Protections against employer retaliation

Employers who have been retaliated against need to be familiar with what is considered retaliation and how they can establish a claim for workplace retaliation. To establish a claim for employer retaliation, the worker needs to show:

• They engaged in protected activity. Protected activity can include complaining about the employer’s illegal discrimination, participating in a complaint concerning an employer’s illegal activity or participating in an investigation into prohibited activities the employer is engaging in.
• They were punished in some way such as they were terminated, which can be considered wrongful termination, they were denied a promotion, they were denied benefits, they were demoted or their hours were cut.
• The punishment or negative action the employee was subjected to by the employer must have resulted from the employee’s participation in some protected activity.

Ways that employees can establish that they were fired for engaging in a protected activity can include demonstrating that they were in line for a promotion but were removed from consideration. If they can also demonstrate there was no other reason for them to be removed from consideration for the promotion, they may have a claim for unlawful retaliation.

Employees are protected from retaliation and unlawful termination in certain circumstances. Employers may think they can fire an employee for any reason but that is not always true. They cannot fire an employee for participating in a protected activity.

However, this does not mean that Texans do not have protection from workplace retaliation.

Many workers in the Houston area who feel like they were disciplined or fired for trying to speak up about improper conduct or otherwise do the right thing may actually have legal options depending on the circumstances.

They should consider speaking to an experienced employment law attorney before assuming that nothing can be done.

For example, public employees in Texas have broad protections should they choose to report illegal conduct to the appropriate authorities.

Likewise, an employee may be protected if he or she has signed a contract for employment and that contract offers protection against retaliation.

Private employees may have whistleblower protection under state and federal law

Private employees have more limited whistleblower protections, but these still apply to a number of situations.

For example, Texas workers enjoy the right to report child abuse and neglect. This right may be especially important for those who work in professions like childcare and education.

Many healthcare employees also enjoy protection when they are reporting violations of various laws meant to keep patients safe and healthy.

Under both state and federal law, Texans may report employment discrimination.

Likewise, there are protections for reporting violations of laws and regulations meant to ensure workplace safety. On a related point, a Texas employer is not allowed to punish an employee for filing a claim for workers’ compensation benefits.

Other state and federal laws may also apply to an employee’s situation.

Theoretically, an employer could terminate an employee because they didn’t like the employee’s shoes, or because the employer just woke up on the wrong side of the bed that morning. But, if the employer decided to fire the employee based on one of the exceptions, then employer has violated the law, and the worker can hold the employer liable for wrongful termination. Remedies for wrongful termination can include reinstatement in their old job, back pay, punitive damages and more.

Exceptions

There are several exceptions to the rule of at-will termination. Perhaps the best known involve unlawful discrimination. Under state and federal laws, employers cannot fire employees because of their race, color, religion, national status and several other protected categories.

Related to these anti-discrimination provisions is another exception: It is against the law for an employer to terminate an employee in retaliation after the employee has asserted their right to be free from unlawful discrimination, or to take part in unlawful discrimination. The U.S. Equal Employment Opportunity Commission refers to this as “protected activity.”

Example

For example, imagine employer Alec instructs mid-level manager Barry to fire employee Caroline. Barry asks Alec why, and Alec says he wants to fire Caroline because she is Jewish, and he doesn’t want any Jews working for him. Barry knows that Alec is asking him to take part in unlawful discrimination on the basis of religion, and he refuses. Alec gets angry at Barry and fires him the next day.

In this example, Alec has retaliated against Barry for Barry’s protected activity. Barry can now make a claim of wrongful termination. This is in addition to any claim Caroline might have, if Alec carries through with his plan to fire her.

Perhaps the trickiest part of this type of retaliation or discrimination claim involves proving that there was a prohibited motive for the employer’s action. Workers who are considering making such a claim can speak with an experienced employment law attorney to learn more.

What does the program do?

