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How Can Florida Employers Defend Themselves Against Retaliation Claims?


Retaliation tends to be the most commonly filed charge with the Equal Employment Opportunity Commission (EEOC), accounting for nearly 52% of charges filed.

For many reasons, retaliation claims are also some of the most complicated for Florida employers to defend and prevent. Luckily, if you own a business in West Palm Beach or elsewhere in Florida, there are specific steps you can take to protect yourself from a retaliation lawsuit or prevent one from being filed.

How to Prove and Disprove Unlawful Retaliation in Florida?

In order to successfully defend yourself against a bad faith retaliation claim in Florida, you must understand what employees must prove to establish unlawful retaliation. Under Florida’s employment law, to establish retaliation in the workplace, Florida employees must prove that:

  1. They engaged in a protected activity;
  2. Their employer took an adverse action against them; and
  3. There was a causal connection between the employee’s protected activity and the employer’s adverse employment action.

Typically, the second element is the easiest to prove, which also makes it the easiest to defend for the employer who allegedly took retaliatory action against the claimant. This element requires proving or disproving that the employee experienced an adverse change in the terms or conditions of their employment (wrongful termination, demotion, loss of pay or benefits, etc.).

Whether the employee participates in any protected activity, on the other hand, and whether this activity can be linked to a subsequent adverse action taken by the employer require a thorough investigation and analysis.

Did the Employee Actually Engage in Protected Activity?

Some activities that employees can participate in are protected by EEOC statutes. Similarly, employees are protected by federal law when they oppose an unlawful practice prohibited by the EEOC statute.

To have a valid retaliation claim, an employee must engage in any of the following protected activities:

  • Making a complaint of misconduct
  • Complaining about discrimination or harassment
  • Using federal or state family leave
  • Filing a safety complaint
  • Complaining about wage and hour issues
  • Testifying in or in any other way assisting an internal or external investigation
  • Opposing discrimination, harassment or another unlawful activity or practice in the workplace (as long as the employee has a reasonable belief that something is illegal)

The Employer’s Compliance with Policies and Procedures

Another critical step in preventing retaliation lawsuits is to respond to claims in accordance with your company’s policies and procedures. It is vital that your company not only has these policies that outline how to handle employee complaints but also that management and supervisors comply with those procedures.

In addition to responding to claims in a timely manner and conducting a thorough investigation, employers are also advised to preserve all evidence that has any value to the employee’s complaint and/or employment.

An anti-retaliation policy must also be in place. That policy must not only strictly prohibit any retaliatory actions against employees who engage in protected activity but must also be followed by management and supervisors.

What Are the Defenses to Employee’s Unlawful Retaliation Claims?

A retaliation claim filed by one of your employees should be handled with the help of a knowledgeable West Palm Beach employment law attorney. The suitable defense strategy depends on the allegations in the employee’s claim. Typically, employers in Florida defend themselves against retaliation claim by demonstrating that the employee:

  • Had poor job performance
  • Violated company rules
  • Was insubordinate
  • Engaged in unethical or unlawful conduct with fellow co-workers
  • Was not qualified as another applicant for promotions or pay raise

Technically, a company can defend itself against an employee’s retaliation claim by proving that the claimant was treated in the same manner as employees who did not file any complaints. Contact Pike & Lustig, LLP, to discuss your case. Call at 561-291-8298.




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