Retaliation

Laws that create substantive employment rights protect employees from retaliation when they exercise those rights. Employees exercise substantive rights when they oppose discriminatory employer conduct, usually by making a complaint, and when they participate in proceedings involving the law, like providing witness testimony in a sexual harasssment investigation or lawsuit.

When Employers get Mad and Get Even

Retaliation claims require proof that:

  1. An empployee engaged in protected conduct;
     
  2. The employer knew it and took an “adverse action” against the employee; and
     
  3. The adverse action and protected conduct are causally connected.

See, e.g., Adair v. Charter County of Wayne, 452 F.3d 482 (6th Cir. Mich. 2006) (citing Williams v. Gen. Motors Corp., 187 F.3d 553, 568 (6th Cir. 1999)) (FLSA claims).

Retaliation claims happen because, when people get mad, they get even. Employees run a risk of retaliation when, for example, they report unsafe work conditions to OSHA. To encourage employees to report unsafe conditions, and to protect them from retaliation, Section 11(c) of the Occupational Health and Safety Act prohibits retaliation.

Protected Activity Defined

Protected activity means employee conduct that the law specifically protects from retaliation. As a general rule, laws that create substantive rights, like the right to be free from discrimination, or the right to a minimum wage and overtime wage, also prohibit retaliation against employees who exercise those rights. The prohibition may not explicitly refer to retaliation, though. The United States Supreme Court found that Congress intended to prohibit retaliation for complaining about age discrimination in federal employment by its definition of "discrimination,” which did not mention retaliation, on the theory that Congress intended to prohibit discrimination against people who complained about discrimination.  

Protected conduct typically includes employee complaints or reports of unlawful conduct, as well as employee participation in proceedings involving the law. Complaints can include verbal statements made to management, so long as the verbal statement is sufficiently clear and detailed that a reasonable employer can understand it as an assertion of rights and a call for protection. Anti-retaliation laws also protect:

  1. employees who participate in proceedings involving the law, like witnesses in an investigation;
     
  2. employees who did not engage in protected conduct themselves, but are closely connected to someone who did; and
     
  3. potentially, former employees, when the employer retaliates against them for filing suit, by asserting frivolous counterclaims against the former employee who filed the suit.

Tangible Adverse Employment Actions

Employees cannot go to court for every adverse action that happens at work. Employment retaliation law requires a tangible adverse action, like something that hits the employee in the wallet. Terminations, demotions and suspensions without pay qualify as tangible, adverse actions. Verbal reprimands, by themselves, do not.

An adverse employment action becomes tangible when it would chill a reasonable employee from engaging in the protected conduct.  An employee's unpaid suspension was a tangible, adverse action, even after the employer changed the suspension to a paid suspension, since the message made by the unpaid suspension, which took place over the December holidays, was enough to chill other employees from engaging in protected conduct.

Reasonable, Good Faith Belief

When employees complain that someone within the employer's control violated their rights, they might be wrong. That does not, however, make them fair game for retaliation. As long as employees have a good faith, reasonable belief in their complaint, the law should protect them from retaliation.

A belief may fail the good faith, reasonable belief test even if sincerely held, where the employee lacks a sufficient factual basis for making the complaint. The United States Supreme Court once found that a woman who complained about her supervisor's comment on the breasts of an applicant for employment was not protected from retaliation because supervisor's comment could not, in the court's opinion, support a reasonable belief that such conduct amounted to sexual harassment.   

Employees who make false complaints of unlawful conduct, knowing they are false, deserve to get fired. The law allows it. Employees should also avoid the temptation to time good faith complaints for strategic advantage, like by waiting until their final attendance warning to complain about their supervisor's creepy behavior. Engaging in protected conduct does not save employees from termination. It only protects them from termination because they engaged in protected conduct. If the employer has a legitimate business reason to terminate the employee, like too many attendance points, it is free to terminate for that reason. Engagin in protected conduct will not save the employee, and it may hasten his or her demise by angering the employer.

Causal Connection and Timing

The sooner an adverse action follows protected conduct, the easier it is to believe that the protected conduct caused it. The opposite is true too. If the adverse action happens months or more after the employee engaged in protected conduct, the causal connection becomes difficult or impossible to prove

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