It’s Easier Than You Think to Get in Trouble for Retaliating

Retaliation claims are some of the most common claims filed against employers. Retaliation claims are different from other kinds of lawsuits because you don’t have to be a “bad person” to retaliate.

Many of us would never discriminate or harass someone because of age or gender or race or religion or other protected classes. But we are human, and we do get angry (or at least, a little upset) at workers for doing things, and that upset can often lead to inadvertent retaliation.

Exercising Legal Rights

As a general rule, you should never retaliate against a worker doing something that he or she has to do or which he or she has a right to do.

One good rule is to ask whether there is a law that specifically allows the employee to do something. If so, do not retaliate against the employee for doing those things.

So, for example, if an employee needs extended time off because of an illness, there are family medical leave acts that allow the worker that time. That means, it is illegal to discriminate against the worker for taking that time or using rights provided under that law.

Duties and Crime Reporting

The same goes for reporting a crime—even if the crime is alleged against you, or your business. Many employers see these kinds of employees as “snitches” when they report a company’s illegal activities to authorities. But an employee has every legal right to do this.

If you think a report is done out of malice, or is completely falsified, you can sue the employee later, if you feel there is bad faith or defamation—but don’t retaliate against the employee, because all of us have a right and a duty to report illegal activity.

Any time someone has a duty to do something, they cannot be retaliated against for doing it. A common example is showing up for jury duty, or testifying as a witness in trial. The employee is under a summons or subpoena, and must legally comply—that would make it illegal for you to punish or retaliate against the worker for doing any of these things.

Using Benefits or Legal Rights

Any benefit that you give to an employee at work is protected. Think of workers’ compensation, which almost all employees have a right to have and to access. It is illegal to harass or retaliate against a worker because he or she utilized workers’ compensation benefits.

Even if the benefit is not one provided at work, but which is provided by law, you cannot retaliate. So, if an employee were to file for bankruptcy, or were to sue someone (other than you), you couldn’t punish or retaliate against the worker—the right to access to the court system and to file bankruptcy is one that we all have.

Remember that retaliation can take many forms, and employees may be very alert to the fact they could be retaliated against. Make sure to involve your legal counsel, when disciplining employees who you feel may allege retaliation.

Let the West Palm Beach commercial litigation attorneys at Pike & Lustig help you with your employment and labor law issues.

Sources:

dir.ca.gov/dlse/howtofilelinkcodesections.htm#:~:text=Labor%20Code%20section%20230(c)%20prohibits%20an%20employer%20from%20discharging,a%20threat%20of%20physical%20injury%2C

eeoc.gov/retaliation