We are probably familiar with Hollywood movies or have read a book or two on how a disgruntled employer dismisses an employee for taking part in a protected activity or for refusing to meet their demands. Workplace retaliation is the illegal punishment put out on an employee for taking part in a protected activity. A good number of employees are not aware of their employee rights, and as a result, fall victim to workplace retaliation even though the punishment is due to involvement in a protected activity.
What are Protected Activities
The following constitutes protected activities for employees.
This is when an employee calls the attention of the government or regulatory agencies on illegal practices carried out by employers.
2. Complaints Over Unpaid Wages
There are employers who fail to pay their employees wages. The employee has the right to report such an employer.
3. Making Enquires on Workplace Rights
Employees are under protection to seek information especially legal advice on their rights within the workplace.
4. Complaints on Harassment or Discrimination in the Workplace
The workplace is filled with lots of biases and prejudices in such a way that the staff could be discriminated against based on their gender, race, sex, disabilities, or age. Employees could air their grievances whenever they feel they are being discriminated against or harassed.
- When employees perceive that working conditions are not conducive or are unsafe especially in relation to their health, it is within their rights to lodge a complaint.
Forms of Workplace Retaliation
Workplace retaliation comes in various forms, the following are the most common:
1. Termination of Employment
Most employers get back at their employees by firing them without cause. This is most common with state employees or those working in the private sector where their employers can lay them off for any reason. These people are employed ‘at at will’, they are different from public workers that cannot be dismissed from their jobs without cause or due process. Different states and countries run on different laws. So let’s say you work in Memphis, it’s important for you to find a lawyer that specializes in this area to fill you in. A reliable and experienced workplace retaliation lawyer in Memphis can ensure that your rights are protected. It is therefore of utmost importance to seek legal advice on these rights.
Another form of workplace retaliation is the use of threats. When a member of staff notices and calls attention to any suspicious activity in the workplace, they can be threatened into keeping quiet.
This is common when an employee is aware of incriminating information that they should have been oblivious of. In some cases, the employer can set up illegal surveillance on their staff in order to monitor their movements and activities, thus violating the employees’ right to privacy.
4. Transfer or Demoting
The employer could also have the person in question transferred to another sector where they would have little or no power or worse still; have them demoted.
5. Negative Reviews or References
In a bid to be spiteful, the employer can give negative references and ensure that their image is tarnished.
Other workplace retaliation includes denial of promotion, withdrawal of job benefits, suspension, reduction in pay, or refusal to pay for overtime.
What Makes a Workplace Retaliation Valid
- A workplace retaliation is valid if the employer is aware that the employee has exercised their protected activity and has reacted in response to the action.
A woman made a report about being transferred to another unit after she made a complaint about doctored financial accounts. She claimed that she was assigned to another department where she no longer has access to the documents, worse still, her present unit has more workload and less pay compared to the unit she was transferred from. Her employer counterclaimed that he was unaware of the employees’ use of protected rights, and he acted in the interest of the company as the employee has recently been performing poorly and causing the company a lot of losses.
In situations like this, if the court conducts an investigation and finds out that the employer is indeed unaware of the protected activity, and the employee is guilty of being unproductive in the company, the court would rule in favor of the employer.
- It is also valid if the employee can prove that, if it were not for their protected activity, the adverse action would not have occurred.
A Registered Nurse working in the operating room as the circulating nurse noticed that the surgeon—renowned for his exceptional surgical skills— who was to perform delicate surgery, had hand tremors. She reported this to the charge nurse and to her surprise, rather than have the surgeon prevented from carrying out the surgery, it was her license that was suspended.
She sued the hospital to court and the case was ruled in her favor. Apparently, she was also an exceptional nurse and there had been no record of medical malpractice on her files. Further investigations were carried out and it was discovered that the surgeon had advanced stage Parkinson’s disease and depended on the use of apomorphine to temporarily stop the handshaking.
- If a workplace retaliation case is lodged within three months of the alleged event, it would be easy to win the case. However, if a complaint is made after a year of the incident, it would be difficult to take up the case effectively.
Workplace retaliation statute is a powerful weapon employees use in order to ensure that they are treated fairly in the company they work for. It should, however, be noted that there must be a causal relationship between the adverse action and the protected activity. It is often difficult to prove bias or prejudice, so if an employee hopes to get justice, he or she must provide circumstantial evidence that proves that the adverse action occurred directly after a protected activity.