Labor and Employment

Retaliation and Whistle Blowing FAQ

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Q: Can labor unions and employment agencies be guilty of retaliation?

  • A:Yes. Like any other employer, labor unions, or labor organizations, and employment agencies are barred from retaliating against you because you engaged in protected activity. So, for example, if your union expelled you from its membership, or an agency refused to send you on a job, because you filed a discrimination claim against it, they can be liable for retaliation.

Q: Does retaliation happen a lot?

  • A:Unfortunately, yes. In 2008, the EEOC received 32,690 charges of employment-related retaliation. This number is up from 26,663 filed charges in 2007. And these numbers don't include charges filed with state anti-discrimination agencies or other federal agencies that handle retaliation claims, like the US Department of Labor.

Q: How do I prove retaliation?

  • A:Retaliation happens when your employer takes an "adverse action" against you because you did something you were legally allowed to do, which is called "protected activity." So, in order to prove a retaliation case, you have to be able to prove that:

  • You engaged in protected activity, which usually involves exercising some right you have under a state or federal law, like filing a discrimination claim with the Equal Employment Opportunity Commission (EEOC)

  • Your employer took some adverse action against you, like fired you

  • Your employer took the adverse action because you engaged in the protected activity

Q: Other than firing me or laying me off, what other actions might trigger a retaliation claim?

  • A:There are many things your employer can't do in retaliation for your conduct. These are called adverse actions and include:

  • Refusing to hire you, giving you a promotion, or demoting you

  • Giving you negative performance reviews or appraisals that are unwarranted or baseless

  • Giving other employers negative references that aren't justified

  • Threatening to file a lawsuit or criminal charges against you

Adverse actions don't include stray negative comments in an otherwise positive or neutral performance appraisal; being "snubbed," or negative statements or references that are based on the worker's poor work history.

Q: Retaliation is the same thing as whistle blowing, right?

  • A:They're similar, and at times they're connected, but they're not the same thing. Retaliation is when your employer takes some action against you because you engaged in some protected activity, like filing a claim for workers' compensation benefits. Whistle blowing is when you report your employer's illegal activities to the government or law enforcement. It's really an example of protected activity. So, your employer can't fire you because you reported, or blew the whistle on, unsafe working conditions to the Occupational Safety and Health Administration (OSHA).

And, with one limited exception, you generally don't get any "reward" for starting a whistle blower action. That is, you're protected from being retaliated against by your employer, but you won't get rewarded for reporting the illegal activity. If you file a qui tam lawsuit on behalf of the US under the federal False Claims Act, you are entitled to keep a portion of any damages your employer has to pay to the government.

Q: So, I can't be fired or laid off after I do some protected activity?

  • A:Sure you can. Engaging in protected activity won't necessarily save your job. Your employer simply can't fire you because you did some protected activity.

For example, say an employer announces that it will be making layoffs in the near future because of a poor economy. A few days later, a worker is hurt in a work-related accident and files a worker's compensation. She'[s later laid off, along with several co-workers in her department. Unless she can prove that the employer laid her off because she requested workers' compensation benefits, the protected conduct of filing the claim won't save her from being laid off.

Q: What are protected activities?

  • A:Protected activities or conduct are things that you can do without having to fear retaliation by your employer. Many things qualify as protected activities, including:

  • Complaining to anyone, like a co-worker or your spouse, about your employer's discrimination

  • Threatening to file a charge of discrimination with the EEOC, requesting medical leave under the Family and Medical Leave Act (FMLA), or filing a claim for workers' compensation benefits

  • Refusing to do something your employer orders you to do because you reasonably believe that what you're being told to do is illegal

  • Testifying as a witness in a lawsuit against your employer that's based upon it's unlawful conduct, such as discriminating against its employees

  • Helping law enforcement or a government agency, like the Securities Exchange Commission or OSHA, to investigate claims filed against your employer

Q: What are the remedies for retaliation, that is, why should I sue?

  • A:Your remedies, or what you can recover from your employer for its retaliation against you, will vary depending on the law your employer violated. And, there are different remedies available in federal laws and state laws. Nonetheless, if you're successful in your retaliation claim, your damages may include:

  • Reinstatement, meaning your employer has to give you your job back

  • Back pay, or the wages you didn't earn because of the retaliation

  • Double the amount of any back pay award (sometimes called "liquidated damages")

  • Front pay, or an amount that's meant to pay your for future wages you won't earn because of the retaliation

  • Punitive damages, which are meant to punish the employer and persuade it not to retaliate in the future

  • Your attorney's fees

Q: What if I'm wrong about my employer's actions or conduct?

  • A:Generally, if you have a reasonable, good faith belief that your employer is doing or has done something unlawful, and your response to the wrong doing is reasonable, the law will protect you from retaliation. Even if the EEOC and your attorney tell you that the employer hasn't acted improperly. For example, if you have a good faith belief that your employer is discriminating against you and others based on gender, a reasonable reaction may be to file a charge with the EEOC.

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