Assessing Employer Retaliation Claims in PA

What Is Employer Retaliation?

The term employer retaliation refers to actions an employer takes against an employee or job applicant because that person participates in a protected activity. Often, an employer’s actions when retaliating against an employee are disciplinary or directly affect the person’s ability to do their job. In some cases, an employer might retaliate against a person by harassing them or creating a hostile work environment.

It is essential to understand that at the heart of an employer retaliation case is an action that occurs after an employee participates in a protected activity. If an employer demotes you, docks your pay or fires you due to poor job performance or because they no longer have the budget to afford your position, they are not retaliating against you.

What Activities Are Protected?

Several activities are protected by federal or Pennsylvania state law, meaning you have the right to perform them. These protected activities include:

Requesting Medical or Maternity Leave

Under the Family and Medical Leave Act (FMLA), covered employees at certain employers need to be given 12 weeks of unpaid medical or maternity leave annually if they need it. Your employer cannot fire you because you get sick or become pregnant.

Filing a Discrimination Claim or Complaint

You cannot be discriminated against based on your sex, race, religious beliefs, age and disability. If you file a claim against your employer or make a formal or informal complaint, the employer cannot take adverse actions against you due to your complaint or claim.

Supporting a Co-Worker Who has a Discrimination Claim or Complaint

If a co-worker asks you to support their claim, your employer cannot take action against you.

Being a Whistleblower

Under certain circumstanced, if you alert the authorities to unsafe or unlawful practices at your employer, the employer cannot take action against you.

What Counts as Retaliation?

Employers can try to retaliate against employees in many ways, ranging from terminating an employee to making it difficult for them to do their job. Some employers try to create an unwelcoming or unpleasant atmosphere in the workplace in the hopes that the employee will decide to quit.

A few examples of workplace retaliation include:

An employee announces a pregnancy and requests maternity leave. Soon after their request, the employer cuts the employee’s working hours in half or changes their shifts.
An employee files a complaint alleging discrimination. Soon after, the employer demotes the employee.
An employee requests accommodation due to a disability. Soon after, the employer issues a poor employee performance review and reduces their pay.
An employee reports a manager for sexual harassment. Soon after, the manager begins telling offensive jokes or making threats against the employee.

The above are just a small sample of possible forms of retaliation. If you believe your employer is taking adverse action against you, an employment law attorney can help you determine whether you have a case.

Can You Sue Your Employer for Employer Retaliation?

It might be worthwhile to pursue an employer retaliation lawsuit, especially if you have brought the matter to your employer’s attention and they have denied any wrongdoing.

If you decide to sue and your lawsuit is successful, you might be able to collect damages for one or more of the following:

Punitive damages
Lost pay
Pain and suffering
Attorney’s fees
Lost benefits

What you can recover from a lawsuit depends on the severity of the retaliation. Before you file a lawsuit, it is important to file a claim with the Equal Employment Opportunity Commission (EEOC) or the Occupational Safety and Health Administration (OSHA), depending on the type of activity.

If retaliation happens due to discrimination, file a claim with the EEOC. If your employer retaliated against you after you blew the whistle regarding unsafe working conditions, file a complaint with OSHA. An attorney can help you decide on the course of action to take.

How to Prove Employer Retaliation

Your employer is likely to deny that they are retaliating against you. It is important to gather as much evidence of retaliation as possible to prove your case. Documents that can help when proving employer retaliation include:

Emails
Text messages
Voicemails
Memos and letters
Journal entries
Calendar logs
Witness testimony, such as from co-workers who can support your claim

Keep accurate records of what happened and when, such as the date and time you filed a discrimination claim or reported unlawful activity and the date and time when the employer took action against you. Of course, always be careful not to misappropriate any company property and be aware of consent laws before recording any conversations.

It is also smart to set up an appointment with human resources (HR). During your meeting with HR, explain what happened and take notes on how they respond. Keep a record of the date and time of your meeting and the name of the HR representative you spoke with.

The more evidence you have to support your claim, the better an attorney will be able to argue your employer retaliation case in court.

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Learn More About Employer Retaliation Lawsuits

Whether pursuing a lawsuit is the right option for you depends on the specifics of your case and the chance of you winning the lawsuit. An experienced employment attorney can help you understand all of your options when you’re dealing with employer retaliation and guide you toward the course of action that is most appropriate for you.

The employment attorneys at Weisberg Cummings represent clients in a wide range of employer retaliation cases. Whether your employer has taken adverse action against you after you filed a discrimination claim, blew the whistle or stood up for a co-worker, we can help you get the justice you deserve.

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