Employer Retaliation Against Employee

Employer Retaliation Against Employee

In an employment law context, retaliation occurs when an employer takes an adverse action against an employee (such as firing), because the employee has engaged in a protected activity.  Employers that unlawfully retaliate against employees may be penalized or required to pay damages to the affected employees.

An employee can engage in a protected activity by either “participation” or “opposition.”  For example, an employee may file a claim against the employer for violating the law.  An employee may also testify in a proceeding or assist in an investigation related to an employer’s misconduct.   An employee may also engage in a protected activity via opposition by making complaints to management about the company’s violation of the law, protesting against violations of the law, refusing to engage in an activity that would violate the law, or expressing support of co-workers who have made complaints or filed charges or lawsuits against the company.

If an employee engages in a protected activity and the employer takes an adverse action against that employee, then the employee may have a claim for retaliation.  Adverse actions are actions that would dissuade a reasonable worker from engaging in a protected activity. These include firing, failing to promote, reducing wages, changing shifts or schedules, issuing discipline or poor performance reviews, or decreasing opportunities for advancement.

It is not enough, however, for the employee to prove that an adverse action occurred after the employee engaged in a protected activity.  The employee must also prove that a causal connection existed between the protected activity and the adverse action.  This typically means that the person who made the decision to take the adverse action was aware of the employee’s protected activity and that it factored into the adverse action decision. For example, if an employee complained to one manager about a violation of the law, but a different manager decided to fire the employee without knowing of the complaint, there will not be a causal connection as one cannot retaliate for actions of which one is unaware.

Additionally, to prove a causal connection, the adverse action must be taken somewhat close in time to the protected activity.  This means that not too much time can pass between the protected activity and the adverse action.  For example, if an employee refused to perform a certain task because he believed it was a violation of the law, and then was fired a year later, a court may find that too much time passed in order to establish that the adverse action (the firing) was causally connected to the employee’s protected activity.

If an employee can prove that he or she engaged in a protected activity, suffered an adverse employment action, and there was a causal connection between the protected activity and the adverse action, then the employee has established a prima facie case of retaliation.  The employer can defend itself, though, by setting forth a legitimate, non-retaliatory reason for the adverse action.  For example, the employer may assert that the employee was fired because he repeatedly was late or absent from work.

If the employer is able to set forth a legitimate, non-retaliatory reason for the adverse action, then the employee will need to show that the reason provided by the employer was not the real reason for the action (it was a merely a “pretext”) and that the real reason was retaliation.  An employee can show pretext in different ways, including by showing that other employees were not fired for engaging in the same conduct and were not adversely affected.  Pretext can also be demonstrated by showing that the employer shifted its explanation for the adverse action during the process.

An employee who successfully shows pretext may be entitled to recover damages due to retaliation.  The type of damages an employee can recover depends upon the law the employer has violated.  Damages may include lost wages, compensatory damages (e.g., for lost salary and emotional distress), and punitive damages.  The employee may also be entitled to repayment for any attorney’s fees he or she incurred in pursuing the retaliation claim.

There are many laws that prohibit employers from retaliating against their employees.  Individual states have laws that protect whistleblowers, who are individuals who report an organization’s misconduct.  Additionally, there are a multitude of federal laws with anti-retaliation provisions including:

·         Age Discrimination in Employment Act

·         American Recovery and Reinvestment Act of 2009

·         Americans with Disabilities Act

·         Commercial Motor Vehicle Safety Act

·         Consumer Financial Protection Act

·         Consumer Product Safety Act

·         Dodd-Frank Wall Street Reform and Consumer Protection Act

·         Employee Retirement Income Security Act

·         Fair Labor Standards Act

·         Family and Medical Leave Act

·         National Labor Relations Act

·         Occupational Safety and Health Act of 1970

·         Patient Protection and Affordable Care Act

·         Sarbanes-Oxley Act of 2002

·         Title VII of Civil Rights Act of 1964

·         Uniformed Services Employment and Reemployment Rights Act

·         Whistleblower Protection Act

As the number of laws with anti-retaliation provisions has increased, so has the number of retaliation lawsuits.  The numbers of retaliation claims filed with the Equal Employment Opportunity Commission (“EEOC”) has steadily climbed over the past ten years.  Retaliation claims accounted for nearly half (45.9%) of the charges filed with the EEOC in 2016.  With retaliation growing as an area of concern for employers, companies may seek to prevent retaliation by implementing anti-retaliation policies, training employees and managers on these policies, setting up formal avenues for employees to make complaints, and establishing and following processes for the investigation of employee complaints.