June 16, 2022 • 19 mins
Comment on the Show by Sending Mark a Text Message.
In this episode of the Employee Survival Guide®, Mark discusses the law of retaliation discrimination in a thoughtful and nonlegalist way. Mark will guide you through which actions are illegal and which are not. He will help you gain a better understanding of retaliation discrimination and how to prove it through self advocacy at work and by using an employment attorney.
This episode was written by Chris Avcollie, edited by Matt Zako, and produced by Mark Carey.
Listen to the Employee Survival Guide podcast latest episode here https://capclaw.com/employee-survival-guide-podcast/
If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts.
For more information, please contact Carey & Associates, P.C. at 475-242-8317, www.capclaw.com.
The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship. Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.
If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States.
For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.
Disclaimer: For educational use only, not intended to be legal advice.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Unknown (00:06):
Hey, it's Mark here and welcome to the next edition of
the Employee Survival Guide,where I tell you what your
employer does not want you toknow about and a lot more. Today
we're gonna be talking about theLaw of Retaliation at work,
blind justice in the workplace.
In the ancient world, the law ofquote, An eye for an eye, a
tooth for a tooth, and quote, isthe Law of Retaliation. And it's
(00:26):
embodied in the principle ofreciprocal justice for injuries
or damages. While we associatethis principle with a brutal or
severe concept of justice, theLaw of Retaliation was actually
a progressive advance, in thatit introduced the concept that
the punishment should fit thecrime or the harm done. This was
preferable to the even moreancient principle of, quote,
(00:49):
make one mistake lose yourentire head and quote, which
ruled the even more ancientworld. To our modern
sensibilities both concepts seemdraconian. In the American
workplace, these most ancientconcepts of retribution, are
both alive and well. Thepractice of vicious and
unbalanced workplace retaliationby employers or co workers, for
(01:11):
the actual or perceived conductof employees is a daily reality.
According to the EEOC, the EqualEmployment Opportunity
Commission to retaliation is thequote, most frequently alleged
basis of discrimination in thefederal sector, and the most
common discrimination finding inthe federal sector cases and
quote, some data suggestsapproximately four to 5% of all
(01:34):
complaints filed with the EEOCare retaliation claims. Some
employees report incidents ofretaliation, but most are too
frightened to do so. So how dowe deal with the everyday
injustice that is so pervasiveand insidious, legal, versus
illegal retaliation? Aspracticing employment attorneys,
(01:54):
we hear firsthand aboutincidence of workplace
retaliation so often, they seemubiquitous. Sometimes it seems
as if there is an unspoken lawrequiring employers to seek
harsh retribution for a host ofcommon workplace behaviors and
situations. When someone isreporting an incident of
retaliation. The first thing Ineed to determine is whether the
(02:15):
retaliation is legal or illegal.
Yes, there is, in fact acategory of retaliatory conduct
that is perfectly legal, itshould not be legal in any
situation. In my opinion, itshould not be legal in any
situation, but the law as usualis of several centuries behind
the social revelant relevancecurve. Some retaliation,
(02:38):
however, is clearly illegal.
Now, and therefore, actionable.
Broadly, retaliation is definedas, quote The action of harming
someone because they have harmedoneself, revenge and thus, in
the workplace, any harmfulaction taken against an employee
because the employee committedan actual or perceived harm is
(03:00):
retaliation. For example, if anemployee complaints to the
supervisor about sexualharassment by a co worker, and
the employer responds bytransferring the complaining
employee to a shift, which isless desirable, and does not
provide the same opportunitiesfor overtime, that is
retaliation. Likewise, if anemployee complains about the
supervisors tendency to talk toomuch about safety issues at a
(03:23):
staff meeting, and thesupervisor overhears and
punishes the complainingemployee by making the same that
undesirable shift transfer, thatalso is retaliation. And the
examples above, only one of thetwo scenarios constitutes
illegal retaliation, ieretaliation that is prohibited
by law and thus legallyactionable. The employee who is
(03:43):
punished for reporting sexualharassment has a valid claim for
retaliation, while the employeewho found safety training to be
unbearably boring does not. Thusretaliation is illegal in the
workplacewhen an employer takes an
adverse action against anemployee for engaging in or
exercising rights that areprotected under the law. Since
Title Seven of the 1964 CivilRights Act and other laws
(04:05):
protecting employees right toreport sexual harassment, the
adverse action is illegal inthat case, because there is no
law that protects an employee'sright to complain about boring
training classes. The secondexample is not illegal
retaliation. That's themotivation for retaliation is
key is very important inassessing a retaliation
complaint to understand what theaction was that triggered the
(04:27):
retaliation. It's what happenedbefore the retaliation that
matters most. While the reasonor inciting action for the
retaliation is important, itactually makes no difference
whether the reason for theinitial complaint by the
employee was legit or not. Inother words, if the employee is
punished for reporting what theshe thinks is illegal race
(04:48):
discrimination, retaliation isillegal, even if no actual
illegal race discrimination wasever committed by the employer.