A whistle-blower first files a complaint of harassment with the Occupational Safety and Health Administration office. Investigators from their region’s OSHA protection program then go on a fact finding mission.

They will conduct interviews and they will obtain information from the employee, employer, and any witnesses as necessary. If the state OSHA investigators find that the employee was the victim of retaliation, they can order the employer to restore the employee’s job, earnings, benefits, and any other losses they have suffered.

How is Texas different?

If the whistle-blower was working a private sector job, they fall under OSHA’s whistleblower protection program. If the whistle-blower was a state or local government worker, they are not covered by the federal OSHA protection program. The Texas Whistleblower Act is the main source of protection for these public employees. Instead of OSHA investigators however, an appropriate local or state agency will conduct the investigation.

Why a filer might need help

A whistle-blower might end up filing in the wrong jurisdiction; confusing federal, state, or local tiers of government. Even for public employees, they must file their complaint with the

Under the Texas Whistleblower Act, cases have been ruled out because the complaint was filed with the wrong agency. An attorney with substantial knowledge on retaliation laws can help a whistle-blower file proper documentation.

What is a protected activity?

Generally, the EEOC protects employees by giving them the right to complain of any illegal activity that occurs in the workplace. Some of these protected activities may include:

• Filing complaints, serving as a witness, or otherwise participating in certain investigations or proceedings (e.g. EEO proceedings, OSHA investigation of workplace safety violations)
• Opposing unlawful discrimination or harassment in the workplace (e.g. filing an EEO complaint, filing a complaint with management, refusing to terminate an employee for discriminatory reasons)
• Opposing violations of wage and hour laws (e.g. unpaid overtime, wage theft)
• Exercising your right to take FMLA leave

What is retaliation?

Employer retaliation occurs when an employer takes negative action against an employee for engaging in an EEO protected activity. Some of these negative actions may include:

• Termination of employment
• Reduction of pay or salary
• Reduction of work hours
• Demotion
• Job or shift reassignment
• Denying time-off requests
• Unwarranted negative performance reviews or disciplinary action against you

Filing a claim for retaliation

If your retaliation claim stems from your complaints of discrimination or harassment, you must file a complaint with the EEOC. The EEOC will then process your claim, contact your employer, and attempt to settle the matter. If that is not possible, the agency may issue you a ‘Notice of Right to Sue,’ which will allow you to file a lawsuit against your employer. You will then have 90 days to file a lawsuit in court.

If your retaliation claim stems from other complaints (e.g. overtime violations), a ‘Right to Sue’ letter from the EEOC is not required to file a lawsuit against your employer.

It can be difficult to know how to proceed with your retaliation claim against your employer. An employment law attorney can guide you through the process and help you recover lost pay and benefits and other damages.

Study shows how prevalent retaliation is after harassment complaints

A recent study from the Time’s Up Legal Defense Fund found that more than 70% of those who complained about sexual harassment faced workplace retaliation. Time’s Up examined more than 3,300 requests for assistance it received from the beginning of 2018 through April 2020. Seven out of 10 said they subsequently faced retaliation. In addition, the harassment caused employees to suffer from mental health issues, physical problems and economic challenges. Often, people faced more than one kind of harassment. Statistically, 36% were fired; 19% received a negative evaluation on their performance or received other forms of poor treatment; 29% said reporting the harassment did not do any good; and 19% said the harassment hurt their mental health.

Time’s Up was created in 2018 so workers who were unable to pay for a legal claim for harassment could move forward with a case with financial and legal assistance. Regarding harassment, people found themselves being fired, having their hours reduced, receiving less pay and having trouble getting work in the same industry. Because so many are fearful of these exact consequences after reporting sexual harassment, the behavior can fester and get worse. More than half of those who made the online information request said that the person who was harassing them was their direct superior. Thirty-seven percent of the people who allegedly committed the harassment were unpunished.

