One of the most nefarious and most effective tactics of bullies is to threaten to make their tormenting of you even worse if you tell someone about the bullying. You would hope that the worst sides of human nature that manifest themselves in the schoolyard and in cyberspace would have no place in the workplace, but unfortunately, the competitiveness of the work environment brings out the worst in some people, and being in a position of power brings out the worst in others. Unfortunately, employers sometimes retaliate against employees for exercising their rights, either to pressure those employees to stay silent or to intimidate others who might also be in a position to complain. In other words, just because the law gives you the right to speak up about something or to request resources to which you are legally entitled, it is not always easy to do this in practice.
When employers prioritize their own interests over those of employees, they may sometimes penalize employees for engaging in activities in which the employees have the right to engage. The Huntsville employer retaliation lawyers at HKM Employment Attorneys, LLP. can help you file a complaint arising from retaliation by your employer.
When are Adverse Actions Against the Law?
- Adverse actions are anything an employer does to penalize an employee or to withhold a reward. These are some examples of adverse actions, some of which every employee experiences at least once in his or her years in the workforce:
- Refusal to hire or rejection of a job application
- Negative performance reviews
- Disciplinary actions such as getting written up or put on some kind of probation, such as a performance improvement plan
- Micromanagement, bullying, or other actions that make your life at work unpleasant, that is to say, a hostile work environment
- Denial of promotions or raises for which you are eligible
- Demotion of undesired changes to your work location, schedule, or job duties
- Termination of employment
Sometimes, it is legal and appropriate for employers to take adverse actions against employees and job applicants. For example, it is appropriate to choose not to hire an applicant if the employer finds out that the applicant lied on his or her application. Likewise, misconduct and poor job performance are justifiable reasons for adverse actions ranging from negative performance reviews to termination of employment. A hostile work environment is the only adverse action that is never acceptable.
It is against the law for an employer to take adverse action against an employee when that adverse action constitutes discrimination or retaliation. In at-will employment states like Alabama, where it is legal to hire employees at-will instead of on a contractual basis, employers can fire employees whenever they choose and for any reason, as long as that reason is not discriminatory or retaliatory. Discrimination is when the adverse action is based on a protected characteristic of the employee, such as race, religion, sex, or age. Retaliation is when the adverse action is a response to the employee engaging in a legally protected activity.
What is a Protected Activity?
Protected activities are those that, by their nature, put the employee at risk of getting on the employer’s bad side but which involve the exercise of the employee’s rights under federal and state labor laws. When an employer penalizes an employee for engaging in a protected activity by taking an adverse action against the employee, this is employer retaliation, and it is against the law. The following are legally protected activities:
- Voting in an election
- Filing a workers’ compensation claim arising from a work injury or occupational disease
- Requesting accommodations for a disability
- Taking an unpaid leave of absence from work for health reasons or family caregiving obligations, pursuant to the Family and Medical Leave Act (FMLA)
- Reporting workplace safety violations to the Occupational Safety and Health Administration (OSHA)
- Filing an employment discrimination complaint with the Equal Employment Opportunity Commission (EEOC)
- Cooperating with a civil or criminal investigation into any matter connected to your workplace
- Reporting any kind of misconduct at your workplace to the relevant regulatory agency
- Reporting crimes at your workplace to law enforcement
To prevail in a retaliation claim, you must prove that your participation in a protected activity was the direct cause of the employer’s adverse action against you. Your employer might argue that the adverse action was due to your own poor performance or misconduct at work and was therefore justified, but the burden of proof is on you to prove otherwise.
How to File a Complaint About Employer Retaliation
If a work supervisor retaliated against you for engaging in a legally protected activity, you might be able to resolve the matter by complaining to the human resources department at your organization. If the retaliation escalates after this, you should next contact the Equal Employment Opportunity Commission (EEOC). The deadline for contacting the EEOC is 45 days after the most recent retaliatory action. Based on your initial meeting with an EEOC counselor, the EEOC will conduct an investigation to contextualize your complaint and see whether your statements are credible and whether the actions you alleged are serious enough to warrant a lawsuit. It will interview other employees of your workplace; they might corroborate your statements or even tell of other incidents of discrimination or retaliation that you did not know about. If the EEOC authorizes you to sue your employer, you may file a lawsuit against your employer.
If you are a federal employee, you should start by contacting the Office of Special Counsel (OSC). Likewise, if you work for a company that does business with the federal government, your report of misconduct, the protected activity that exposes you to retaliation, could be a qui tam action pursuant to the federal False Claims Act.
Contact HKM Lawyers About Employer Retaliation
The Huntsville employment lawyers at HKM Employment Attorneys, LLP, can give you advice about retaliation against employees who engage in protected activities. Contact the employment lawyers at HKM Employment Attorneys, LLP, in Huntsville, Alabama to set up a consultation.
