By Weisberg Cummings, P.C. on December 7th, 2023
It should be an employer’s priority to ensure the workplace is safe and equitable for employees. Even so, some workers still face bullying and retaliation in the workplace. Employer retaliation happens when an employee engages in a legally protected activity and their employer takes negative action against the employee for doing so.
If you suspect you are experiencing retaliation at work by your boss, you have the right to explore your legal options. That’s why this guide provides you with the legal options you may pursue to reduce unfairness in the workplace.
What Is Considered Retaliation in the Workplace?
According to the U.S. Equal Employment Opportunity Commission (EEOC) laws, employer retaliation may be any negative response to a protected activity an employee took part in that may deter an employee from exercising their rights again. Here are some examples of what counts as retaliation:
- Overlooked promotions
- Demotions
- Loss in hours
- Salary reductions
- Denied opportunities
- Bullying or harassment
- Termination
How to Report Retaliation in the Workplace
If you believe you may have a claim for retaliation, you have the right to seek legal assistance and report it. Employer retaliation may be a complex matter to prove. Counter this challenge by building a strong foundation for your case. Here are four steps you may follow to make a retaliation claim against your employer:
1. Document the Protected Activity
An important step in proving retaliation is establishing that you took part in a protected activity. Be sure to document the protected activity you engaged in by keeping a record of all emails, complaint forms and witness statements. Here are a few examples of protected activities you have the right to pursue without encountering retaliation:
- Filing a discrimination complaint based on legally protected classes, such as race, religion, gender, age or national origin
- Reporting unsafe work conditions to OSHA
- Requesting accommodations for a disability
- Complaints about violations of the Fair Labor Standards Act (FLSA), including failure to pay minimum wage or overtime.
2. Determine the Adverse Action
Your next step should be to identify and prove your employers took an adverse action against you. Actions like demotion, termination, pay reductions, cuts in hours or other occurrences that negatively affect your employment are all potential adverse actions. Record your experience since you took part in a protected activity in the following ways:
- Write detailed notes on what happened, when it occurred and where it took place.
- Document exactly what your employer said, how you responded and whether there were any witnesses.
- Save any emails, letters and other relevant communications between you and your employer.
- Keep copies of any related complaints and reports you filed with your organization regarding the adverse action.
3. Establish a Plausible Connection
The most important step in proving employer retaliation is establishing how your employer’s adverse action stemmed from your protected activity. There are four main factors that may help you identify and prove a connection:
- Retaliatory motive: Has your employer ever made statements threatening to retaliate or alluding to it if you engaged in a protected activity? This may help you establish a connection. Be sure to keep a record of these actions or statements that imply taking an adverse action.
- Differential treatment: Let’s say, for example, your employer terminates your contract with the excuse of downsizing. You can see that no one else was let go even when they have the same or less qualifications than you. If this occurred after your protected activity, you may have a connection to support your claim. Similarly, certain behavioral changes after your protected activity may be an indication of retaliation.
- Temporal proximity: A strong plausible connection for courts is when the adverse action occurs within a few days or weeks after your protected activity. Be sure to record the time and date the adverse action occurred and how close it was to the date of your protected activity.
- Shifting or inconsistent explanations: Is your employer inconsistent with their reason for their advance action? Inconsistency may be proof of a pretext for retaliation. If your employer says they denied your promotion due to poor performance but then changes their reasoning at a later date to company financial issues, you might use this as a causal connection.
4. Speak With an Experienced Employment Law Attorney
Consulting with a knowledgeable attorney who is well-versed in employment laws and legal proceedings can help you maximize the potential of your legal options. Proving employer retaliation is a complex procedure. With an experienced retaliation lawyer, you may have someone evaluate your case, assist you in gathering relevant evidence and advocate on your behalf. This attorney may also help you negotiate with your employer and represent you in court proceedings if needed.
What Happens When You Report Employer Retaliation?
Your first legal option is to report or consult with your human resources (HR) department in the workplace. Explain your situation, including how you believe your protected activity led to an adverse action from your employer. Give this some time to see if the HR team can assist you and implement changes accordingly.
If your employer denies retaliation, you may reason with them directly and explain why you believe they are retaliating. End the discussion by asking them to stop their adverse behavior.
Let’s say you’ve given them a reasonable amount of time to correct their actions. What should you do if they refuse to cooperate? At this point, in cases of discrimination based on a protected class, it may be beneficial to file a formal complaint with the EEOC or the Pennsylvania Human Rights Commission (PHRC) within 180 days from the day the advance action occurred. It is important to move quickly because some types of retaliation claims, such as retaliation for filing a claim with OSHA, must be filed within 30 days of your termination.
If you file a claim with the EEOC, PHRC or OSHA, the agency will then investigate the claim and your evidence. You may then proceed to resolve the issue through conciliation or mediation if they believe your case is valid. This may be an appropriate time to contact an employer retaliation lawyer to help you achieve a desirable outcome.
In extreme cases, you might find that these methods prove ineffective, leading you to file a lawsuit against your employer in court, if permissible by law. The litigation process for this involves the gathering and exchanging of evidence to support your claim, while your employer’s attorney will aim to prove the adverse action was due to business reasons.
Keep in mind that going to trial is usually a last resort. In most cases, employees aim to primarily resolve the issue through settlements or a similar dispute resolution method with the help of an experienced attorney.
Contact an Attorney From Weisberg Cummings, P.C. for Assistance
Taking legal action against bullying and retaliation in the workplace is essential to maintaining your employment rights and reducing the chances of your employer doing the same to other employees. For legal assistance, we recommend consulting with a knowledgeable attorney from Weisberg Cummings. Our attorneys are skilled in employment law and have combined experience of over 40 years.
By working with us, we may assist you in exploring your legal options and determining an effective course of action. Call our team at (855) 716-2367 or contact our attorneys at Weisberg Cummings online so we can help you create a legal strategy that meets your needs.
