A worker packing his belongings after being illegally retaliated against and fired.

Is Retaliation Illegal?

Do you feel like your supervisor retaliated against you?  Did you know that retaliation is illegal when it occurs as a result of protected activity? Read on to learn what is a “protected activity.”

At Gardner Employment Law, we are experts in knowing when illegal retaliation has occurred and helping our clients know their rights.

What Is Illegal Retaliation?

Retaliation at work is illegal if an employer takes an adverse action against an employee because the employee engaged in an activity that is protected by law.  As we explain in “Retaliation Lawyer,” retaliation has a different meaning in employment law than the ordinary meaning.  The Supreme Court has defined retaliation as an intentional act in response to a protected action.  Retaliation, or the “intentional act,” is often called adverse action. Types of adverse action include:

  • Termination
  • Demotion
  • A reduction in wages or hours
  • Reassignment

Those are just some of the adverse actions which can be considered retaliation. Any action taken by your employer which would discourage you or others from speaking up or seeks to punish you for your protected activity may be considered an adverse action. “Adverse action” does not include minor annoyances, petty slights, or general unsavory behavior. While the law protects employees from retaliation, the law does not protect employees from employers who are mean, rude or just downright unpleasant to be around. Only if the adverse action is severe enough and it was taken because of your protected activity will the situation rise to the level of illegal retaliation.

What Is a Protected Activity at Work?

A “protected activity” means that the employee has a legal right to take an action so long as the employee follows the requirements of the particular statute in question.   Forbes provides an examples of protected activity, such as participating in a process administered by the EEOC (Equal Employment Opportunity Commission) or opposing discriminatory practices at work. Those two are the most common types of protected activity.

There are other instances of protected activities at work.  Take for example an employee who exercises the right to take leave under FMLA (Family and Medical Leave Act). The employee’s leave is protected by the FMLA – so long as (1) the employee or his family member has a serious illness or (2) the employee has a newborn or newly adopted child.  The employer cannot punish or penalize the employee because of that activity. Another example could be an employee who is concerned that she and other employees are not being paid properly for their overtime work and discusses her concerns with a coworker. Overtime pay is specified and protected under the FLSA (Fair Labor and Standards Act). If their employer overhears their conversation, the employer cannot take adverse action against them because the issue they were discussing is protected under the FLSA.

It may be difficult to know whether or not the employer is actually retaliating because of a protected activity, but fear not. As long as the employee has undertaken their protected activity in a reasonable manner and in “good faith,” that employee will be protected whether or not the violation has occurred. If you are questioning whether or not your protected activity is in “good faith” or not, ask yourself whether an ordinary and reasonable person in a similar situation would believe that you were following the law.  If the answer is yes, you are likely acting in good faith.

How Do You Prove Retaliation?

The key word in this answer is “because.”  You must have evidence that the employer took an adverse action against you “because” you did something that was protected by the law.  In many cases, it can be difficult to prove whether unlawful retaliation has occurred, i.e., that the adverse action was because of the protected activity.  It may be the case that your employer has taken adverse action against you for a different unrelated reason.

Some employers will attempt to give a variety of other reasons as to why they took adverse action against the employee rather than admitting it was because of a protected activity. If the employer can show that they fired you because you were always late to work, performed poorly, or other legitimate reasons, you do not have a valid claim. It is essential that your employer has taken adverse action against you because of your protected activity in order for your claim of retaliation to succeed.  In other words, you must prove that but for your legally protected action, your employer would not have penalized you.

In a retaliation claim, it is important that you have some evidence to show that you suffered an adverse action as a result of your protected activity. Direct evidence clearly showing this connection is the best, but circumstantial evidence can work as well. Circumstantial evidence such as timesheets demonstrating that you are always on time can show that the employer’s reason of “tardiness” is not true.  In legal parlance, that would be called a “pretextual” reason.  Tardiness was not the real reason for the adverse action but a pretext for the real reason.  If circumstantial evidence can show that the reason given by your employer for the adverse action does not make sense or is contradicted by company records, that could be a valid claim of illegal retaliation.

Do You Have a Retaliation Claim?

Retaliation claims are among the trickiest employment law topics to understand and one of the hardest to prove. If you think that you have been unlawfully retaliated against, Gardner Employment Law can help you understand your claim and show you which steps to take next.

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