Legal advice can help with harassment and retaliation at work

Reporting mistreatment and illegal behavior at work can be intimidating. This is especially true if it involved sexual harassment. A commonly stated reason for people refusing to speak out is fear of retaliation and concern that nothing of consequence will be done to the person who allegedly committed these acts. This study shows that this is indeed a legitimate problem. This should not dissuade people who have been harassed from speaking up, but it is something to consider in the aftermath and could be the basis for another complaint. A firm with experience in harassment and employer retaliation may be able to help with a case.

What is considered retaliation?

In general, employer retaliation occurs when an employer terminates an employee or takes adverse action against them because the employee made a complaint against them such as about harassment or discrimination occurring in the workplace. Employer retaliation can look like firing an employee but can also include demotions, poor reviews, pay cuts or reducing the employee’s hours. In addition

It is important to note that protections against employer retaliation apply both to the employee who made the complaint but also to employees who may participate in an investigation of the complaint. Punishments against employees who make a complaint or those involved in the investigation may be considered prohibited employer retaliation.

Examples of when it might not be ok to terminate an employee

It may be considered employer retaliation if an employee is terminated because:

• Reporting a safety violation;
• Filing a workplace discrimination claim;
• Filing a workers’ compensation claim;
• Making a complaint about sexual harassment;
• Requesting unpaid time off;
• Requesting a reasonable accommodation for a disability;
• Reporting fraud or illegal activity by the employer; and
• Other legally protected activities.

Employment laws provide a host of protections for workers. For that reason, employees who believe they have been retaliated against and wrongfully terminated should be familiar with the protections available and the legal remedies that may be available to them.

Retaliation is a real threat to some workers who choose to bring attention to wrongful acts, omissions, or behaviors occurring in their workplaces. For example, if an individual is subjected to harassment at the hands of their supervisor, they should be free to report the misconduct to their employer without feeling as though they may be reprimanded for their actions.

For some workers, reporting bad conduct or deeds can lead to serious threats to their employment. Workers have wrongfully lost their jobs, been demoted, and been deprived of work-related benefits for bringing attention to shortfalls or misdeeds practiced by their employers and agents of their employers. These unjust actions taken against workers are examples of retaliation, and under many state and federal statutes, retaliation is unlawful.

In order to pursue an employment action based on retaliation, a worker must be able to show that the activities that they were engaged in that resulted in the retaliation were protected under the law. They must also show that they were punished for engaging in the protected action by their employer. Different remedies exist to provide victims of retaliation with compensation for their losses.

Workplace retaliation is a serious problem for individuals who wish to do what is right even when it may threaten their livelihoods. Possible claims based on retaliation can be reviewed by lawyers who work in the employment discrimination field, and readers of this post should know that its contents provide no legal advice.

Texas lawmakers recognize how unfair whistleblower retaliation is. To encourage whistleblowers to come forward, state and federal law lets you sue your employer for retaliating against you. If you win, you may be entitled to back pay, reinstatement to your job and other compensation.

Whataburger settles suit for $180k

Whataburger, the Texas-based fast-food chain, has settled a retaliation lawsuit filed by a former hiring manager for Tallahassee, Florida. Her story began after her general manager repeatedly instructed her only to hire white job applicants for the area restaurants, never African Americans.

The manager informed upper management. But instead of correcting this racist policy, management told her to hire workers that “reflect the customer base where we do business.” After that, the manager found herself being assigned too much work and forced into an unwanted shift change. Even worse, she was threatened and abused, sometimes physically.

In settling the suit, Whataburger agreed to pay the manager $180,000. The company also will change its human resources policies, require management retraining and launch an anonymous hotline for workplace complaints.

Whistleblowers deserve praise, not revenge

In a perfect world, an employee like this manager would be rewarded with a promotion for exposing racist and illegal hiring policies being enforced by her direct supervisor. But this is the real world, and sometimes people who do the right thing get their career ruined because of it.

If something like this has happened to you, there are things you can do to restore your reputation and hold your current or former employer accountable for its retaliatory misconduct.