To have a claim for retaliation you must have exercise a protected right and as a result, suffered some adverse retaliatory action by your employer at the same time or shortly after exercising your protected right.
Who is protected?
Employees, applicants for employment and former employees are protected from retaliation. Partners and independent contractors are not protected. How can I tell if I am an independent contractor or an employee?
- What is a protected right?
You cannot be retaliated against for exercising a protected right. Protected rights may include:
- - complaining to a supervisor about unlawful discrimination;
- - threatening to file a charge of employment discrimination;
- - participating in a legal proceeding, like a deposition or court case, in a manner that affects your employer's legal rights, like by testifying against them;
- - defending yourself against charges of sexual harrassment, unless you were found culpable;
- - refusing to obey an order you reasonably believe to be discriminatory or illegal;
- - opposing of your employer's employment practice that you have a reasonable and good faith belief is unlawful;
- - some examples of how you may oppose your employer's employment practice and be protected from retaliation:
- - complaining to your supervisor about discrimination or overtime,
- - asking your employer if they intended to discriminate in making an employment decision,
- - having complained to a government agency,
- - whistleblowing, meaning reporting violations of state or federal law.
- What constitutes retaliation?
Your employer must have retaliated against you in a way that would be harmful enough to dissuade a reasonable employee from exercising a protected right against your employer. As an example, if your employer does not invite you out to lunch, that would not considered retailation, but if the lunch was also a training program that you should not be missing that would most likely be considered retaliation. As a rule of thumb a petty slight, minor annoyances or lacking good manners are not retaliation. These are some examples of retaliation:
- - filing false criminal charges against an employee who exercises a protected right;
- - refusing to give a reference or giving an unjustified negative reference after the employment relationship has ended based on a motive to retaliate;
- - changing your schedule may be retaliation if your employer knows that your schedule will not permit you to come to work at other times (like if you are a mother of school age children);
- - excluding you from a training exercise that contributes to your professional advancement;
- - reassigning your job duties so that you have to do more difficult or strenuous duties;
- - reassigning your job duties so that you have less time to do the duties you have been doing;
- - suspending you without pay even if you eventually receive full back-pay;
- - giving you a smaller raise than other employees;
- - denying or delaying promoting you;
- - a negative performance review that you did not deserve that might impair future employment prospects;
- - a campaign of hostility and harrassment that is sufficiently severe by coworkers or supervisors that management does not protest;
- - exclusion from meetings, denial of administrative support and transfer of job duties;
- - a series of retaliatory acts that alone may not be enough for retaliation, but together are sufficient, like, reducing your duties, disciplining you, giving you negative personnel reports and giving you remedial training.
Who are you protected from?
You are protected from your employer retaliating against you if your employer employs more than 15 or 20 people depending on the laws used to fight your claim.
What am I entitled to if I get retaliated against?
You are entitled to several types of damages if you are retaliated against.
- If you are fired or laid off, you are entitled to the wages you would get if you were employed until a jury believes it is reasonable that you would find another job.
- If you are demoted, you are entitled to the difference between your wage from your old position to your new position.
- If you can show that you have emotional distress from the events leading up to the retaliation and your inability to find a new job, you may be entitled to emotional distress damages.
- You may also be entitled to money intended to punish your employer for retaliating against you that would be a multiple of your economic and emotional distress damages.
If you feel you may be unlawfully retaliated against, contact us so we may review your situation with you.