Thus, if the employee reports adiscriminatory incident and the
employer disciplines or firesthe employee. In response, the
employee nevertheless has aretaliation case. It does not
matter that no discriminationoccurred, where the law protects
(05:10):
an employee's right to complain,help others to complain or to
report some act of misconduct,either within or outside the
organization. That action isregarded as, quote, protected
activity, and quote, forexample, the EEO laws prohibit
punishing Java applicants oremployees for asserting their
(05:30):
rights to be free fromemployment discrimination,
including harassment. It istherefore a legal retaliation to
punish an employee for engagingin such protected activities.
For example, isn't it isunlawful to retaliate against
applicants or employees for thefollowing different scenarios,
number one, filing or being awitness to an EEOC charge
complaint investigation orlawsuit to reporting ethical
(05:53):
violations. Three communicatingwith a supervisor or manager
about employment discrimination,including harassment. Number
four, answering questions duringan employer investigation of
alleged harassment. Five,refusing to follow orders that
would result in discrimination.
Six, refusing to commit illegalacts despite your employer's
(06:16):
direction or request to do so.
Seven, requesting or taking aleave of absence under the
Family Medical Leave Act eightwhistleblowing or officially
reporting against your employerin an effort to stop illegal or
unsafe practices. Number nine,filing for workman's
compensation benefits 10,resisting sexual advances or
(06:37):
intervening to protect othersfrom those advances 11
requesting a combination of adisability or for religious
practice and 12 Asking theemployer managers or coworkers
about salary information touncover potentially
discriminatory wages. It isimportant to understand that an
employee does not have toformally object to the
(06:59):
misconduct or discrimination toengage in valid protected
activity. It can be enough toraise the issue of
discrimination or harassment inany way that calls into the
employers calls the employersattention. As long as the
employer is on notice of theunlawful conduct the reporting
employees protected fromretaliation. The nature of the
problem. While the psychology ofa retaliation scenario seems
(07:22):
clear and simple, ie quote youdid something I didn't like so
I'm going to do something youdidn't like. The institutional
dynamics involved are morecomplex. The aspect that makes
retaliation illegal is not therevenge part of it all. The law
is not concerned with whetherthere was some act of vengeance.
The laws against certain formsof workplace retaliation are
(07:44):
intended to combat the aspect offear created by the retaliatory
action. The idea is if theworkers are too afraid to report
misconduct, the law in questioncannot be enforced. In a recent
blog article, we address somesources of fear in the
workplace. fear of retaliationby one's employer was one of the
primary sources of workplacefear. Fear is also is the real
(08:07):
point of retaliation, notrevenge. Many employees refuse
to protect their rights at workfor fear of retaliation. This is
really what the retaliatoryemployer wants.
Retaliation is intended tocreate fears of getting fired,
demoted to a lower payingposition, or move to an
(08:27):
intolerable work environment.
These and other fears typicallyunderlie an employee's
reluctance to stand up for therights. The truth is that where
the rights you are asserting areprotected by law, retaliation is
illegal. Retaliation is definedby many courts by its fear
causing tendencies, and anegative action taken by an
employer which is severe enoughthat it might deter a reasonable
(08:50):
employee from exercising theirlegal rights is likely
sufficient to support a legalclaim of retaliation. While a
protected activity must precedethe retaliatory act to make it
legally actionable. The primaryconcern is whether the adverse
action against the employeewould tend to discourage others
from making similar complaints.
