We have all seen children and teenagers overreact with anger when they do not get their way. You might even have some stories from your college days about neighbors or suitemates in freshman student housing who played a series of escalating pranks on each other. A disproportionate response to someone’s unremarkable action can be funny in some contexts, and in others, it just makes the person who overreacted look bad. In the workplace, however, it is illegal.
For example, if an employee says, “I need to take two weeks off of work for a scheduled surgery,” it is illegal for the employee to say, “Go ahead and take 2,000 weeks off because you’re fired.” This is employer retaliation, and it often goes unreported either because employees do not realize that their employers’ actions were illegal or because they thought that fighting back against their employers’ illegal actions would be so expensive and stressful that it would not be worth it. The Spokane employer retaliation lawyers at HKM Employment Attorneys LLP can help you if your employer unfairly punished you for doing something that you were within your rights to do.
What is the Difference Between Retaliation and Your Boss Just Being a Jerk?
The first question to ask if you are considering filing an employment retaliation claim is whether your employer took adverse action against you. If the answer is no, then the problem you are dealing with at work is definitely not employer retaliation, although your employer might be breaking the law in some other way. If the answer is yes, then it might be a case of employer retaliation. All instances of employer retaliation involve adverse actions, but not all adverse actions count as employer retaliation.
An adverse action is an action by an employer that would be an appropriate response to misconduct and, in some cases, to poor job performance. The following are examples of adverse actions that an employer might take:
- Harassment of the employee or excess scrutiny and undue micromanagement of the employee’s work; these types of adverse actions are sometimes referred to as a hostile work environment
- Making the unilateral decision to transfer the employee to a different work location or change the employee’s work schedule or duties
- Unfairly negative performance reviews
- Denial of promotions for which the employee applies or raises for which the employee is eligible
- Reducing the employee’s pay or work hours
- Termination of employment
Sometimes adverse actions are the normal and expected response to certain actions by the employee. For example, it only makes sense to fire an employee who steals money from a cash register or to document an employee’s frequent tardiness in a performance review. Employer retaliation, however, occurs when the employer takes adverse action against an employee, not because the employee did something wrong but because the employee did something right. If the employer took the adverse action in response to the employee engaging in a legally protected activity, then the adverse action qualifies as employer retaliation.
Protected Activities Protect Employees, Their Families, and the Public
Just as adverse actions are activities in which employers legally can and sometimes should engage, even though it is burdensome to employees when they do so, protected activities are things that employees can and sometimes should do, even when this is a source of inconvenience or financial losses for the employer. Employer retaliation is when an employer takes adverse action against an employee because the employee engaged in a legally protected activity.
Some protected activities related to the right of employees to attend to their health and their family caregiving responsibilities. For example, employees have the right to file a workers’ compensation claim if they suffer an accidental injury at work or if they receive a diagnosis of a condition that workers’ compensation laws consider an occupational disease specific to the employee’s occupation. It is employer retaliation if an employer fires an employee or creates a hostile work environment shortly after the employee files a workers’ compensation claim. Taking a medical leave or family leave, as you are entitled to do under the federal Family and Medical Leave Act (FMLA) or the Washington Paid Family and Medical Leave (PFML) law, is also a protected activity. Employees who have worked full-time at their current jobs for at least a year can take FMLA leave, PFML, or both for the following reasons:
- A health condition that your doctor considers serious enough to require a leave of absence from work, usually because it has kept you bedridden for at least three days or because it required inpatient treatment
- Your spouse, parent, or child has a serious illness and needs care that would require you to miss work for more than a few days
- You have welcomed a child to your family through birth, adoption, or fostering
- Your spouse is active-duty military and has been injured in the course of his or her military service or must relocate because of military exigencies
Requesting accommodations for a documented disability is also a protected activity. Job applicants have the right to request accommodations for the interview and training process, even before they are formally hired.
Meanwhile, other protected activities relate to the employee’s right to notify authorities about dangers and misconduct in the workplace; by doing so, the employee is protecting the public from the employer’s actions which, if they continued, could cause preventable financial losses to consumers or taxpayers or could endanger the physical safety of customers or local residents. Many employer retaliation cases involve whistleblower actions in which employees notify regulators of violations of regulations or even notify law enforcement of crimes they have witnessed in the workplace.
Contact HKM Employment Attorneys, LLP, About Employer Retaliation
The Spokane employment lawyers at HKM Employment Attorneys, LLP, can help you if your employer has taken adverse action against you after you exercised a legal right or reported misconduct in your workplace. Contact the employment lawyers at HKM Employment Attorneys LLP in Spokane, Washington, to set up a consultation.
Call 509-260-7168, schedule a call, or fill out this form and we will get back to you ASAP.