Retaliation takes place when an employer punishes an employee for engaging in legally protected activity. Legally protected activity is conduct that has protection under the law because of a statute, regulation, code, constitution, or other form of public policy. Retaliation can come in many forms, to include but not limited to, termination, demotion, salary reduction, discipline, harassment, job reassignment, or shift changes. For retaliation to support a lawsuit there must be some form of damage to the employee caused by the retaliation. Generally, the damage caused to an employee because of retaliation is some form of adverse employment action like a termination, demotion or salary reduction, where there is some tangible loss to the employee. However, other more subtle conduct can support a lawsuit for retaliation when that conduct discriminates against an employee as to the terms, conditions, or privileges of their employment.
An employee complains about sexual harassment and is involuntarily reassigned to the night shift so they do not have to work with the harasser any longer. The employee tells their employer they do not want to work the night shift, but the employer says it has no other choice because the harasser is needed on the day shift. This is unlawful retaliation because the employer cannot punish the employee for complaining by forcing them to work a less desirable shift.
An employee loads packages in containers for a delivery company. One day while loading, the employee discovers a package leaking a liquid that is giving off fumes in the container he is loading. The liquid, which smells like solvent or fuel, leaks all over the floor of the container filling the container with fumes. The employee leaves the container to tell his supervisor. The supervisor goes into the container and removes the package that is leaking, and tells the employee to get back to work. The employee refuses to go back into the container because it is still full of fumes from the liquid that leaked all over the floor. The supervisor tells the employee the fumes will not hurt him, so he needs to get back into the container and start loading, or he will be terminated. The employee does not believe the fumes are safe to breathe, so he refuses to go back into the trailer. The employee is terminated for refusing to work, and insubordination. This is unlawful retaliation. The employee has a good faith belief that breathing the fumes are unsafe or hazardous, so his refusal to go into the trailer and breathe the fumes is legally protected activity.
An employee is paid $15 an hour. He works 10 hours in one day. The law requires he be paid overtime for the two hours he worked in one day, beyond his regular eight hour day. His employer does not pay him at an overtime rate of pay (time and a half) for the two hours. The employee complains to his boss that he should be paid overtime for the two hours. His boss tells him there are plenty of employees who want his job, so if he continues to complain about not being paid overtime, he will find someone else to do his job. The employee tells his employer he is going to complain to the Labor Commissioner. The employer fires the employee for insubordination and threatening his boss by complaining. The employee’s actions of complaining about not being paid overtime are legally protected, and his boss has wrongfully terminated him for complaining about not being paid properly.
It is important to remember that not all complaints are legally protected. For example, if you complain that your supervisor is incompetent, and you are terminated for it, the complaint is probably not legally protected. If you have time, always try to speak to an attorney before complaining, to find out if your particular complaint is legally protected.
The most common defense by an employer to a retaliation lawsuit, regarding a legally protected complaint made by the employee, is for the employer to lie about knowing about the complaint. If the legally protected complaint was made orally, it is likely the employer will lie and say the complaint never happened. That’s why, if possible, complain in writing in a way you can prove the employer received the complaint.
Preserving evidence while your rights are being violated is generally the best way to start preparing a civil case. Always consult an attorney when you believe your rights are being violated to gain a correct understanding of what your rights are. Moreover, an attorney can help you right a proper complaint letter that will document the denial of your rights, and put your employer on notice that they need to remedy the situation.