(09:12):
While the motive for theretaliatory act matters. It is
not the subjective motive of theemployer, but the effect the
effect the retaliatory actionswould have on a reasonable
employee similarly situated tothe complaining employee that
matters the most various formsof retaliation. While most
retaliation cases follow afamiliar pattern. The forms that
(09:33):
retaliation can take arenumerous. Well, some methods of
retaliation like termination areobvious. Many are more subtle,
and some are even difficult toclassify as retaliation at all.
Some common examples ofworkplace retaliation our number
one, demotion, losing aposition, title, status, job
(09:54):
duties or seniority privilegesto termination, being separated
invalid monetarily from the job.
Three abuse. Employer engages inverbal or physical abuse or
verbal insults for increasedscrutiny, unusual and
unwarranted examination of theemployees, job duties, etc. Five
punitive assignments being sentto perform undesirable tasks or
(10:19):
assigning too much work from oneemployee. Six, changing
conditions, moving the employeeswork situation, or changing the
employers employee schedule tocreate a hardship seven
performance targeting unwantedperformance criticism including
unjustified performanceimprovement plans not imposed on
other non complaining employees,eight salary reductions,
(10:43):
receiving a cut and pay orreducing the regularly scheduled
hours. Exclusion is number nine,intentionally left out of
meetings, training sessions orsocial activities 10 False
discipline being identified ascommitting misconduct or
violating policies which are notenforced against others
suspensions without good reason.
(11:07):
11 threats threaten to make oractually make reports to
authorities such as reportingemployee to an immigration
agency or police 12 defamation,publishing false negative
information about the employeeand 13/3 party acts take some
action against friends or familymembers of the employee who may
(11:28):
work at the company. As you cansee, there are many ways that an
employer can retaliate againstan employee. Essentially an
employer action that hasnegative consequences for the
employee can potentially beactual retaliation. If the
negative action is severe enoughthat it might deter a reasonable
employee from exercising theirlegal rights. It's probably
(11:50):
illegal retaliation. Now, how dowe prove workplace retaliation?
While identifying a retaliatoryscenario seems simple enough,
proving a claim of illegalretaliation can be anything but
in almost every case, theretaliating employer will make
some attempt to justify itsactions by stating a legitimate,
non retaliatory reason for theadverse action it took against
(12:12):
the employee. Often the mostchallenging part of the case is
proving that the actions takenby the employer were in fact,
illegitimate and based onretaliation, to prove a case
where illegal retaliation forbasic elements must generally be
proven. First, the employee hasto prove that they took part in
a legally protected activity. Asexplained above, all retaliation
(12:35):
is not illegal. Only retaliationthat follows a legally protected
activity is illegal. An employeemust demonstrate they made
internal within a company ororganization when sometimes
external, outside the companyorganization, complaints and in
order to claim actualretaliation. Next, the employee
has to prove that the employertook adverse action against
(12:56):
them. Here the employee mustdocument or be able to prove
that the employer did somethingto them to affect the terms and
conditions of their job. Wheretermination is the retaliatory
action, that proof is fairlyeasy to come by. However, when
the employer retaliates in amore subtle way, such as by
berating or humiliating theemployee in front of coworkers,
(13:17):
the employee must document theincident and enlist the aid of
witnesses to prove theretaliation. Third, the employee
must prove that the employersretaliation was in response to
the protected activity. Thiselement often involves proving
that the employers profitlegitimate reason for the
retaliatory action was in factfaults are pretextual. This can
(13:38):
be tricky, where the employerhas done a good job of
documenting performance anddisciplinary issues against the
employee in the past, however,where the employer has a weak
documentation basis to supportthe legitimacy of its actions, a
court can often will infer thatthe actions were in fact
retaliatory. Finally, theemployee must show that they
(13:59):
suffered some loss or damage asa result of the retaliation,
such as lost wages or benefits.
As with most workplaceconflicts, the ability to make a
credible claim often comes downto a battle of the documents.
