Workplace Retaliation

State and Federal, employment and labor laws with relevant provisions prohibit employment and workplace retaliation, a form of unlawful discrimination, against employees for one or more of the following.

• Reasonably exercising their employee rights under the laws
• Reporting alleged employer violations of the laws to the proper authorities, such as to the government offices that enforce the laws or first to their attorneys
• Participating in proceedings under the laws as plaintiffs or witnesses

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.

In fiscal years (FY) 1997 to 2011, charges of alleged retaliation that workers filed with the EEOC more than doubled from 18,198 to 37,334. In FY 2011, retaliation charges topped the list of all discrimination charges that the EEOC received.

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 or state government in violation of the False Claims Act or a state equivalent, then you are protected by the Act or a state equivalent 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 specific 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 agency that enforces the relevant law, by filing a lawsuit through an attorney, or both.

Typically, you need only to reasonably believe that your employer illegally retaliated against you; in other words, to legitimately make a claim of 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.

However, it's not a good idea to frivolously, negligently or vengefully make a retaliation claim, because you might be liable. To justifiably make a claim, generally, employment or workplace retaliation must have vindictively occurred to "get even" with you for reasonably exercising one or more of your employee rights.

Some of the laws that have retaliation provisions indicate that protection starts when employees file complaints. However, what is sometimes not clear until it's too late, such as when the cases go to court, is whether employee oral complaints are protected from retaliation the same as those in writing. Employers can't "file" oral complaints.

Another issue that might arise in court, is whether or not employees are entitled to retaliation protection if they filed complaints only with their employers, not with the government agencies that enforce the laws under which the employees filed their complaints.

To avoid an unpleasant retaliation surprise, consult an attorney or the enforcing government agency about the meaning of filing a complaint under a specific law; if you work under a collective bargaining agreement, consult your union representative about the proper grievance procedure to follow.

Update: The U.S. Supreme Court case of Thompson v. North American Stainless, LP (January 24, 2011) set a precedent that an employee may legitimately claim retaliation under Title VII of the Civil Rights Act of 1964, when his or her employer has retaliated against him or her because a closely-related third party engaged in a protected activity under Title VII.