaliation
in the form of illegal employment discharge, commonly called wrongful
termination.
For example, if you reasonably expect your employer to pay you the minimum
wage or overtime for which you're
eligible under the Fair Labor Standards Act (FLSA), then your employer
cannot rightfully retaliate by discriminating against you in the workplace
or by firing you.
Your employer also cannot rightfully retaliate against you for reporting
the employer's alleged violation of the FLSA (or a state
equivalent) to an enforcing labor department or
first to your attorney. Additionally,
your employer cannot rightfully retaliate against you for participating
in resulting proceedings.
The same goes for reporting employment
discrimination (such as sexual harassment)
under a discrimination law directly
to the Equal Employment Opportunity Commission (EEOC) or
a state equivalent, or to either through
your attorney.
If you contest the results of your new employer's E-Verify query
regarding your USA work-authorization status, then your new employer may
not retaliate against you while you're in the process of contesting.
Under what are collectively called whistleblower
laws, your employee rights protect you from employer retaliation
for "blowing the whistle"
on your employer for violating one of the laws.
For example, if you file a qui
tam lawsuit against your employer for cheating the Federal Government
in violation of the False
Claims Act, then you are protected by the Act from
employer whistleblower retaliation. Better
yet, you're entitled to collect a fair share of the award that you win
on behalf of the government.
Laws prohibiting unfair labor practices make
it illegal for an employer to retaliate against you for forming or joining
a union, or for participating in legitimate union activities. Right
to work laws and related provisions in other labor laws prohibit employer
or union retaliation against you, if you choose not to join a union or
decide to resign your union membership.
Employers are generally not allowed to retaliate against employees who
reasonably exercise their employee rights under workers'
compensation and unemployment laws,
such as filing and appealing legit claims for benefits. The types of prohibited
retaliations vary by state, as do the benefits and laws.
In the absence of specific retaliation provisions, your employee rights
might generally protect you from employment and workplace retaliation under public
policy or common
law.
For example, if your employer fires you because you refused to break a
state law or city ordinance that
doesn't have provisions prohibiting employment or workplace retaliation,
then your employer might have wrongfully
terminated you in violation of public policy.
If your employer or union retaliates against you despite that it's prohibited,
then your employee rights entitle you to seek relief by filing a charge
with the government office that enforces
the relevant law, by filing a lawsuit through an attorney,
or both.
In the fiscal years (FY) 1997 to 2008, charges of alleged
retaliation that workers filed with the EEOC increased from 18,198 to
32,690. In FY 2008, retaliation charges amounted to a little over one-third
of all charges that the EEOC received.
Typically, you need only to reasonably believe that your employer illegally
retaliated against you; in other words, to claim employment or workplace
retaliation, you don't have to know for sure that your employer broke the
law. It's the responsibly of the enforcing government agency or your attorney to
determine whether or not the incident is actionable.
Of course, it's not a good idea to frivolously make a claim.
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