Documentation is a key tosuccess in proving any
misconduct at work, mostespecially workplace
retaliation. The ability toprove that a retaliatory action
(14:20):
took place often depends on thequality of the employee's
documentation. As compared tothe employers documentation. It
is important to havedocumentation to show a link
between the complaint or otherbehavior that caused the
retaliationand the employer's retaliatory
actions. It is a courseadvisable to document the
(14:40):
specifics of the retaliatorybehavior, if the retaliation is
a transfer to an undesirableshift, document all the facts
related to the transfer. haveothers been transferred the same
shift in recent months, who wastransferred. And was that also a
punishment? Did the employerhave to move someone out of
that? shift to make room for thereporting employee had that
(15:01):
change been requested by theother worker? What is
specifically undesirable aboutthat that shift. It is also
important to document certainpast information. If the
employer is claiming that thepoor performance is the reason
for the adverse employmentaction, a record of prior good
performance such as emails orletters praising the employee's
(15:21):
work or positive performance,evaluations and bonuses awarded
to you provide excellentevidence to show that the
alleged performance issue issimply a pretext for illegal
retaliation. If a good performeris suddenly becomes quote
unquote poor, after a complaintof harassment, the evidence will
often be very clear. The timingof the relevant events is also a
(15:44):
big factor. As in the example,if the retaliatory actions begin
immediately after the employerlearns of the protected
activity, the link between thetwo will be evident. Another set
of facts that require carefuldocumentation are the facts
surrounding the employersexplanation for the retaliatory
acts, ask probing questionsabout why the actions are being
(16:04):
taken and document the employersactions carefully. Often, the
employer will give a weak ornonsensical reason when an
action is truly retaliatory. Ifthe employer tries to change the
explanation for the retaliationlater, perhaps after lawyers
have been become involved, thatdocumentation of the weak reason
they gave at first will be veryimportant evidence of pretext
(16:25):
trying to get the reasons forany actions you suspect might be
retaliatory in writing, if onlyby email or memo, and you
yourself can send the email toyour boss to document it for
yourself. You don't have to waitfor the boss to document to you.
When the employer will not putthings in writing. take detailed
notes, date them, and eitheremail them to yourself. Be sure
(16:48):
to document the basis for theinitial complaint or report a
protected activity, even ifthere was no actual
discrimination or misconductdocument the good faith basis
for the complaint. Always recordthe names and contact
information for any potentialwitnesses, including coworkers,
vendors, or customers whereappropriate. Further
(17:09):
documentation for the actualcomplaint you made and the names
of the persons to whom youcomplain will be important as
well. Finally, document thelosses or damages you suffered
as a result of the employersretaliatory conduct collecting
pay stubs. Income statements,benefit documents will help
prove the damages incurred fromloss of wages, or overtime as a
result of the retaliation.
(17:32):
Evidence of medical treatmentfor any conditions that may have
been caused by the by theretaliation will also be
important. Now, context mattersmost. In the landmark harassment
case of on Cal versus sundowneroffshore services. In 1998, the
United States Supreme Courtpointed out that not every
workplace problem is a matter ofharassment or retaliation.
(17:54):
Whether or not a workplace eventis actual depends upon the
constellation of surroundingcircumstances, expectations and
relationships. In retaliationcases, our courts look at the
context and the particularcircumstances relevant to each
situation to determine whetherthe allege retaliatory action
had or was likely to have achilling effect on employee
(18:15):
reports of illegal conduct. Andthen finally, in closing, I
after many, many years of doingthis, I have seen retaliation
cases. And the good ones alwaysget settled, they pop out and
they smell of like rotting fish,it's just you just can see the
cause effect in the absence ofany internal legal counsel
trying to manage them. And lookfor the close of the proximity
(18:39):
of time between the complaintbeing made internally to a
manager or to HR wherever andhow quickly the events that the
adverse adverse action thathappens afterwards. The longer
that nexus of time, stretchinginto 1234 or five months, the
more likely it is the employercan squeeze into it or kind of
(19:00):
develop a fact based althoughfalse narrative that you have
performance problems after thecomplaint. Those cases really
don't ever survive summaryjudgment in front of a court and
are likely to settle.
So take these thoughts intoconsideration when you're
experiencing retaliation andfollow them to the letter if you
(19:20):
may, and you might discover thatyou have an actual claim that
you can bring to an attorney andemployment attorney. Hope you
find these comments andinformation helpful. Hope you
enjoyed this week's episode ofthe Employee Survival Guide.
