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When an employer terminates an employee for an activity that is not work-related, it is called retaliatory discharge.

Retaliation, itself, is defined as an adverse action that is taken toward an employee because they filed a charge, served as a witness, or took part in an investigation involving an illegal employment practice. Discuss possible retaliation with an employment lawyer today.

The 3 Elements of a Retaliation Claim in the Workplace

A retaliation claim must have three elements before it can be pursued. Therefore, you need to ask the following questions.

Does the Claim Involve a Protected Action?

A protected action is an activity where an employee resists workplace discrimination by filing a complaint against an employer. Anti-retaliation guidelines in the U.S. make it unlawful to fire an employee who testifies or takes part in litigation concerning discriminatory practices.

Does the Claim Include an Adverse Activity?

Obvious types of adverse activity in the workplace include the following:

  • Denying someone a promotion or demoting them
  • Denying certain job benefits
  • Suspending an employee
  • Discharging an employee

Threats, poor reviews, harassment, and reprimands are some examples of adverse activity.

“Materially Adverse” Actions

The Supreme Court adds that retaliation may include activities considered “materially adverse” to any reasonable employee–whether or not the activities lead to lost earnings and benefits or to other “punishments.”

For example, if you find a co-worker’s or supervisor’s behavior so reprehensible that it discourages you from filing a discrimination claim, you need to discuss your case legally. This is an example of a materially adverse action.

Is There a Causal Relationship?

Another element of retaliation, a causal relationship, shows that an employer committed an unfavorable action because an employee took part in a protected activity. You can either use indirect or circumstantial evidence to show an employer or defendant had a retaliatory motive.

Losing your job can have far-reaching consequences, affecting not only your bank account, but also your confidence and self-esteem. In these situations, it is important to speak to an attorney, as they can handle your case with both discretion and sensitivity.

How to Prevent Workplace Retaliation

To prevent retaliation in the workplace, both workers and employers need to know and learn more about legally protected activities to avoid problems with violations. Companies should offer training as well as feature policies that employees and managers can actively follow or enforce.EEOC-Protected Employment-Based Activities.

The U.S. Equal Employment Opportunity Commission (EEOC) states that the law protects employees from retaliation against the following activities.

  • Filing or giving testimony concerning an EEO lawsuit, charge, or complaint.
  • Speaking to a manager or supervisor about discriminatory practices, including harassment or gender-oriented, age-based, race-related, or religious biases.
  • Answering questions about alleged harassment during an investigation.
  • Refusing to obey orders that would lead to workplace discrimination.
  • Resisting a sexual advance or stepping in to help someone else experiencing this issue.
  • Asking for accommodation for a disability or for religious observance.
  • Requesting income information from co-workers or managers to reveal possible discriminatory wage practices.

As long as the worker reasonably believes they are opposing a possible discriminatory practice, they should not be subject to retaliation.

Proving Hostility in the Workplace

Sometimes, things can get ugly at work. This frequently takes place if an employer feels threatened about a discrimination claim. When this happens, you need to show evidence of being harassed.

In this situation, you need to save and archive voicemails or emails that prove the sender was using harassing language. Moreover, this activity can extend to any harassing behavior that moves out of the workplace, as long as it is connected to the complaint at work.

Safety Concerns on the Job

Employees should not be subject to retaliation if they refuse to perform a job in unsafe conditions or they report a safety violation at work.

Again, an employer may retaliate in various ways – through disciplinary action or by forcing an employee to resign. In some cases, an employer may reschedule a worker so the times they work conflict with family responsibilities.

At-Will Firings in California

In California, liability may be difficult to prove because the state is an at-will work state. This means that an employer can fire an employee at any time without giving them an explanation or a reason for letting them go.

California’s Labor Code 2922 contains certain provisions on at-will employment. Basically, it states that an employer or employee may terminate an employment relationship, provided that the relationship has lasted for at least a month and as long as notice is given.

Retaliation in Workers’ Comp Cases

In some retaliation claims, an employer may strike back against an employee if the worker gets hurt on the job and files for workers’ compensation. It’s illegal for your employer to fire you after your file for the benefits.

Unpaid Overtime and Bonuses

Employers may also react by refusing to pay owed compensation in the form of overtime pay or bonuses.

Whistleblowing Activities

Another legal term associated with retaliation discrimination is whistleblowing.

On the most basic level, a whistleblower is an individual who reports fraud, abuse, waste, corruption, or a danger to public health and safety. They usually report this to someone who works inside a company and has the power or ability to right the wrong. Therefore, a whistleblower frequently works in an organization where the illegal activity takes place. Retaliation discrimination also addresses this activity.

A Recap of Your Workplace Rights

Whenever there is an employer-employee relationship, there’s bound to be a power struggle sometimes. While a supervisor is in their right to delegate work, they do not have the right to infringe on an employee’s workplace rights.

Basic Rights in the Workplace

Your employee rights, therefore, revolve around several main categories. These categories include:

  • Wrongful termination
  • Discrimination and Your EEOC Protected Rights (Religion, Race, Age, Sex, Gender, or Disability)
  • Workplace safety
  • Overtime
  • Wages
  • Fraud
  • Abuse
  • Workplace “Punishments” – Demotion or Rescheduling

Call an Employment Attorney Today

Do you believe you have been let go because of an employer’s retaliation? Maybe you’ve been punished for reporting illegal activity. If so, you need to discuss your case with an experienced employment retaliation attorney. Contact the Mara Law Firm today at (619) 762-2949 so you can review your case.


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