Experiencing workplace retaliation can be one of the most frustrating and humiliating experiences an employee can go through. However, if you believe you’ve been a victim of workplace retaliation, you have a right to pursue litigation and get the compensation you deserve. To go through the proper steps and give your case the best chance at succeeding, read on to learn how to deal with workplace retaliation the right way.
Workplace retaliation is when an employer unjustly punishes or fires an employee, based on revenge or anger, for an employee engaging in or pursuing a legally protected activity. For example, an employer may retaliate against an employee for reporting sexual harassment to HR. This report may be against the employer or not. Either way, this may cause the employer embarrassment, causing them to use their power of authority unjustly.
Regardless of the reason, workplace retaliation is illegal, and it is within your legal right to pursue litigation against the employer. However, due to its legal complexity, there are appropriate and inappropriate steps that you as an employee need to consider.
Before moving on to the legalities, you should know what workplace retaliation looks like. This is the first step in identifying whether your case will hold any water if it goes to civil court. There are a few common activities that may incite an employer to engage in workplace retaliation. Often an employer will retaliate if an employee files for worker compensation, refuses to engage in illegal activities, files a claim against the employer, tries to take earned and protected leave of absence, or participates as a witness in a case already active against the employer.
Workplace retaliation may look quite different and does not always manifest as an employee being immediately fired. Due to strict laws and regulations, employers often find more subtle ways to punish and retaliate against an employee. This may include, but is not limited to:
Because proving that these events occurred due to an employer retaliating, it’s best to pursue action as quickly as possible.
There are quite a few laws and acts regarding workplace retaliation that you should become familiar with if you intend to pursue litigation. These laws are Title VII of the Civil Rights Act of 1964, The Occupational Safety and Health Act, The Family and Medical Leave Act, The Fair Labor Standards Act, and the National Labor Relations Act.
Title VII prohibits virtually all forms of discrimination in the workplace, with special protection against an employee who engages in protected acts. This law also protects employees engaging in discrimination or harassment complaints.
The other laws are more particular about what they protect but are implemented because employers often retaliate against these groups of people. For example, The National Labor Relations Act protects employees who take action to improve working conditions, in or out of a union, against employee relations. Similarly, The Occupational Safety and Health Act protects employees from retaliation if they attempt to improve their workplace.
The Fair Labor Standards Act and The Family and Medical Leave Act protect employees who complain about wages and employees who request time off, respectively. All these laws are designed the way they are because the organizations that make them know some employers will attempt to snuff out an “insurgency” to gain complete and total control. This is directly against the foundational morals of the United States, so don’t be afraid to take legal action.
First, check your contract and employee handbook for information on the next steps you should take. Typically, a company will outline the process you must take to file a complaint. Make sure you follow these outlined steps quickly and precisely. However, if you’ve reviewed your contract and handbook thoroughly but can’t find the appropriate steps to take, here’s what you need to do.
First, if you feel safe doing so, contact HR and file a complaint. Some legal experts may advise you to talk to your employer first to gauge whether this was a misunderstanding, but never do so without making an appointment with HR and having everyone present. If you don’t feel safe doing so or contacting HR proves fruitless, then your next step is to start gathering evidence.
Have print and digital copies of correspondence, copies of your performance reviews, and copies of your contract and employee handbook. If you feel comfortable doing so, you may request any witnesses to write or record their experience. However, do not keep any of this at your place of employment, but keep physical backed up digital copies at home. This is to avoid any evidence tampering.
To ensure evidence has not been manipulated, do not let your employer know you’re filing a complaint with the EEOC until you’ve gathered as much as possible. Still, ideally, you won’t mention anything at all.
It is highly prudent to hire a lawyer. If possible, you should hire one before you start gathering evidence. This is because a lawyer can tell you if your case holds any water, so you don’t waste any time on a case that won’t go to court. In addition, a lawyer will help you gather evidence and tell you what to look for, so no stone goes unturned.
Then, your lawyer will contact the EEOC and help you file a complaint. You must file the complaint within the first 180 days after the alleged incident. Your lawyer will also inform you if the state covers a 300-day extension under specific anti-discrimination laws.
Part of the reason it is so critical to hire a lawyer is that an investigation under the EEOC can assume to 10 months. If they find no proof of your allegation, you must then take the case to court on your own. A lawyer can ensure that you have a case, and you’ll be less likely to waste months of your time.
After you’ve hired a lawyer, compiled your evidence, and filed a complaint with the EEOC, you’ll have to wait until the investigation is complete. However, before the investigation, the EEOC will reach out to your employer and inform them of your allegation. At this point, your employer may try to settle with you out of court. Regardless of your lawyer’s advice, you can settle out of court if you choose.
However, remember your employer knows how much time, money, and effort it takes to bring a case to court and follow through. This means that your employer may offer you much less than you’re entitled to. If you feel their offer is enough and worth it rather than putting in all the effort of going through civil court, you can accept the offer. You are not required to take the offered out-of-court compensation if it is not enough.
If you choose not to take the settlement, your case will go to civil court, where they will review the evidence presented and determine whether the allegation is correct and how much compensation you’re entitled to receive. The average amount of compensation varies widely from $5,000 to $80,000. This number can change, though, and include pain and suffering, lost benefits, lost wages, and may include punitive damages if the act proves egregious enough in court.
Now that you know how to deal with workplace retaliation the right way as well as what to expect, you’re better prepared to get your legal rights upheld and receive the compensation you deserve. If you’re looking for a representative with experience, Title IX discrimination lawyer Tamara N. Holder can help you get the job done correctly.