Please rate us if you can reviewus to help others find us and
have a great week. Be good
Hey, it's Mark here and welcome to the next edition of
the Employee Survival Guide,where I tell you what your
employer does not want you toknow about and a lot more. Today
we're gonna be talking about theLaw of Retaliation at work,
blind justice in the workplace.
In the ancient world, the law ofquote, An eye for an eye, a
tooth for a tooth, and quote, isthe Law of Retaliation. And it's
(00:26):
embodied in the principle ofreciprocal justice for injuries
or damages. While we associatethis principle with a brutal or
severe concept of justice, theLaw of Retaliation was actually
a progressive advance, in thatit introduced the concept that
the punishment should fit thecrime or the harm done. This was
preferable to the even moreancient principle of, quote,
(00:49):
make one mistake lose yourentire head and quote, which
ruled the even more ancientworld. To our modern
sensibilities both concepts seemdraconian. In the American
workplace, these most ancientconcepts of retribution, are
both alive and well. Thepractice of vicious and
unbalanced workplace retaliationby employers or co workers, for
(01:11):
the actual or perceived conductof employees is a daily reality.
According to the EEOC, the EqualEmployment Opportunity
Commission to retaliation is thequote, most frequently alleged
basis of discrimination in thefederal sector, and the most
common discrimination finding inthe federal sector cases and
quote, some data suggestsapproximately four to 5% of all
(01:34):
complaints filed with the EEOCare retaliation claims. Some
employees report incidents ofretaliation, but most are too
frightened to do so. So how dowe deal with the everyday
injustice that is so pervasiveand insidious, legal, versus
illegal retaliation? Aspracticing employment attorneys,
(01:54):
we hear firsthand aboutincidence of workplace
retaliation so often, they seemubiquitous. Sometimes it seems
as if there is an unspoken lawrequiring employers to seek
harsh retribution for a host ofcommon workplace behaviors and
situations. When someone isreporting an incident of
retaliation. The first thing Ineed to determine is whether the
(02:15):
retaliation is legal or illegal.
Yes, there is, in fact acategory of retaliatory conduct
that is perfectly legal, itshould not be legal in any
situation. In my opinion, itshould not be legal in any
situation, but the law as usualis of several centuries behind
the social revelant relevancecurve. Some retaliation,
(02:38):
however, is clearly illegal.
Now, and therefore, actionable.
Broadly, retaliation is definedas, quote The action of harming
someone because they have harmedoneself, revenge and thus, in
the workplace, any harmfulaction taken against an employee
because the employee committedan actual or perceived harm is
(03:00):
retaliation. For example, if anemployee complaints to the
supervisor about sexualharassment by a co worker, and
the employer responds bytransferring the complaining
employee to a shift, which isless desirable, and does not
provide the same opportunitiesfor overtime, that is
retaliation. Likewise, if anemployee complains about the
supervisors tendency to talk toomuch about safety issues at a
(03:23):
staff meeting, and thesupervisor overhears and
punishes the complainingemployee by making the same that
undesirable shift transfer, thatalso is retaliation. And the
examples above, only one of thetwo scenarios constitutes
illegal retaliation, ieretaliation that is prohibited
by law and thus legallyactionable. The employee who is
(03:43):
punished for reporting sexualharassment has a valid claim for
retaliation, while the employeewho found safety training to be
unbearably boring does not. Thusretaliation is illegal in the
workplacewhen an employer takes an
adverse action against anemployee for engaging in or
exercising rights that areprotected under the law. Since
Title Seven of the 1964 CivilRights Act and other laws
(04:05):
protecting employees right toreport sexual harassment, the
adverse action is illegal inthat case, because there is no
law that protects an employee'sright to complain about boring
training classes. The secondexample is not illegal
retaliation. That's themotivation for retaliation is
key is very important inassessing a retaliation
complaint to understand what theaction was that triggered the
(04:27):
retaliation. It's what happenedbefore the retaliation that
matters most. While the reasonor inciting action for the
retaliation is important, itactually makes no difference
whether the reason for theinitial complaint by the
employee was legit or not. Inother words, if the employee is
punished for reporting what theshe thinks is illegal race
(04:48):
discrimination, retaliation isillegal, even if no actual
illegal race discrimination wasever committed by the employer.
