Welcome And The Core Warning

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Hey, it's Mark, and welcome back to the another edition of the Employee Survival Guide, where I tell you what your employer does not want to tell you and a lot more. Today we're going to talk about knowing your rights at work regarding retaliation. Have you ever felt that something changed at work, especially after speaking out about something that you believe is wrong? Or when asserting your legal rights? Maybe a benefit you previously had is suddenly taken away from you, or you are being excluded from meetings or you received a disciplinary email shortly after you spoke out. If this has happened, you may have experienced retaliation. Some retaliation can be very explicit and easy to spot, but other times it can also be subtle and more insidious. In the work world, when we are inside the walls of our companies that I call private governments, you call them workplaces, we may forget the employee handbook or policies are not the laws of the land. Therefore, it's pertinent that employees, meaning you, educate yourself on what is illegal in the workplace to understand when they are being subject to legal disaliation. Employers and managers may think their actions are the norm, but that norm is subject to the laws that prohibit retaliation. This episode is designed to educate you, the employee, what retaliation is, what it looks like, what evidence you need to collect to prove it, and how to pursue a retaliation claim.

What Retaliation Really Means

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Retaliation is when an employer, through a manager, supervisor, administrator, directly fires an employee or takes any other type of adverse action against the employee for engaging in a protected activity. And I'll explain that in a second. An adverse action is an action which would dissuade a reasonable employee from raising a concern about a possible violation or engaging in another other protected activity, i.e., filing a complaint, either internally or externally. The reason why employers may retaliate against an employee can be complicated and nuanced, as most human behavior is. Our workplaces are filled with egos, power dynamics, pressures by companies to perform, pressures to please clientele, shareholders and boards, expectations of productivity and revenue, and countless other factors. Lawyers, lawmakers, and commentators may try to reduce workplace disputes to clear rules, but human behavior, as we know it, as we know it through this podcast, workplace dynamics and business pressures are often more complicated. The EEOC has commented on this topic, stating that the act of retaliation is equivalent to revenge, where a person perceives an unfair treatment and attempts to restore equilibrium by taking the matter into their own hands, or her hands. Research has consistently demonstrated that the desire for retaliation is common upon experiencing an offensive interpersonal encounter, particularly if the encounter threatens one's self-image. Furthermore, the EOC has stated if those accused sincerely believe they have done nothing wrong, or if they believe their offensive behavior was somehow justified, they may begin to ruminate and desire retaliation. Even given the sociological explanation for retaliation, it doesn't change the law. Thankfully, there are laws that protect employees from retaliation and explicitly lay out prohibition of retaliation for protected activities. Retaliation serves to chill employees' complaints or protected activities, which is why laws against retaliation exist. Unfortunately, retaliation happens far too often. I will tell you that by my professional experience that it happens far too often in my past nearly 30 years of doing this. And it has the desired effect. It is extremely inconvenient for your employer to hear, answer, or respond to a complaint, accommodation request, or other protected activity. The protected activity may disrupt productivity itself, sales, revenue, and simply just tick off your employer. Probably the latter is the most often how it happens, just ticking off your employer. They don't want to be told what to do. But we tell them what to do. So I continue on. But inconvenience is not enough to circumvent the law. We hope to empower employees at our firm to informing you of their rights to change the world of work for the better. Isn't that the reason why you're listening to this? Get educated. It's likely you have stumbled on this podcast episode because you feel something off at work and suspect you may be retaliated against. In

First Steps When Something Feels Off

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this case, you should immediately do the following. Preserve a personal timeline. Number two, check applicable deadlines quickly. Number three, submit written complaints to HR or supervisor, preferably in an email so it's timestamped. Number four, seek legal advice from an employment lawyer like myself before filing, recording conversations, or signing an agreement. Now, most prohibit prohibitions on retaliation protect employees who engage in what's called a protected activity. Therefore, employees need to understand that what protected activities are and keep watch for a legal retaliation for those activities.

