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Friday, September 9, 2016

Is Retaliation Illegal? Sometimes

Lots of people approach me every week and say they feel they were retaliated against. I usually have to ask, "Retaliation for what?" I think there's a basic misunderstanding of what retaliation is, and when it's illegal. The first part of the problem is understanding retaliation itself. Webster's defines retaliation as:
To do something bad to someone who has hurt you or treated you badly : to get revenge against someone
So retaliation = revenge.

The next issue, which is the core problem in retaliation cases, is whether what you did that was "bad" in your employer's eyes is something that is legally protected against retaliation. Here are some examples:

1. Complaining about your boss being incompetent: Your boss is pretty much guaranteed to retaliate if you complain about him to management. If you complain that he's incompetent, you have zero legal protection. He's allowed to exact his revenge. However, if you discuss with coworkers that your boss is a terrible manager and you go to his boss or HR to discuss improving your working conditions on behalf of yourself and your coworkers, then you may well be protected by the National Labor Relations Act.

2. Complaining about illegal activity: If you complain that a coworker or your boss is embezzling company funds, taking kickbacks or stealing company property, you probably have zero legal protection (if the company is publicly traded, you may have some protection as an SEC whistleblower, but most people have no protection). And I see it happen time after time, that an employee reports that a coworker is ripping the company off and they are retaliated against. However, if you complain that he's trying to make you defraud Medicaid or do something else that's illegal on behalf of the company, you may well be a protected whistleblower.

3. Complaining about bullying, hostile environment or harassment: Bullying is only illegal in Tennessee, and only if you're a government employee in Tennessee. Complaining about bullying comes with zero legal protection against retaliation. If you complain that you're in a hostile environment or being harassed, you're complaining about bullying. Again, zero legal protection. However, bullies tend to pick on the weak and the different. If you report that the bully is targeting you or others around you based on race, age, sex, national origin, religion, disability, pregnancy or other legally protected status, then you have legal protection against retaliation. You have to add the discrimination piece to have legal protection. 

The other possible legal protection if you complain about bullying is the National Labor Relations Act. If you discuss with coworkers that the bully is making life miserable and you go to management or HR to report this on behalf of coworkers and yourself (and you aren't a supervisor, and you are otherwise covered under the NLRA) then you may be legally protected against retaliation.

4. FMLA, worker's comp claims, disability accommodations: You do have legal protection against retaliation for seeking a remedy under many employment law statutes. If you take Family and Medical Leave, make a worker's comp claim or seek accommodations for a disability, you are likely protected against retaliation. However, if you just take sick time or vacation time, most states have no law protecting you against retaliation for that.

5. Complaining to police: If you're punched in the face by a coworker or threatened, most states don't legally protect you against retaliation for going to the police. However, EEOC says, in its latest guidance on retaliation, "it is protected opposition for an employee to contact the police seeking criminal prosecution of a coworker who engaged in a workplace assault motivated by disability, race, or sex, even though it is not a complaint to a manager or to a government agency that enforces EEO laws." So you're legally protected if your coworker punched you due to your religion or race. You're also legally protected if you file a police report about rape at work. 

6. Complaining to DOL, OSHA, EEOC: If you go to the Department of Labor to complain about unpaid overtime, OSHA to complain about workplace safety issues or EEOC to file a charge of discrimination, you are always legally protected against retaliation.

So you can see that retaliation is mostly legal. However, in many situations it only takes a little change in your complaint or activity to be legally protected against retaliation. The way you complain makes all the difference. Think carefully before you make a complaint at work if you want to prevent retaliation.

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I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.