Thus, if the employee reports adiscriminatory incident and the
employer disciplines or firesthe employee. In response, the
employee nevertheless has aretaliation case. It does not
matter that no discriminationoccurred, where the law protects
(05:10):
an employee's right to complain,help others to complain or to
report some act of misconduct,either within or outside the
organization. That action isregarded as, quote, protected
activity, and quote, forexample, the EEO laws prohibit
punishing Java applicants oremployees for asserting their
(05:30):
rights to be free fromemployment discrimination,
including harassment. It istherefore a legal retaliation to
punish an employee for engagingin such protected activities.
For example, isn't it isunlawful to retaliate against
applicants or employees for thefollowing different scenarios,
number one, filing or being awitness to an EEOC charge
complaint investigation orlawsuit to reporting ethical
(05:53):
violations. Three communicatingwith a supervisor or manager
about employment discrimination,including harassment. Number
four, answering questions duringan employer investigation of
alleged harassment. Five,refusing to follow orders that
would result in discrimination.
Six, refusing to commit illegalacts despite your employer's
(06:16):
direction or request to do so.
Seven, requesting or taking aleave of absence under the
Family Medical Leave Act eightwhistleblowing or officially
reporting against your employerin an effort to stop illegal or
unsafe practices. Number nine,filing for workman's
compensation benefits 10,resisting sexual advances or
(06:37):
intervening to protect othersfrom those advances 11
requesting a combination of adisability or for religious
practice and 12 Asking theemployer managers or coworkers
about salary information touncover potentially
discriminatory wages. It isimportant to understand that an
employee does not have toformally object to the
(06:59):
misconduct or discrimination toengage in valid protected
activity. It can be enough toraise the issue of
discrimination or harassment inany way that calls into the
employers calls the employersattention. As long as the
employer is on notice of theunlawful conduct the reporting
employees protected fromretaliation. The nature of the
problem. While the psychology ofa retaliation scenario seems
(07:22):
clear and simple, ie quote youdid something I didn't like so
I'm going to do something youdidn't like. The institutional
dynamics involved are morecomplex. The aspect that makes
retaliation illegal is not therevenge part of it all. The law
is not concerned with whetherthere was some act of vengeance.
The laws against certain formsof workplace retaliation are
(07:44):
intended to combat the aspect offear created by the retaliatory
action. The idea is if theworkers are too afraid to report
misconduct, the law in questioncannot be enforced. In a recent
blog article, we address somesources of fear in the
workplace. fear of retaliationby one's employer was one of the
primary sources of workplacefear. Fear is also is the real
(08:07):
point of retaliation, notrevenge. Many employees refuse
to protect their rights at workfor fear of retaliation. This is
really what the retaliatoryemployer wants.
Retaliation is intended tocreate fears of getting fired,
demoted to a lower payingposition, or move to an
(08:27):
intolerable work environment.
These and other fears typicallyunderlie an employee's
reluctance to stand up for therights. The truth is that where
the rights you are asserting areprotected by law, retaliation is
illegal. Retaliation is definedby many courts by its fear
causing tendencies, and anegative action taken by an
employer which is severe enoughthat it might deter a reasonable
(08:50):
employee from exercising theirlegal rights is likely
sufficient to support a legalclaim of retaliation. While a
protected activity must precedethe retaliatory act to make it
legally actionable. The primaryconcern is whether the adverse
action against the employeewould tend to discourage others
from making similar complaints.
(09:12):
While the motive for theretaliatory act matters. It is
not the subjective motive of theemployer, but the effect the
effect the retaliatory actionswould have on a reasonable
employee similarly situated tothe complaining employee that
matters the most various formsof retaliation. While most
retaliation cases follow afamiliar pattern. The forms that
(09:33):
retaliation can take arenumerous. Well, some methods of
retaliation like termination areobvious. Many are more subtle,
and some are even difficult toclassify as retaliation at all.
Some common examples ofworkplace retaliation our number
one, demotion, losing aposition, title, status, job
(09:54):
duties or seniority privilegesto termination, being separated
invalid monetarily from the job.
