Workplace retaliation occurs when an employer takes adverse action against the employee for having engaged in a protected activity.
Legally protected activities may include the following:
- Complaining about discrimination
- Filing a charge of discrimination
- Participating in an investigation of discrimination
- Opposing discriminatory practices
Anti-retaliation statutes prevent employers from punishing or committing “materially adverse employment actions” against an employee who has taken action and pursued a legally protected activity.
Workplace retaliation may come in the form of the following:
- Firing or unlawful termination
- Sexual harassment, bullying, sexual advances, and discrimination
- Denial of benefits such as pay raises, interdepartmental transfer, training and development, mentoring opportunities
- Assigning the employee to undesirable shifts or unrelated assignments
- Reduction of benefits, pay, or work hours
- Threats for punishment
- Unjustified negative performance reviews
- Threats for or reporting the concerned employee and/or their family to the Immigration department
- Intimidating, abusive, threatening, and hostile workplace treatment
Workplace retaliation often appears soon after the protected activity has taken place. However, there is no set time frame for an employer to act. Retaliation can occur at any time during the employee’s time of employment.
Retaliation is a common problem in the workplace. According to the U.S. Equal Employment Opportunity Commission (EEOC), retaliation is the most common discrimination complaint filed with the agency.
EEOC FY 2020 data have revealed that retaliation was the most frequently claimed charge, accounting for 55.8 percent of all filed charges.
This article will cover the legal protections against workplace retaliation and how you can protect your team from it.
There are a variety of laws that protect workers from retaliation in the workplace.
The most well-known is the whistleblower protection provision of the Sarbanes-Oxley Act, which applies to employees of publicly-traded companies and their contractors.
Other federal laws that protect workers from retaliation include the Americans with Disabilities Act (ADA), Family Medical Leave Act (FMLA), Fair Labor Standards Act, and the National Labor Relations Act.
State laws that protect workers from reprisal vary by state but they may:
- Include protections for employees who report violations of state labor or employment laws
- Participate in an investigation or hearing related to those laws
- Refuse to participate in an activity that would violate those laws
Employees who experience retaliation can file a complaint with the U.S. Department of Labor, the Equal Employment Opportunity Commission, or their state labor agency. Employees may also pursue retaliation claims for wrongful termination or other forms of retaliation under state law.
The Sarbanes-Oxley Act, also known as the Public Company Accounting Reform and Investor Protection Act of 2002, is a federal law that prohibits companies from retaliating against employees who report corporate misconduct, such as fraud or accounting irregularities. The law also requires companies to establish whistleblower protection policies and procedures.
Americans with Disabilities Act (ADA)
Americans with Disabilities Act (ADA) is a federal law that protects employees who report discriminatory or unlawful actions by their manager in the workplace based on their disability.
Fair Labor Standards Act
The Fair Labor Standards Act (FLSA) is a federal law that sets the standards for minimum wage, overtime pay, record-keeping, and youth employment. The FLSA also prohibits employers from retaliating against employees who exercise their rights under the act.
The Family and Medical Leave Act (FMLA)
The Family and Medical Leave Act (FMLA) prohibits employers from retaliating against workers who take up to 12 weeks of unpaid leave for qualifying reasons, such as the birth or adoption of a child, the care of a seriously ill family member, or a personal medical issue—including preventing, denying, or prohibiting their right for a medical leave.
The National Labor Relations Act
The National Labor Relations Act (NLRA) is a federal law that protects workers from retaliation in the workplace for engaging in certain activities, such as organizing a union, going on strike, or filing a grievance.
Fear of retaliation is a legitimate concern why people do not report issues in the workplace.
However, this fear is not a valid reason to avoid reporting issues.
There are legal protections in place to safeguard whistleblowers, prohibiting workplace retaliation. If you experience retaliation after reporting an issue, you can file a complaint with the Equal Employment Opportunity Commission (EEOC).
The EEOC is responsible for enforcing federal laws that prohibit workplace discrimination. They are well placed to investigate your claim and take action against the employer if retaliation has indeed occurred.
Reporting an issue is not always easy, but it is essential to do what you can to protect your team. You can find more information about reporting problems and the protections available to whistleblowers on the EEOC website.
Raise awareness of laws against workplace retaliation.
Workplace retaliation is illegal, but it often goes unreported because victims fear the consequences. Raising awareness of the laws against retaliation can help prevent fear of retribution and keep employees safe.
Businesses can raise awareness of the laws against retaliation by:
- Posting notices
- Providing training
- Communicating the policy to employees
- Educating employees on their rights and how to report any incidents of retaliation
Abide by company policy to file a grievance related to the retaliation if necessary.
Retaliation can damage an employee’s career and financial stability, not to mention mental health and relations with other coworkers.
Employees may feel scared or alone, but they should be reminded that many resources are available, and filing a grievance is the best way to protect their rights.
Ensure that they understand that there’s nothing to lose by filing a grievance. The employee has legal protections and safeguards against retaliation, especially if the company has a policy in place for these situations.
Filing a grievance is the first step in holding the company accountable for its actions.
Invest in a meaningful ethics program.
A strong ethics program and code of conduct policy can prevent fear of workplace retaliation, creating a positive work environment and reducing the risk of reprisal.
Employees who feel that their employer treats its company values and ethics paramount are more likely to report unethical behavior. A robust ethics program will also help create a culture of compliance, which can minimize the occurrence of unethical behavior.
Employers should ensure that their ethics program is tailored to their organization’s culture and business practices. The program should also be updated regularly to reflect any changes in the organization.
Employees should be trained and well informed on the ethics program, and managers should be held accountable for enforcing it.
Have a strong support system.
The human resources department plays a critical role in helping your team understand their rights and protections in the workplace. They can also guide how to report any incidents of retaliation best.
Having a supportive network will help your team feel more confident in taking action against any retaliation they may experience.
Fostering a positive culture and solid employee engagement builds strong working relationships among coworkers. Such a culture, where co-workers see each other as friends who can provide emotional support, is crucial in helping team members overcome the fear of retaliation.
Workplace retaliation is a serious issue and can take many different forms. If your team is experiencing any retaliation in your workplace, it’s crucial to take action right away and seek legal advice.
Employees don’t have to suffer in silence—they can feel empowered to stand up for their rights and protect themselves with the proper training and information.
Inspired eLearning’s harassment and ethics training courses provide information and steps on navigating the fear of retaliation. With Inspired eLearning, your team can overcome the fear of retaliation and create a safe, productive work environment for everyone.
Check out our Harassment Training and Ethics and Code of Conduct training today. Equip yourself with the knowledge and resources you need to protect yourself from retaliation and stand up for your rights.
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