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How Much Do You Know About Workplace Retaliation?


Many employers are well aware of what they can and cannot say or do when it comes to discrimination or harassment in the workplace. But there is one form of illegal harassment that many employers overlook, or which they are not aware of: Retaliation.

Why Retaliation Can Get You in Trouble

Retaliation is dangerous for employers and businesses, for a number of reasons.

One reason is that any worker, regardless of national origin, gender, or race—can sue you for retaliation; the worker need not be a member of any protected class or minority group, to file a retaliation claim.

Another danger is that employers often retaliate in subtle ways. They find that they “don’t like” an employee who has asserted his or her rights, or who is seen as “a complainer.” Often, just as in real life outside of work, we treat people differently in subtle ways, out of spite, frustration or hostility towards that person.

What is Retaliation in the Workplace?

At its most basic level, retaliation is where an employee is punished for asserting a legal right that the employee has a right to assert.

It’s even retaliation to punish an employee who complains on behalf of or to protect another employee—for example if Tom reports that he saw Mary being harassed, and Tom gets retaliated against, Tom can sue—even though he was just reporting what he saw happen to another employee.

By “asserting a legal right,” that doesn’t mean that the employee has to be reporting anything illegal, or whistleblowing. Punishing an employee just for filing for bankruptcy, or for making a workers compensation claim, or for taking legally allowed medical leave, all can lead to retaliation claims.

Whistleblowing and Retaliation

But sometimes, employees do complain about illegal activity that they believe they have observed in or at your business.

When they complain or make such reports, the best course is to try to find and correct what the employee is reporting—not to punish the employee. And you cannot retaliate against an employee because he or she “didn’t go to a supervisor first” before reporting illegal activity to government authorities or law enforcement.

These are sometimes called whistleblowing claims. Retaliation against the employee can lead to double the problems: now you have a retaliation lawsuit, in addition to the allegedly illegal activity that the employee was initially reporting.

And it doesn’t matter if the whistleblowing employee was correct or not. Retaliating against an employee who, in good faith, makes a report about illegal activity that turns out to be legal, or which just turns out not to be true, can still lead to a retaliation lawsuit.

Subtle Punishment

Remember that retaliation doesn’t have to be firing someone. Even more subtle behavior can be seen as retaliation. For example, excluding the employee from better work assignments, or from office social activities, or from training activities, or from benefits other workers are getting, all can be seen as retaliation.

Don’t get in legal trouble with issues related to your employees. Call the West Palm Beach commercial litigation attorneys at Pike & Lustig today.




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