Protected Activity Participation Vs Opposition

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They include complaints about workplace discrimination, a discriminatory workplace culture, violations of laws intended to protect health and safety, acting as a whistleblower, and requesting accommodations for a disability. All those things are protected activities. The law protects. The EOC, the Equal Employment Opportunity Commission, clarifies protected activities as quote, participation and opposition. There's two different types. Participation means taking a part in any employment discrimination proceeding, filing an EOC charge, probably the most common, serving as a witness, less common, because employees don't want to be witnesses, providing evidence or cooperation with investigations, which never happens. Employees can think of this as taking an active role in a discrimination proceeding. This protection applies regardless of whether the underlying discrimination claim succeeds or not. Now the opposition type of retaliation or protective activity protects employees' rights to push back on what they believe is illegal conduct. This can include complaining to HR about harassment, refusing to follow discriminatory orders, or supporting a coworker's discrimination complaint. The employee need not be correct about their belief, but they do need to have a reasonable good faith belief that something illegal happened. This is the pushback to conduct that employees do not agree with and often comes about when the employee is speaking out against something. Again, the opposition clause aspect is really about a good faith belief that you know something is wrong and you're complaining about. So it's the act of doing something. Now, examples of protected activities are this reporting discrimination. That can be in an email. It can be filing any EOC complaint, reporting harassment to HR or to your supervisor, participating in workplace investigations, as we said before. Complaining about wage violations can also result in retaliation under the Fair Labor Standards Act. Requesting medical or family medical leave can result in a retaliatory behavior by the employer because you're going to be leaving your employment for a paid or unpaid leave period, and that pisses people off. Requesting disability accommodations. This one is straightforward, but employers don't want to accommodate disabled employees. Just sorry. They push back. They make it difficult for you. Reporting or refusing to work in unsafe working conditions. Now, shame on employers if they make this happen, but we've seen it. And you have to report it. You can report it actually confidentially to the federal government and they will act upon it. Cooperating with government agencies, that's also an act of protected activity. Reporting what that your employer is doing something illegal, clearly, like telling the SEC that something illegal has happened that uh has affected the financial affairs of the company. Submitting a formal complaint with a state or federal agency is a protected activity, and it's probably the best thing you can do to protect your job while you're looking for another job and cause the employer to back off because once you engage in protected activity, the employer typically backs off for two months to three months or longer. What

What Retaliation Looks Like At Work

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does retaliation look like? It can be subtle, it can be blatant. It's also important to note that retaliation does not have to happen from one person. It can happen from multiple people, and I've seen this happen. Multiple people at work can retaliate against you as a kind of a cohort or a collective part of the management team to kind of corral and make your life miserable. If something feels off or makes you feel targeted, you should consider if you're being retaliated against and record the instance in an email, only in an email, and then follow up with some verbal, but then follow that up with an email. Some examples of retaliation are receiving unfair criticism or being embarrassed in front of other employees. That happens a lot. Being denied certain workplace benefits like training, travel, or even parking spots, that's something you have to review when you go through your narrative and look at how you're treated differently because after you complained, there's a kind of a before and after contrast between you and other people and what benefits they're getting. Being placed on a performance improvement plan, my favorite, and subjected to excessive coaching or discipline. If you're put on a pip, always reach out and file an internal complaint with HR, your belt, your boss, because a pip, when a pip happens, means you're being kicked out. And you need to build a case for a severance negotiation. Being subjected to a scheduled change or reduced hours, typically that's writing on the wall, get the heck out. Losing work duties or projects, again, a pretty self-explanatory example. Receiving negative performance reviews, very similar to a pip. And I will say that the negative performance review contrasts maybe the last year's review when you got it exceeds expectation and now your needs improvement. I see that a lot. You know, why does a person performance dip after you know 10 years at work? Uh is it because they're too old, maybe, or because they're female? Being assigned work assignments or goals that are nearly impossible to meet, that's what a pip does. I mean, you got to just stop there and pause. It happens every single time. Managers craft these new goals and expectations that you can ever meet, and you need to push back and say, you know what, that wasn't my job before I complained. And now it's my job. So, and you have to need to ask rhetorical questions to your boss about that because you don't expect a response, but it's in the email. So you're setting employer up. So you know that I'm all about setting employers up that make this kind of stupid shit mistakes like this. They think you're stupid not to fight back. So, but that's not you. Being blacklisted and impeding your ability to gain future employment, that happens more rarely, but it does happen. Reporting or threatening to report employee to a police or immigration authorities, maybe that's Son of the Times today that happens. I've never actually had a situation where that's happened. I've had police being called to the workplace, but it's like happens like you know 1% of the time. Being excluded from meetings, projects, and even communications, that happens a lot. And being isolated in general from your coworkers and from work tasks, etc. That's a pretty good strong list of things we see commonly happening. While employers may attempt to frame these actions as performance-based, good luck with that, timing, context, and patterns often expose retaliation for what it is. If you can identify protected activity that you engage in before you experience the action, the adverse action, you may be a victim of retaliation.

Documenting And Using HR Complaints

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So what do you do if you believe you are being retaliated against? Document the shit out of the case. You know I say that every time. Every email, text message, or even verbal communication should be saved, recorded in some manner. The company equipment should not be used to save documents. You need to basically pull things offline for yourself to support your case. The employer will be watching you because they have the technology now to see it. Even if you forward relevant documents yourself, figure out ways to do it in such a way that maybe it's a screenshot off your phone or something. You should always assume that your employer is monitoring your work and your work equipment. Number two, formally submit a complaint to HR via email or to your supervisor and specify that you feel you're being retaliated against for your protected activity. I mean, you have to use the words that they're targeting you, they're discriminating against you. You know, you have to don't be vague about it. Don't try to, you know, try to preserve bridges because you don't want to say the nasty words of discrimination and retaliation. Complaints to HR often put employers on notice and help delay termination. They create more paychecks for you, and also create a formal record that we use to create cases and also to develop severance negotiation positions. Because at the end of the day, that's what you're trying to do. You don't like it, you don't get over that part, but the employer has a right to kick you out if they want to, and you have a right to fight back. And there are no rules for this engagement, and you can use any tool that uh we have crafted for you in the form of uh podcast episodes, you can use AI, but you can create your own case. You can try that's the whole idea here is to empower you to advocate for yourself. And then finally, if you just just can't stomach that and you just it's too stressful, you can use an employment attorney like myself. We'll quickly march in and examine the facts of the case and set your case up for you against your employer. So, how