Three abuse. Employer engages inverbal or physical abuse or
verbal insults for increasedscrutiny, unusual and
unwarranted examination of theemployees, job duties, etc. Five
punitive assignments being sentto perform undesirable tasks or
(10:19):
assigning too much work from oneemployee. Six, changing
conditions, moving the employeeswork situation, or changing the
employers employee schedule tocreate a hardship seven
performance targeting unwantedperformance criticism including
unjustified performanceimprovement plans not imposed on
other non complaining employees,eight salary reductions,
(10:43):
receiving a cut and pay orreducing the regularly scheduled
hours. Exclusion is number nine,intentionally left out of
meetings, training sessions orsocial activities 10 False
discipline being identified ascommitting misconduct or
violating policies which are notenforced against others
suspensions without good reason.
(11:07):
11 threats threaten to make oractually make reports to
authorities such as reportingemployee to an immigration
agency or police 12 defamation,publishing false negative
information about the employeeand 13/3 party acts take some
action against friends or familymembers of the employee who may
(11:28):
work at the company. As you cansee, there are many ways that an
employer can retaliate againstan employee. Essentially an
employer action that hasnegative consequences for the
employee can potentially beactual retaliation. If the
negative action is severe enoughthat it might deter a reasonable
employee from exercising theirlegal rights. It's probably
(11:50):
illegal retaliation. Now, how dowe prove workplace retaliation?
While identifying a retaliatoryscenario seems simple enough,
proving a claim of illegalretaliation can be anything but
in almost every case, theretaliating employer will make
some attempt to justify itsactions by stating a legitimate,
non retaliatory reason for theadverse action it took against
(12:12):
the employee. Often the mostchallenging part of the case is
proving that the actions takenby the employer were in fact,
illegitimate and based onretaliation, to prove a case
where illegal retaliation forbasic elements must generally be
proven. First, the employee hasto prove that they took part in
a legally protected activity. Asexplained above, all retaliation
(12:35):
is not illegal. Only retaliationthat follows a legally protected
activity is illegal. An employeemust demonstrate they made
internal within a company ororganization when sometimes
external, outside the companyorganization, complaints and in
order to claim actualretaliation. Next, the employee
has to prove that the employertook adverse action against
(12:56):
them. Here the employee mustdocument or be able to prove
that the employer did somethingto them to affect the terms and
conditions of their job. Wheretermination is the retaliatory
action, that proof is fairlyeasy to come by. However, when
the employer retaliates in amore subtle way, such as by
berating or humiliating theemployee in front of coworkers,
(13:17):
the employee must document theincident and enlist the aid of
witnesses to prove theretaliation. Third, the employee
must prove that the employersretaliation was in response to
the protected activity. Thiselement often involves proving
that the employers profitlegitimate reason for the
retaliatory action was in factfaults are pretextual. This can
(13:38):
be tricky, where the employerhas done a good job of
documenting performance anddisciplinary issues against the
employee in the past, however,where the employer has a weak
documentation basis to supportthe legitimacy of its actions, a
court can often will infer thatthe actions were in fact
retaliatory. Finally, theemployee must show that they
(13:59):
suffered some loss or damage asa result of the retaliation,
such as lost wages or benefits.
As with most workplaceconflicts, the ability to make a
credible claim often comes downto a battle of the documents.
