oh retaliation law

What Is Workplace Retaliation?

workplace retaliation
workplace retaliation

It is illegal for an employer to take an adverse employment action against an employee because that employee engaged in a protected activity. Let’s break it down a little. The above sentence has three parts: (1) “adverse employment action,” (2) “protected activity,” and (3) “because of.” Let's look further at what each of these mean to the courts and how they might impact your case.

Adverse Employment Action

This means that something bad happens to you at work. The most obvious adverse employment action is being fired or laid off. But adverse employment action is not limited to termination. Other actions may be adverse employment. For example, harassment, suspensions, demotions, reductions in compensation and marginalization may be adverse employment actions. Bottom line is that an “adverse employment action” is something bad that happens to you at work.

Protected Activity

Protected activity is activity aimed at battling discrimination in the workplace. This includes internal complaints, filing charges, testifying, or otherwise expressing your opposition to what you believe is discrimination in the workplace. If you do something to address discrimination in the workplace, it is probably protected activity. (If you bring attention to issues other than discrimination, you may be a whistleblower.)

Because Of

This is the tricky one. The adverse employment action must be “because of” the protected activity. If your employer fires you and it has nothing to do with your protected activity, that is perfectly legal. Because there is almost never “smoking gun” evidence, courts tend to look at circumstantial evidence like timing and different treatment before/after the protected activity. The “because of” element is the lynch-pin of all retaliation cases.

If you are concerned about unlawful workplace retaliation, speak to an employment attorney. Most, including this firm offer free initial consultations. Contact us to learn more.

What is Workplace Retaliation?

There are several things that employers can do which may constitute unlawful workplace retaliation.  If you feel that your employer has retaliated against you, or you have otherwise suffered wrongful termination or wrongful workplace retaliation, our experienced New York Employment Lawyers can help. Stewart v. CUS Nashville, LLC is an interesting Fair Labor Standards Act (FLSA) case in which several employees who worked for a bar claimed that their employer shorted them on overtime pay.  Two of the plaintiffs also claimed that after they sued, but while they were still employed, they were the object of threatening posts appearing in various social media platforms, and thus decided to pursue claims of retaliation.

The employees saw this post on the blog of the owner of the bar.  The other employee alleged that she felt threatened when she saw this status update from the bar’s director of operations.  The director of operations, who admitted to being intoxicated on the night the post was made, claimed not to recall making (or subsequently deleting) the status update.

Workplace Retaliation comes in all forms.

The United States Supreme Court has held that any employer taking action that would “dissuade a reasonable employee from making or supporting a charge of discrimination” can be retaliation.  The same maxim holds true when the underlying claim is a violation of the FLSA.

In this case, the court had little difficulty concluding that a blog post from her boss as well as the status update could possibly deter plaintiffs from pursuing their claims.  Accordingly, the court held that the employees had stated viable retaliation claims under the FLSA.

If you think that you are a victim of workplace retaliation, please contact us.