How To Prove Retaliation Over Time

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do you prove retaliation? Elements may be vary by state, but all the retaliation claims commonly include the following. Number one, the employee engaged in a protected activity about the workplace, including issues regarding discrimination culture, public health and safety, or compliance with federal and state laws. Two, the employee was subject to some form of adverse workplace consequence. And I'll note here it's the Supreme Court in the United States has indicated it's some harm, not significant harm. So some harm, like, you know, you're used to drive a car for work purposes, now you're not allowed to, or you're taking a desk job versus when you're on the road. So it's really fact-specific. And number three, the adverse employment action was caused by the protective activity, meaning there's a cause and effect, meaning you complained, something happened. Shit hits the fan when you complain. So, and you look at the timing, which is the next part. If an employee engaged in a protected activity and then very soon after started experiencing adverse effects, this is a strong uh indicator that retaliation occurred to you. However, retaliation can often occur months later, but the further you get in time between the adverse, like the protected activity to complain and the adverse action, the retaliation claim becomes weaker. With one caveat, you can have multiple adverse actions occur over a period of time and you connect the popcorn together on a string, and that's a continuing violation of theory of retaliation, and it happens a lot. Typically, it's you know, the employer put the writing on the wall and you didn't want to read it, or you push back and file complaints. I have famously have a case that lasted three years almost, never filed suit, but the person kept on filing complaints and it kept elongating their job, and eventually we reach a settlement, but it's a tactic to use to push back. There's no rule says you can't file as many complaints as you want internally and externally. So there you go. That's a pretty strong weapon to use to fight against your employer's behavior. Helpful evidence can include any sort of criticism the employee received for raising a complaint, a negative shift in performance reviews after the complaint, sudden discipline for activity that previously went unpunished, false or shifting explanations for the adverse action, my favorite, employers do that every time. And then disparate treatment compared to employees who did not complain. You have to demonstrate factually how you're treated differently than your coworkers because you complained.

Where To File And Key Deadlines

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Now, where do you file complaints? The EOC is a first place. If for many discrimination claims in Connecticut and New York, EOC charge must generally be filed within 300 days of retaliatory act. Different deadlines may apply depending on the claim and location. The EOC will then investigate, I guess. I have good friends who work there, but you know, never had any EOC investigation result in a four-cause finding in my career. Maybe only one, but then it never led to anything. So sorry, I am doing the job for the EOC, but I think the EOC knows that. And the EOC may pursue your claim. They may try to mediate the case, and if you're lucky to get that and schedule it, try it. But generally you're going to be issued a note to a right-to-sue letter. That means you get to go to court. State level requirements in New York, an employee may file a complaint for retaliation with the New York State Division of Human Rights. You have three years to file a complaint with that agency. In New York City, an employee may also file with the New York City Commission on Human Rights. New York City claims may also be subject to a three-year limitations period. In Connecticut, you have to file with the Connecticut Commission on Human Rights and Opportunities, and there's a 300-day deadline. In New York, an employee can also file a lawsuit in state court within three years of the retaliatory event.

Remedies Back Pay And More

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So what remedies do you get if you go all the way or what you're looking for? Back pay in the form of wages, bonuses, commissions, or benefits, front pay that compensate you for future lost earnings until you can be placed in appropriate employment, out-of-pocket expenses, including medical pain and suffering, including emotional distress, although I warn you that's difficult to get that in any case other than sexual harassment cases, always include that emotional distress. Policy changes, corrective action, not likely. Attorney's fees and costs, you got to really pursue litigation to get that. Punitive damages, again, you need to basically pursue litigation to get it. Retaliation

Final Takeaways And Next Moves

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is never as clear-cut as the law will make it. That is why it's important to then more than ever for employees to understand what it looks like and what their rights are. Now you know because you've just listened to all of it. The law is clear, though, that it is illegal to be retaliated against for protected activities. Complaining about discrimination, requesting accommodations, blowing the whistle on illegal activity, or participating in an official investigation are all examples of protected activities. In a world where all the balancing scales clearly favor employers, although I'm making every effort to shift it to a more balanced level, as you know, employees need to be empowered to recognize that there are laws and regulations that protect them from retaliation, and that they have a way forward to be remedied when the violation occurs. If you suspect you're being retaliated against for protected activity, keep a timeline. Document everything, like I always say. Consider speaking to an employment lawyer like myself to help you navigate and responding back when retaliation happens. This is what we do every day. Eager to help you. Thank you for listening and letting me be of service.