Understanding Workplace Retaliation

In Fiscal Year 2020, which ended on September 30, 2020, the Equal Employment Opportunity Commission (EEOC) received 67,448 workplace complaints of discrimination. Of those, 55.8 percent were for retaliation.

In addition, the Occupational Safety and Health Administration (OSHA), which oversees 22 federal whistleblower statutes, received 3,448 retaliation complaints. Most of these concerned employees face retaliation for reporting workplace safety and health concerns, totaling 2,539, or nearly 75 percent.

Employees are protected from retaliation both by federal and state law. The EEOC enforces the provisions of the Civil Rights Act of 1964 and subsequent anti-discrimination legislation. OSHA policies not only federal whistleblower statutes but also the Occupational Safety and Health (OSH) Act. California contains various retaliatory protections in its Labor Code, and complaints can be filed with the Labor Commissioner.

If you feel you’ve been retaliated against by your employer for participating in a protected activity, whether it was at work or during your off-hours, contact Wood Litigation, APC if you’re in the greater San Francisco Bay Area. Our attorneys will listen to your story, investigate, and advise you of your options. Likewise, if you’re an employer who is facing a charge of retaliation by an employee, bring your case to our attorneys. We will guide you on the proper response to help resolve the matter in the best way possible.

What Is Workplace Retaliation?

Retaliation is adverse action against an employee for participating in a protected activity. It is expressly prohibited for an employer to retaliate against a full-time, part-time, seasonal, probationary, temporary, or former employee, as well as against applicants who are engaging in a protected activity. The EEOC cites several examples of protected activities:

  • Filing a complaint or participating as a witness in an EEOC investigation or lawsuit
  • Communicating with a supervisor or manager about a workplace instance of discrimination or harassment
  • Answering questions during an investigation for discrimination or harassment
  • Resisting sexual advances or intervening to protect others
  • Requesting accommodation for a disability or religious practice
  • Asking managers or coworkers about salary information to uncover any discriminatory wage practices

OSHA adds other examples:

  • Raising a concern about a workplace condition or activity that could have an adverse impact on the safety, health, or well-being of the reporting employee, other workers, or the public
  • Reporting a suspected violation of law
  • Reporting an injury or being dissuaded from reporting an injury

California also protects employees’ political rights. If an employee participates in an after-hours political rally for a cause the employer doesn’t agree with and is punished at work in response, that is basis for a charge of retaliation.

What Retaliation Can Look LikeĀ 

Not every act of retaliation is as blatant as a demotion or termination. Some can be more subtle but have the same chilling effect on employee morale as to squelch certain protected activities. Retaliation can take the form of:

  • Denying overtime or promotion
  • Denying benefits such as time off
  • Intimidation
  • Disciplining
  • Making threats
  • Reducing pay or hours
  • Reassignment to a lesser position
  • Isolating the employee from coworkers
  • Altering work hours to disrupt the employee’s family and social life

Proving Retaliation

If you report an incident of retaliation to the proper agency, whether it be the EEOC, OSHA, or the California Labor Commissioner, they will investigate and seek to resolve the issue through mediation or negotiation. If that fails, they might institute their own legal action or assign the aggrieved employee the “right to sue.” If you do initiate legal action against your employer, you will have to show evidence of the following:

  • You participated in a protected activity.
  • You suffered a tangible adverse employment action.
  • There is a causal link between your activity and the adverse employment action.

On the third point of proof, employers will often argue that their action was taken for other reasons, often because of your overall performance or attitude at work. You must show that the adverse action was “because of” your protected activity.

Whistleblower Activities

OSHA also enforces 22 individual whistleblower protection statutes. Most of these are specific to industries involved with certain activities and substances. Examples of these laws include the Clean Air Act, the Federal Railway Safety Act, the Seaman’s Protection Act, the Safe Water Drinking Act, the Pipeline Safety Improvement Act, the Toxic Substances Control Act, and the Solid Waste Disposal Act. If an employee, for example, blows the whistle on an employer for dumping waste inappropriately and is retaliated against, OSHA would be the agency to field the complaint.

Getting the Experienced Legal Guidance You Need

If you’re an employee or employer involved in a retaliation or whistleblower situation and you’re not sure what steps you should take, or can legally take, contact us at Wood Litigation, APC. We can review the details of what happened and advise you of your options.

If you’re an employee, you may have to wait out an investigation by a watchdog agency, such as the EEOC, before you can take legal action on your own to recover for the damages you’ve suffered. If you’re an employer, the watchdog agency may be breathing down your throat to see what happened, institute workplace changes, and enforce a settlement. Either way, we’re here to listen, advise, and guide.

If you’re in San Francisco, or nearby in San Jose, San Mateo, Santa Clara, Oakland, or Alameda, contact us immediately at Wood Litigation, APC if an issue of retaliation arises.

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