Employees in the United States have certain rights under both state and federal law. If your employer violates those rights, you have the right to report them. Additionally, if you witness a co-worker’s rights being violated, you have the right to report the violation and participate in an investigation relating to those infringements.
But many employees hesitate to protect their rights at work for fear of retaliation. What if you get fired? Or what if you get demoted to a position that is intolerable or lower-paying? These and other fears typically underlie an employee’s reluctance to stand up for what is right. But the truth is, you are protected from employer retaliation in these situations.
So if you fear reporting workplace violations or if you have suffered retaliation for making a report, it is time to speak with a lawyer. An experienced employment legal matters attorney can help you sift through the facts of your case, stand your ground, and seek the justice that you deserve.
What Is Protected Activity?
Before we can have a meaningful discussion about retaliation, we must first define what we mean by protected activity in the workplace. In general, protected activity refers to actions that an employee may take under the law in response to illegal or unethical workplace conditions. There are a number of state and federal equal opportunity employment laws that define illegal discrimination, harassment, and other activity that is prohibited at work. Here are some equal opportunity employment laws that exist to protect workers in Maryland:
- The Civil Rights Act of 1964;
- The Code of Maryland §20-606;
- The Fair Labor Standards Act (FLSA);
- The Age Discrimination in Employment Act (ADEA); and
- The Americans with Disabilities Act (ADA).
One example of the legal rights these laws protect is the right to be free from discrimination based on race, sex, sexual orientation, country of origin, gender identity, age, disability, or marital status. These laws also protect against sexual harassment and establish basic ethical and safety protocols consistent with public policy.
So if an employee is subjected to discrimination or harassment, they have the right to file a complaint. A lawyer can help you determine whether you should file your complaint with the U.S. Equal Employment Opportunity Commission at the federal level or if you should begin your efforts at the state level by filing with the Maryland Commission on Civil Rights. Either way, once you file a complaint alleging illegal activity on the part of your employer, the law prohibits the employer from retaliating against you.
Three Elements of Proof
You must be able to prove three elements for a successful employer retaliation claim:
- You took part in protected activity;
- Your employer retaliated against you for that activity; and
- Your employer’s retaliatory action was in response to the protected activity.
Taking part in protected activity basically means that you asserted your rights or the rights of a co-worker. This usually means that you reported illegal discrimination or other illegal activity. However, it also includes participation in an investigation into claims filed by co-workers. For instance, if a co-worker files a claim alleging racial discrimination and you become a witness against your employer in that action, the law protects you against retaliation for your part in that case.
But let’s move on to discuss what constitutes retaliation and how you might go about proving that an employer has retaliated against you.
There are many ways that an employer can retaliate against a worker for “blowing the whistle” on illegal workplace activity. Essentially, any employer action that has negative consequences for the employee can potentially be retaliation. This includes getting:
- Subjected to increased or intense scrutiny while on the job;
- Suspended from work;
- Reprimanded unjustly;
- Evaluated negatively without cause;
- Moved to a less tolerable work environment;
- Assigned new and undesirable work tasks;
- Transferred to another office location that is undesirable or that makes it impossible to keep your job; and
- Ridiculed by your boss either alone or in front of co-workers.
As you can see, there are many ways for an employer to retaliate. But proving that any specific act or set of actions was retaliatory in nature can be challenging. Such proof requires getting into the mind of your employer to a certain degree to assess their motives. And although it can be difficult to prove what someone’s intention was, your attorney will look for certain combinations of actions to ascertain motive.
Here are some tell-tale signs that your employer has retaliated against you.
If you file a claim against your employer and notice shortly afterward that they are treating you differently, there is a good chance that you are the victim of retaliation. Generally speaking, the closer in time that these two events occur, the stronger the correlation is and the stronger your retaliation case becomes.
If your employer takes negative action against you, you will naturally ask for an explanation. If the explanation your employer gives seems unlikely or falls apart easily, they may be covering for retaliatory behavior. Likewise, if you receive contradictory explanations from different supervisors or the reasons keep changing, you are likely being retaliated against. So always ask for an explanation. And if you can, get it in writing each time a supervisor gives you an inconsistent explanation. If they won’t put it in writing, be sure to keep good notes. This can go a long way in proving your claim down the road.
Essentially, if your employer’s attitude and treatment of you changes suddenly and without cause, it can serve as proof of motive. This is particularly true when no other employees are similarly affected and when no decline in productivity or job performance accompanies these sudden changes.
Not only are employers prohibited from retaliating against you for filing claims against them, they cannot bar employees from participating in investigations into company conduct. They cannot pressure you to refuse to cooperate with investigations, and they cannot pressure you to lie for them. If you believe that you are the victim of workplace retaliation, you need the protection of the experienced employment legal team at the Smithey Law Group. We will be your advocate during this stressful process, and we will work to protect your legal rights. Call us at 410-919-2990 or contact us online today.