What is retaliation?
The concept of retaliation is not terribly difficult to comprehend. In essence, a person does something that their employer does not like and the employer takes some type of action against them as a result. It is similar to discrimination, however, the reason for the negative treatment from the employer stems from something an employee has done as opposed to a particular class that a person falls into.
Like discrimination, not all retaliation is unlawful. There are certain things an employee can do or say that do not provide legal protection. Over the years the law has developed in such a way to recognize that it is important to encourage employees to do certain things. In order to encourage these actions, the law provides protections to those employees who do come forward.
In analyzing unlawful retaliation, there are really three different questions:
- What is it that the employee did? In order to be protected from unlawful retaliation, an employee had to have taken some action that causes a reaction from their employer. There are many laws that protect an employee and the first question is did the employee engaged in any conduct protected by one of these laws.
- What is the reaction of the employer? While not every action by an employer is necessarily unlawful, there are a lot of different things that an employer can do that would be categorized as unlawful retaliation. For example, an employer might change your work location, change your shift, change the number of hours that you work. These, of course, are in addition to formal discipline.
- Is there a link between the underlying action and the employer's action? Just because an employee takes protected action they are not automatically insulated from workplace discipline. There must be a link between what the employee has done and the unlawful response of the employer.
Are whistle blowing and retaliation the same thing?
Many people who we meet with talk about being a whistle blower. Whistle blowing is a specific type of conduct that provides individuals with protection. This typically involves providing information to a government agency about unlawful conduct of an employer. A good example might be complaining to OSHA about workplace safety issues. An employer certainly can not retaliate against an employee who makes such a complaint.
There are, however, a number of other types of things employees do that can protect them from retaliation. For example, an employee who brings their own worker's compensation claim is not necessarily a "whistle blower," however, an employer may not retaliate against the employee for pursuing such a claim.
Should I seek legal counsel before I do something that I fear will cause my employer to retaliate?
If you are concerned that your employer might retaliate against you before you take a certain step, it is certainly prudent to consult with an attorney in advance. While sometimes there will not be time to do so, if possible, if you have you should certainly discuss the issue with an attorney.
At BB+K we routinely consult with employees who have concerns about certain things their employers are doing. They want to point these issues out to either the employer or some legal authority, however, they are afraid that by doing so their job will be in jeopardy. Further, they don't necessarily want to get their employer in trouble or they want to make sure that their employer avoids trouble down the line. In these cases we work closely with our clients to analyze their concerns and develop a strategy for addressing the underlying concerns while protecting the employee's position with their employer.
If you have concerns about something that is going on in your work environment but are either afraid to address it with your employer or don't know how to go about doing so, contact us and arrange a time to speak with one of our attorneys. If necessary, we can arrange for a very prompt consultation to address your concerns.
How do I know if I have been retaliated against?
There are so many scenarios where an employer could unlawfully retaliate against an employee that this question is nearly impossible to answer. Given this difficulty, if you are concerned that you have been subjected to unlawful retaliation you should consult with an experienced attorney.