Documentation is a key tosuccess in proving any
misconduct at work, mostespecially workplace
retaliation. The ability toprove that a retaliatory action
(14:20):
took place often depends on thequality of the employee's
documentation. As compared tothe employers documentation. It
is important to havedocumentation to show a link
between the complaint or otherbehavior that caused the
retaliationand the employer's retaliatory
actions. It is a courseadvisable to document the
(14:40):
specifics of the retaliatorybehavior, if the retaliation is
a transfer to an undesirableshift, document all the facts
related to the transfer. haveothers been transferred the same
shift in recent months, who wastransferred. And was that also a
punishment? Did the employerhave to move someone out of
that? shift to make room for thereporting employee had that
(15:01):
change been requested by theother worker? What is
specifically undesirable aboutthat that shift. It is also
important to document certainpast information. If the
employer is claiming that thepoor performance is the reason
for the adverse employmentaction, a record of prior good
performance such as emails orletters praising the employee's
(15:21):
work or positive performance,evaluations and bonuses awarded
to you provide excellentevidence to show that the
alleged performance issue issimply a pretext for illegal
retaliation. If a good performeris suddenly becomes quote
unquote poor, after a complaintof harassment, the evidence will
often be very clear. The timingof the relevant events is also a
(15:44):
big factor. As in the example,if the retaliatory actions begin
immediately after the employerlearns of the protected
activity, the link between thetwo will be evident. Another set
of facts that require carefuldocumentation are the facts
surrounding the employersexplanation for the retaliatory
acts, ask probing questionsabout why the actions are being
(16:04):
taken and document the employersactions carefully. Often, the
employer will give a weak ornonsensical reason when an
action is truly retaliatory. Ifthe employer tries to change the
explanation for the retaliationlater, perhaps after lawyers
have been become involved, thatdocumentation of the weak reason
they gave at first will be veryimportant evidence of pretext
(16:25):
trying to get the reasons forany actions you suspect might be
retaliatory in writing, if onlyby email or memo, and you
yourself can send the email toyour boss to document it for
yourself. You don't have to waitfor the boss to document to you.
When the employer will not putthings in writing. take detailed
notes, date them, and eitheremail them to yourself. Be sure
(16:48):
to document the basis for theinitial complaint or report a
protected activity, even ifthere was no actual
discrimination or misconductdocument the good faith basis
for the complaint. Always recordthe names and contact
information for any potentialwitnesses, including coworkers,
vendors, or customers whereappropriate. Further
(17:09):
documentation for the actualcomplaint you made and the names
of the persons to whom youcomplain will be important as
well. Finally, document thelosses or damages you suffered
as a result of the employersretaliatory conduct collecting
pay stubs. Income statements,benefit documents will help
prove the damages incurred fromloss of wages, or overtime as a
result of the retaliation.
(17:32):
Evidence of medical treatmentfor any conditions that may have
been caused by the by theretaliation will also be
important. Now, context mattersmost. In the landmark harassment
case of on Cal versus sundowneroffshore services. In 1998, the
United States Supreme Courtpointed out that not every
workplace problem is a matter ofharassment or retaliation.
(17:54):
Whether or not a workplace eventis actual depends upon the
constellation of surroundingcircumstances, expectations and
relationships. In retaliationcases, our courts look at the
context and the particularcircumstances relevant to each
situation to determine whetherthe allege retaliatory action
had or was likely to have achilling effect on employee
(18:15):
reports of illegal conduct. Andthen finally, in closing, I
after many, many years of doingthis, I have seen retaliation
cases. And the good ones alwaysget settled, they pop out and
they smell of like rotting fish,it's just you just can see the
cause effect in the absence ofany internal legal counsel
trying to manage them. And lookfor the close of the proximity
(18:39):
of time between the complaintbeing made internally to a
manager or to HR wherever andhow quickly the events that the
adverse adverse action thathappens afterwards. The longer
that nexus of time, stretchinginto 1234 or five months, the
more likely it is the employercan squeeze into it or kind of
(19:00):
develop a fact based althoughfalse narrative that you have
performance problems after thecomplaint. Those cases really
don't ever survive summaryjudgment in front of a court and
are likely to settle.
So take these thoughts intoconsideration when you're
experiencing retaliation andfollow them to the letter if you
(19:20):
may, and you might discover thatyou have an actual claim that
you can bring to an attorney andemployment attorney. Hope you
find these comments andinformation helpful. Hope you
enjoyed this week's episode ofthe Employee Survival Guide.
Please rate us if you can reviewus to help others find us and
have a great week. Be good
Popular Podcasts
24/7 News: The Latest
The latest news in 4 minutes updated every hour, every day.
Therapy Gecko
An unlicensed lizard psychologist travels the universe talking to strangers about absolutely nothing. TO CALL THE GECKO: follow me on https://www.twitch.tv/lyleforever to get a notification for when I am taking calls. I am usually live Mondays, Wednesdays, and Fridays but lately a lot of other times too. I am a gecko.
The Joe Rogan Experience
The official podcast of comedian Joe Rogan.