Oftentimes, employees dealing with an unpleasant work situation have the choice of putting up with it or finding another job. The law typically does not protect workers from an employer’s rudeness, negativity or even unfairness. However, there are situations where the law does protect employees from certain types of actions.
One instance in which an employee may seek legal recourse is when an employer retaliates against him or her for speaking up about illegal violations. It can be helpful to understand the types of activities anti-retaliation laws protect, as well as conduct that can constitute retaliation.
Whom does the law protect?
Employers may not retaliate against a worker who asserts his or her rights by reporting discrimination or wage law violations. Laws that aim to protect the public, such as health and safety regulations, anti-fraud laws and environmental protections, also often come with built-in provisions forbidding retaliation against employees who report violations.
Other types of protected conduct include speaking up about these violations at work and trying to address them internally. Employees who do not report but instead cooperate with government investigations also have legal protection against retaliation.
What is an adverse employment action?
To constitute retaliation, an employer must act adversely against the employee. This can mean termination, but not always; other common examples include demotion, denial of training or advancement opportunities, or removal to another department.
Today, many employers know enough not to announce to an employee that he or she is being fired due to filing a recent harassment claim. Instead, a common tactic is to try to back up the eventual adverse action with a record of poor performance. Red flags include facing disproportionate discipline for relatively minor violations or sudden strict enforcement of a rule the employer has previously ignored and let slide with other employees.
What can you do?
If you suspect an employer may target you for retaliation, you may need to prepare for an eventual claim. It is important to document interactions with the employer; try to conduct conversations via email and send confirmation emails for verbal exchanges. You should also not sign a performance review or disciplinary write-up that contains inaccurate information.